1 Ga. 637 | Ga. | 1846
By the Court
The case made in this record involves the doctrine of what is called, in the books, the wife’s equity.
The cases in relation to this subject- are exceedingly numerous.
The precise extent to which the doctrine of the wife’s right in equity to a settlement out of her equitable and legal choses in action goes, we are free to admit, is not satisfactorily settled. Yet we do not hesitate to say, that the right itself is as clearly and as permanently established, both by authority and upon principle, as any known to the equity jurisprudence of England or America. It is difficult to trace its origin and to ascertain the grounds upon which it was at first established.
It owes its birth to the parental interposition of a court of equity, to provide, out of property accruing to a wife, for her support and that of her children, when they have no other sources of maintenance ; against
He unquestionably would not apply his earnings to the payment of debts contracted by a son-in-law, (and not contracted upon the credit of such earnings in his possession,) or to minister to his extravagance and dissipation, until he had first provided for his daughter and her children. Equity, occupying his place, will do what she is instructed by reason and humanity he would do. Natural justice asserts the right of a suffering child to her patrimony, as against the right of strangers to her blood ; or even of her own husband, when he is, whether by vice or misfortune, incapable of providing for her. And without refining upon this subject, it is not difficult to believe, that, after all, it is upon natural justice that the whole doctrine is based.
At common law, marriage amounts to an absolute gift to the husband of all the goods, personal chattels and personal estate, of which the wife is actually or beneficially possessed at that time in her own right. All these he acquires an absolute property in and dominion over, by the marital right. He does not require the aid of a court of law or equity to establish his claim to her property in possession; he takes it free from any right of survivorship ; he may dispose of it during life or bequeath it at his death, and if he does not will it away, it goes to his personal representatives by the law of descent. — Clancy’s Husband and Wife, 1 to 3; 1 Coke Litt. 351 b; Story’s Equity, sec. 1402; 1 Roper, 169. But to her choses in action, such as debts due by obligation, or by contract or otherwise, the husband is not absolutely entitled, unless they are reduced into possession during the coverture. — Coke Litt. 351, a; 2 Roper on Husband and Wife, 204, 205; Clancy, 3 to 9. In these the husband acquires a qualified property, which may be asserted by action at law, and if not reduced into possession during his life, they survive to his wife, and at her death descend to her representatives.
Such are the rules of the common law, according to which the wife has no right and no process by which to set up right to a provision out of her choses in action, equitable or legal. In the language of Bracton: Omnia, qua sunt uxoris, sunt ipsius viri, non babel polestatem sui, sed vir.” It is at this point of common-law inability, that equity comes to her relief, and laying its hand upon her choses in action — her fortune,
If, however, the wife should die, pending the proceedings, without waiving a settlement, the children may, by a supplemental bill, enforce their claim.— Clancy, 527-8; 2 Dick. 604; 10 Vesey, 89; 13 Vesey, 1, 8, 9; 6 Sim. R. 576, 584.
It has been claimed, notwithstanding, that where the mother dies without having obtained a settlement, or a decree for one, the children have an original substantive right to a provision. — See Atherly on Marriage Settlements, 355, 356; 13 Vesey, 7; 2 Atk. 180; 1 Dick. 391; The contrary of this seems to be the better opinion.
In all cases where the husband comes into a court of chancery, asking- its aid to acquire the possession of his wife’s property, whether it exists in the form of an equitable or legal chose in action, that court having acquired the power to act upon the subject matter, will use it to do equity to both partios. As he seeks equity, it will hold him to do equity before it will grant it, and upon this principle he is, in such eases, required to make a suitable provision for her and her children.— Story Equity, sec. 1408 ; 2 Atk. 419, 420; 2 Vesey, 561; 1 Vesey, 538, 539 ; 1 Peere Williams, 459; 2 Johns. Ch. Reps. 206, 208; 1 Paige R. 166; 2 Paige, 308; Clancy on Marr. Women, 456 to 475.
It is of no consequence in such a ease, says Story, “ whether the fortune accrues before or during the marriage ; whether the property consists of funds in the possession of trustees or of third persons — or whether it is in the possession of the court, or under its administration, or not; for under all these circumstances the equity of the wife will equally attach to it.” — Story’s Equity, sec. 1408; 2 Roper, 259.
It will not only be enforced in cases where the husband goes into a court of equity to acquire possession of her fortune as stated above ; but it will be enforced where she or her trustee brings a suit in equity for the purpose of asserting it. This position has been controverted, and for the reason that the husband is not asking equity, and therefore the jurisdiction of chancery does not attach ; and the reason of the law ceasing, the law itself ceases. But it is now beyond controversy established, that whenever the wife is entitled to this equity, she may assert it as plaintiff, by bringing a bill by her next friend. — Clancy on Marr. Women, 471 to 475; 1 Roper, 260, 263; 5 Vesey, 737; 1 Strange, 503; 1 Stra. 238; 2 Cox R. 422; 10 Vesey, 574; 6 Paige, 366.
