Hooper v. Howell

| Ga. | Jul 15, 1873

McCay, Judge.

The precise nature of the possession which constitutes a personal chattel in possession, so as that it passes completely to the husband on the marriage, is not clearly settled by the authorities. It is difficult to reconcile even the decisions of our own Court. In Pope vs. Tucker, 23 Georgia, 483, and in Prescott vs. Peavy, 29 Georgia, 59, Judge Benning, in delivering the opinion of the Court, gives it as his judgment that a personal chattel belonging to the wife, though in the adverse possession of another, is in her possession sufficiently to defeat the right of survivorship. But this is contrary to numerous other decisions': 1 Kelly, 637; 3 Ibid., 549; Stephens vs. Bell, 4 Georgia, 223. And Mr. Bishop says this position is contrary to both principle and authority: See Bishop on Law of Married Women, sec. 71, and authorities cited. But however the authorities may be in conflict upon this point, so far as I can find, they are uniform on a general principle which, we think, controls this case. When the interest of the wife is a share in an undistributed estate, the authorities are uniform that whilst it (hus remains, the marital right of the husband does not attach: Lewis vs. Price, 3 Rich. Eq., 172; Stewart vs. Stewart, 31 Ala., 207" court="Ala." date_filed="1857-06-15" href="https://app.midpage.ai/document/stewarts-admr-v-stewarts-heirs-6506110?utm_source=webapp" opinion_id="6506110">31 Ala., 207, 216; McCauley vs. Rodes, 7 B. Mon., 462" court="Ky. Ct. App." date_filed="1847-07-29" href="https://app.midpage.ai/document/mccauley-v-rodes-7128893?utm_source=webapp" opinion_id="7128893">7 B. Mon., 462; Wheeler vs. Moore, 13 N. H., 478; Hill vs. Hill, 1 Strob. Eq. R., 1; 32 Ver., 775; 3 Sneed, 536; 10 Ver., 446. Such, too, has been the uniform ruling of this Court: Bell vs. Bell, 1 Kelly, 637; Sayre vs. Flournoy, 3 Ibid., 549; Chappel vs. Causey, 11 Georgia, 24; Lowe vs. Cody, 29 Ibid., 120. And this rule is founded on principle, since, in the nature of things, the share of the wife cannot be known. Her interest in any specific article is not defined. The law authorizes and requires a distribution, and one distributee may, in the division, get one article or one tract of land, and another get another. The principle applies to real as well as to personal assets. Our law makes it the duty of the administrator to distribute the one as well as the other: R. Code, secs. 2543, 2547. In this distribution, one may get personal property and another land. The question of advancements also arises, and debts due the intestate by the heir, all of which are to be adjusted in the distribution. The case does not stand, therefore, like a case of ordinary tenancy in common, where the title is complete in each to his undivided share.

Our law declares that the real estate shall go to the husband “as personal property doth:” Act of 1870, Cobb’s Dig., 315. And our statute of distribution says, real and personal estate shall be considered as “ precisely on the same footing.” The language of the Act of 1789 is, that “real and personal estate shall always be considered, in respect to said distribution, as being precisely on the same footing, and in cases of intermarriage the real estate belonging to the wife shall become vested and pass to the husband in the same manner as personal property doth. And in case of the death of the husband thereafter, intestate and without will, shall descend and become subject to distribution in the same manner as personal property.” This statute is the law which regulates the rights of these parties. Here is real estate. The wife had an interest in it. On her marriage with Green, the statute says it passed to Green exactly as if it were personal property; and at Green’s death it became subject to distribution precisely as personal property. Had it been personal property, no person would for a moment contend that the marital rights of Green would attach, so long as it was undistributed. How, then, can this Court be authorized to say that, it being realty, it did pass though undistributed.

The present proceeding is a peculiar one. The guardian applies to the Ordinary for leave to sell. The mother comes forward and claims the property: Code, section 3690, 3691. "We are aware that both parties came into Court on the assumption that the rights of either is to a specified portion of this whole tract of two thousand acres. But the proceeding is a peculiar one, and on the trial the truth of the case appears, to-wit: that the father of Mrs. Hooper was the owner of the whole, and as the rights of both parties are from him, we recognize the right of both to a full investigation of the whole matter. The verdict, as it stands, does not, under the facts as they appeared, decree the truth of the case. We are clear that if there was never any distribution of this land — any division of it between the heirs-at-law of Mr. Pitman, during the lifetime of Gh'een — it survived, under the law, to Mrs. Green, now Mrs. Hooper. It does not appear that this was done. This verdict — indeed the case, as it comes into Court — assumes this to have been done. We think, therefore, the verdict does not do justice to the rights of the parties. We, therefore, give this direction to the case. We think this verdict ought to be set aside, and the case stand for a further hearing, so that either party may take such proceedings as to bring the whole case before the Court, making all persons at interest parties. If there was, in fact, during the lifetime of Green, a division or distribution of this land, recognized or agreed to by Green, or if it was divided under the law, on notice to him, we incline to the opinion that, it being waste laud, it passed to him without more. But if he died before the share of Mrs. Green was ascertained, it survived to him.

Judgment reversed.