90 Ga. 530 | Ga. | 1892
1. The attempt of Mrs. Harville to withdraw in vacation her appeal from the judgment of the court of ordinary establishing the will of Mrs. Smith, amounted to nothing, for the code (§3629) expressly forbids the withdrawal of an appeal except by consent of the adverse party. When, however, the superior court, in term time, passed an order referring to the attempted “withdrawal”' in vacation and adjudging that the appeal be now withdrawn and dismissed, it had the jurisdiction and authority to pass such order ; and nothing appearing to the contrary, it will be presumed that the necessary consent of the adverse party was obtained. If, in point of fact, this was not true, it would simply follow that the judgment of the superior court was erroneous for want of such consent, but not that the judgment itself was void. If proper steps had been taken within
It results, from what .has been said, that the will of Mrs. Smith was duly set up and established, and the rights of the parties to the present litigation must be determined accordingly.
2. In whom, then, under the provisions of this will, did the title to the land in controversy vest ? The will took effect from the time of the death of the testatrix (which occurred before the passage of what is commonly and familiarly known as the “ woman’s law”), although it was not admitted to probate until many years after-wards. Code, §2398. It must therefore be construed and interpreted with reference to the law as understood and enforced in 1863. It cannot be doubted that a married woman could then own and control a separate estate free from' the marital rights of her husband, without the intervention of a trustee; but in order to prevent the marital rights of the husband from attaching, it was necessary for the instrument conveying the property to contain words clearly showing it was intended the wife should have a separate estate to the exclusion of the husband. Neither the technical words “ sole and separate use,” nor any other formal words, were necessary to accomplish this purpose, provided the language used was adequate to manifest a decided and unequivocal purpose to create such a separate estate in the wife.
Of course, it can never be known with absolute certainty what passed in the mind of Mrs. Smith when she was making her will. It may be that her knowledge of and confidence in her brother caused her to consider it unnecessary to provide that' what she gave his wife should be free from his debts and contracts. Indeed, while she intended to convey this property absolutely to the wife, she may have designedly refrained from placing auy restriction upon the right of the wife to alienate the interest conveyed for any purpose she might choose, including that of aiding her husband by using her separate estate in paying his debts. On the other hand, as to the husbhnd of the niece, there may have been no such confidence on the part of the testatrix, or willingness that the estate conveyed should ever be applied in the way indicated. This, however, is mere conjecture, and we do not undertake to say with certainty why the language used in one case was a little more guarded than in the other. We are satisfied,
3. Had Mrs. Rasberry’s construction of the will been correct, her claim to an interest in the property in dispute would have been perfectly consistent both with the will itself and with the deed from her father, if reformed in accordance with her prayer. Her contention being that the will devised the property in dispute to her father, and not to his wife, she is, from her standpoint, really claiming under, and not against it, and therefore she would not be estopped by reason of the fact that she had caused the will to be probated and established in solemn form. The difficulty about her case is, that the will did not convey the property to her father, and consequently he could not, by deed, convey to her an interest in it unless he obtained title to it otherwise than through the will. This brings us to her next contention in the case, viz: that her father acquired title to the land by prescription, and that Mrs. Harville, by accepting a deed from him and asserting title under it, was estopped, both as to herself and as to her children named in and claiming under the deed, from denying the title of the grantor.
In reply to this contention it may be said, in the first place, that there is nothing in the idea that Mr. Harville ever acquired title by prescription. He did
Nor do we think that the contention that Mrs. Ilarville was estopped as above alleged, can be maintained under the facts of this ease. It is true she accepted a deed from her husband to these premises, and claimed title under it; but this was done when both he and she were in total ignorance, not only of the contents, but of the very existence of Mrs. Smith’s will. She and her husband both honestly believed that he owned the property as sole heir of his deceased sister, and Mr. Harville died without ever having been informed to the contrary. There is certainly no rule of law which will estop one from setting up a clear legal right with which he has but recently become acquainted, on the ground that he had previously, when in total ignorance of the existence of such right, asserted a claim inconsistent with and antagonistic -to that upon which he now relies. The soundness of this assertion is apparent without argument or illustration, for the statement of the proposition negatives in itself any idea of election.
Judgment affirmed.