Chancery will lay hold of the property of the wife as far as may be within its power, for the purpose of providing- a maintenance for her.
It has been made a question whether the wife’s equity attaches upon her legal dioses in action, and this is one of the points made in this ease — the property out of which the wife here seeks her equity, is her distributive share of her deceased father’s estate. It is urged by counsel
We are aware that such a case is not made by this record — for there was no suit in equity by the husband, or others claiming under him, for this property ; but we find it expedient, notwithstanding, to state the principle as above.
Farther — the English rule in equity is, that where there is a suit in the Ecclesiastical courts for subtraction of a legacy, and there is a married woman to be protected, or a trust to be executed, the court will restrain the suit by injunction. — 1 Atk. R. 491; 1 Hagg. Eccl. Reps. 535.
Chancery will restrain a suit in the ecclesiastical courts, by the husband, for the wife’s legacy, until provision is made for her. — 2 Kent, 140; 2 Atk. Reps. 419; 1 Strange, 238. Chancellor Kent does not in terms say, but ho clearly intimates his opinion, that chancery may, on just principles, restrain the husband from availing himself of any means, “ either at law or equity,” of possessing himself of his wife’s personal property in action, unless ho make a competent provision for her.
In the State of New York it is settled that equity will, on a bill filed by the wife, restrain the husband or his assignees from possessing themselves of her property at law, until provision is made for her.— Van Epps vs. Van Deusen, 4 Paige, 64; Fry vs. Fry, 7 Paige, 462; 1 Hoffman’s Ch. R. 462.
But we do not concede that a distributive share of an estate is in character of a legal chose. Executors and administrators are treated as trustees of the fund committed to their charge, and in that character are subject to the jurisdiction of a court of equity ; and, therefore, an unpaid legacy,'or a distributive share of an estate, is an equitable interest. Certainly the wife, under coverture, has no right of suit at law for it. She must needs go into a court of equity to secure her settlement. The interest is of equitable cognizance — it is within roach of a court of equity. The right to her equity, in this case, therefore, so far as the character of the property is concerned, does not admit of doubt.
In accordance with those views, it has been held in England that a wife need not wait until suit is brought by her husband, in the Spiritual Court, for a legacy or share in an intestate’s estate. She may file at once a bill against him or his assignees for a settlement out of the 'legacy or share. — Atherly, 351; Clancy, 443; 5 Vesey, 537; 10 Vesey, 578.
The assignees in bankruptcy or insolvency of the husband, also his assignees for the payment of his debts generally, and the special assignee, or purchaser from him for a valuable consideration, aro bound to make a settlement upon the wife out of her choses in action or equitable interests assigned to them, in the same way and to the same extent and
If the wife is already amply provided for under a prior settlement, equity will not interfere, for one of the grounds upon which her equity rests, is the destitution of her circumstances. Settlement before marriage, the intended wife being of age, declared to be in consideration of her present estate, as well as all that which may accrue to her after marriage, will bar her equity ; for the husband, in that case, stands in the light of a purchaser of all her choses in action.' — Clancy Marr. Women, 512; 2 Vesey, Sen’r. 677; 9 Vesey, 96; Atherly, 358. And if an adequate settlement is made upon the wife after marriage, in consideration of her equitable property, it will exclude her from farther provision. But in this case the court will inquire into the adequacy of the settlement, and if inadequate, a farther provision will be awarded her. — Clancy, 510, 520; Atherly, 359.
seems, too, a may waive her equity-in some eases in open court, although Lord Hardwick, in one instance, refused to permit it to be donc. — Clancy, 510, 515; 2 Vesey, Sen’r. 579.
Thus have I stated what appears to me to be the principal rules which constitute the doctrine of the wife’s equity. They run out into various details which I do not propose to trace. It remains to apply them with greater particularity to the case in hand. To do so, it is necessary to recapitulate the facts ; premising that the able counsel who argued this cause for the plaintiff in error, does not deny the general doctrine on this subject, but denies its applicability to the facts disclosed in (this record.
The of Mrs. Bell died intestate, leaving an estate in negroes and other property, in which she was interested as distributee. Administration was taken upon his estate. William Jewell, the administrator, applied to the Court of Ordinary of Oglethorpe county, at an adjourned session, for the appointment of commissioners, under our statute, to divide the negroes belonging to the estate, and they were accordingly appointed. Of this application, it does not appear, from the record, that either Mrs. Bell or her husband had notice. The commissioners divided the negroes into as many portions as there were distributees, setting apart, to use their own language, one of them to William J. Bell, in right of his wife Eliza. Neither Boll nor his wife were present at the division, and the return of the commissioners declares that they, not being present or represented, their share was left in the hands of the administrator. The return was recorded on the books of the Court of Ordinary. No order was passed, making it the judgment of the Court of Ordinary, and no refunding bond was given.
