Hooper v. Howell
52 Ga. 315
Ga.
1874
Check Treatment
Warner, Chief Justice.

It appears from the record in this case that Howell, as guardian of the four minor children of W. A. Green, deceased, was proceeding to sell certain described lands, under au order of the ordinary for that purpose, as the property of said minor children, which said lands were claimed by LouisaS. Hooper, formerly Louisa S. Green, and .widow of W.'A. Green, deceased. On the trial of the claim case, tire jury, under the charge of the court, found a verdict against the claimant. A *321motion was made for a new trial on the several grounds set forth in the record, which was overruled by the court, and the claimant excepted. There are but two questions made by the record which it is necessary for us to consider: First, as to the competency of John M. Pittman to testify in the case, and second, whether the title to the land in controversy was the property of W. A. Green 'at the time of his death, by virtue of his marital rights, or whether the claimant, as his widow, was eutitled to the land as the survivor of her deceased husband.

' 1. Was Pittman a competent witness ? Our evidence act declares where one of the original parties to the contract or cause of action in issue-or on trial is dead, the other party shall not be admitted to testify in his own favor. The parties to the issue on trial in this case were the heirs-at-law of Green, his minor children, represented by their guardian, on the one side, and Mrs. Hooper, the claimant, on the other— all the parties being in life. It is true the minor children claim title to the land as the heirs-at-law of' Green, their father, who is dead. Pittman was offered as a witness in support of the title of the heirs to their land, as well as in support of the title to his own land, which was not in controversy in the issue on trial. The witness was offered to prove a division of the estate of Hiram Pittman during the lifetime of Green; the witness and Green, the father of the minor children, having derived their title to the respective shares of land claimed by them under the last will and testament of Hiram Pittman, deceased. In our judgment, the witness was competent to testify in favor of the minor children in the issue then on trial before the court.

2. When this case was before this court on a former occasion, the facts were so imperfectly stated in the record then before us, that it was impossible to ascertain what were the legal rights of the parties. We therefore ordered a new trial, so that the facts could be ascertained as clearly as possible in view of the fact that the court-house in the county in which the land was situate, containing all the records and proceed*322iugs appertaining thereto, had been destroyed by fire. New parties have been made, and upon the last trial additional facts were disclosed which enables us to understand what are the legal rights of the parties to the land in dispute. It now appears from the evidence in the record that Hiram Pittman died in 1837 or 1838, leaving four children, one of whom is now Mrs. Hooper, the. claimant; that Hiram Pittman left a will, by which he devised his lands to his four children, including the land in dispute; that after the death of her father, Louisa, the claimant, intermarried with Green, in 1851, who died in 1859, leaving the minor children now claiming the land in dispute, as his heirs-at-law. Subsequent to the death of Green, Louisa intermarried with Hooper, and now claims her share of the land devised by her father’s will to her and her brothers and sisters, on the ground that Green, her first husband, never reduced her share of his land to possession during his life-time, and that it survived to her, and did not pass under the law to his children by her, who were his legal representatives. After the death of her father, Hiram Pittman, she, with the other devisees under his will, held the land as joint tenants, or as our law now stands, as tenants in common, and the question is whether, under the law as it existed at the time of her intertoarriage with Green, he acquired a title to the land by virtue of his marital rights. The question is not whether she would be entitled to assert the wife’s equity in a court of equity as against her husband, or against her husband’s creditors, as was the case of Bell vs. Bell, 1 Kelly’s Reports, 637, and that class of cases; but did the title to her real estate, devised under her father’s will, become vested in and pass to her husband on her intermarriage with Green? The act.of 1789 declares that in cases of intermarriage since the 22d day of February, 1785, the real estate belonging to the wife shall become vested in and pass to the husband in the same manner as personal property doth, and in cases of the death of the husband thereafter, intestate and without will, the said estate shall descend and become subject to distribution in the same manner as personal prop*323erty: Cobb’s Digest, 305; Jones vs. Peavy, 29 Georgia Reports, 58; Shipp vs. Wingfield, 46 Georgia Reports, 593; Rogers, trustee, vs. Cunningham, 51 Georgia Reports, 40. That the real estate which was devised to her by her father’s will belonged to Louisa at the time of her intermarriage with Green, cannot be disputed, from the evidence now contained in the record, however doubtful it might been from the evidence before us on the former hearing of the case. The evidence is pretty clear that there was a division of the land between the devisees under the testator’s will, and that Louisa’s share was set apart to her, and being wild land, her husband reduced it to possession so far as the same was capable of being reduced to possession after his intermarriage with her.

3. It also appears from the evidence that shortly after the death of Hiram Pittman, the testator, in 1838, his executor divided the personal estate amongst the legatees thereof, and after such a lapse of time, the legal presumption is that the entire estate of the testator was distributed amongst his legatees and devisees, and that each one received his or her share thereof with the assent of the executor, the more especially as one of the devisees under the will has been in the possession of his distributive share of the land for twenty-three years. In view of the facts of this case, as now disclosed by the record before us, Louisa’s share of the land devised to her by her father’s will, (the same being wild lands) vested in Green, her first husband, on her intermarriage with him, and at his death, intestate, descended to and became subject to distribution amongst his héirs-at-law, and did not survive to her.

Let the judgment of the court below be affirmed.