Hatcher v. Cade

55 Ga. 359 | Ga. | 1875

Jackson, Judge.

Samuel Hatcher died, leaving a widow and children, and made a will providing for the disposition of his property. The substance of the will was that the property should be kept together for maintenance and education until his widow or one of the children should marry, or a child become of age, and then that child, or the widow, if she married, should have her share, and to that end that commissioners should be appointed by the ordinary to divide the estate among them. The widow and children, without waiting for the commissioners to do so, divided the estate among themselves. All were of age except two, and these two acquiesced on coming of age. Two of the children were of age, and one had married when the division was made. Cade, the defendant in error, obtained a judgment, long after this division, against the widow, and levied it upon the lands set apart by the division to Samuel Hatcher and Patonia Hatcher, who claimed it under a deed made to them in pursuance of the division, and before the judgment. The court held and'charged the jury that one undivided sixth of these lands was subject to the execution, there being the widow and five children left legatees under the will.

1, 2. We think the court erred. The division by the legatees bound each of them who was of age, and when the minors, the claimants here, assented and ratified on coming of age, they, too, were bound, and each legatee took a several interest as it was allotted to each legatee. Cade was not a creditor of the estate, but of Mrs. Hatcher, and could go only on her separate share after the division. Notwithstanding that the law, or the will, which is the law here, provides a certain way in wdiich an estate may be divided, if the parties in interest, all being of age, divide, it is legal;, and if some be not of age, but when of age assent, it also legalizes the division. This principle has been settled by this court by frequent rulings: Turk vs. Turk, 3 Kelly, 422; Josey vs. Audulph, 13 Georgia, 484; Finch vs. Finch, 14 Ibid., 367.

We hold, therefore, that the court erred in ruling that one-sixth of the property levied on was subject to the fi. fa. in favor of Cade against Mrs. Hatcher, and reverse the judgment on that ground.

Judgment reversed.