The property was at no time out of the possession of the administrator, but continued in his possession until it was levied upon, in his hands,
The defendants demurred to the bill upon several grounds, which were overruled by the presiding judge. The questions made occurring on demurrer, all the statements in the bill are admitted to be true.
The principles stated in the previous part of this opinion, are considered as sustaining the court below on all the points made in the assignment, except as to the questions growing out of the partition of the property, and need not be again, or with further minuteness of application, repeated. The exceptions founded upon the action of the partitioners, although several, resolve themselves into one, and may be stated as follows : “ The marital rights of Bell, fully attached upon the property, by virtue of the division of the estate by commissioners appointed by the Court of Ordinary, setting apart Mrs. Bell’s portion to him in right of his wife, and it was, therefore, liable to pay his debts ; that, by the return of the commissioners, and the acceptance of it by the Court of Ordinary, being, by such acceptance, made the judgment of that court, the portion set apart to Bell, in right of his wife, vested absolutely in him, and is not'subject, therefore, to his wife’s equity; and that the presiding judge erred in ruling contrary to those positions.”
These were the grounds relied upon mainly in the argument; the points made as to the regularity of the proceeding under the order of the court, for a division, and as to the refunding bond, are considered as involved in these grounds. It occurs, then, to the court, that the only question for them to determine is this, to wit: According to the facts, was there such a reductio in possessionem-, by Boll, the husband, as vested the ownership of the property in him, as against his wife’s equity ? for, word the exception variously as you may, in our judgment, this is the only point left in the case.
In relation to marital rights, so far as they are concerned with an equitable interest or chose in action, we remark that they are inchoate. They, as against the wife’s equity, amount to nothing ; and as against her right of survivorship, they are to be considered as a mere right to reduce into possession. The right of property in them exists upon condition ; the absolute ownership can be only upon compliance with it. If, in the one case, the wife asserts her equity, or, in the other, the husband dies before he gets possession, his marital right is as though it
The statute of Georgia requires, "before the assignment to the distributees of their respective portions, they shall execute, to the administrator, a bond conditioned, to refund their respective proportion of the debts which may be established against the estate. In the action of trover, we are clearly of opinion, that before the plaintiff could recover, he would be held to show the execution or tender- of the refunding bond. The record does not show that a bond was given, but the contrary. It appears, from the record, that Bell and wife, not being present or represented, their share wus left with the administrator, where it remained until it went into the custody of the law. There was, therefore, no
Again : if the proceedings under the statute vested the property, by operation of law; ill Bell, then is the administrator discharged fully of his trust, and if,'being still in possession of the property, he makes way with it, he and his securities would not be liable on his bond. We cannot hold to a position, whose results would be thus absurd and unjust. We are of opinion that the property in Mrs. Bell’s share, according to the facts of the ease, did not vest in her husband. It does not help the matter to say, that the division made the share of Mrs. Bell liable to a levy and sale, and that the purchaser would not get a better title than Bell had. All this may be true, and, so far as the argument affects this case, the'reply is, that admitting this to be so, the wife’s equity may be asserted equally and at all times against the husband, his assignees, his creditors and purchasers under execution against him. She will not be compelled to stand by until a sale, and then go upon the purchaser, who may buy subject to her equity. Equity will give her relief by enjoining creditors, and settle her rights, whenever the property is within its reach.
As to the possession, the bill states that Bell never had the possession, and that it never was out of the administrator. The demurrer admits the truth of these statements, and perhaps it would be safe to rest this point here. But if it be, as it was contended, that the bill and its exhibit, viz., the return of the commissioners and the judgment of the court thereon, prove that there was possession, then let us look into that exhibit and see how the matter stands. There was in truth no order taken to make the return the judgment of the court — it was spread upon the records hqwever, and we are willing to admit that this is presumptive proof of its having been made the judgment of the court. Now, the judgment is co-extensive only with the return — in other words, the return is the judgment. What, then, does the return prove, as to Mrs. Bell’s share ? It proves that certain slaves were set apart for Bell in right of his wife, not assigned to him. Just as the minor child’s part was set apart, there being no guardian to receive it. It proves, for it says, that there was no representative of Bell to receive it, and for that reason the .return declares that it was left with the adnpnislrator. It <^as left with him, to be paid over to Bell, beyond all doubt, when he should apply for it and give the bond which the law requires. And we must believe that it was the intention of the commissioners that the administrator should keep the property, until the law was complied with. What, then, does