72 Ga. 51 | Ga. | 1883
This case was submitted to the court below, his Honor, S. W. Harris, judge presiding, on an agreed statement of facts, without the intervention of a jury.
The facts agreed on are as follows:' In 1851, in Troup •county, Wiley J. Sterling died intestate, leaving a widow, Bethena Sterling, and eight children, one of whom was Virginia J. Sims, then a married woman, wife of W. H. :Sims, of said county.
W. L. Sterling was appointed administrator, and fully -distributed the estate, and turned over to the widow, who •.’took dower, 670 acres of land. This was all done before 1866.
In 1881 the dower tenant died, and W. L. Sterling having been removed, John R. Sterling was appointed administrator de bonis non. In 1882 the administrator de bonis ■non sold said land at administrator’s sale.
■ The defendant in error sued for a child’s part of the proceeds.
The administrator had and owned a fi. fa. against W. H. Sims and others, obtained 25th May, 1860, and kept alive •by proper entries, which he bought before he became administrator, believing, when he bought it, that the share of Virginia J. Sims in said land had vested in her husband, W. H. Sims, and was subject to said fi. fia. There were also in the hands of others, other fi. fas. against said Sims, who died in 1871 insolvent. The fi.fa. owned by said administrator was for a much larger sum than the share, the .amount- of the share being agreed on at the sum for which the judgment was rendered. W. H. Sims and Virginia J. .Sims had children.
The court held that the administrator was liable to Virginia J. Sims for the said share; that under the facts the marital lights of W. H. Sims had never attached to her interest in the dower lands, so as to defeat her survivor-ship, and rendered judgment against the administrator de
An answer to this question will somewhat depend upon what her interest was in her father’s estate;—was.it a chose in possession or a chose in action ?
A chose in possession is where a person has not only the right to enjoy but also the actual enjoyment of the thing. 1 Abbot’s Law Dictionary, 220.
A chose in action includes all rights to personal property not in possession, which may be enforced by action; demands arising out of torts as well as contracts; it is sometimes used as the right of bringing an action. 57 Barbour, 408; 9 Ib., 299 ; 19 Wend., 75 : 43 Wis., 32; 14 S. C., 538; 4 Denio, 82.
The right to have the interest of an heir in an estate of a deceased ancestor, in the hands of his administrator, is a chose in action, and not a chose in possession; and where the same is in the wife, it will survive to her, upon the death of her husband before he reduces the same into possession.
The reversion of the lands which were assigned to the mother of Mrs. Sims as dower, as the widow of Mrs. Sims’s father, was in the estate of the father, and when the same were sold and converted into money after the .death of the tenant in dower, the right to have this money was and is a chose in action, and survives to Mrs. Sims, her husband being dead, and will defeat his creditor or heirs-at-law, he having failed to reduce the same into possession during his life. In Sayre vs. Flournoy, 3 Ga., 541, it was held that the husband had no vested interest in his wife’s choses in action until he reduced them into .possession. The right of the husband to the distributive share of his wife in her deceased father’s estate, is a mere naked right to sue for and reduce'
It is insisted that the case of Prescott & Pace vs. Jones & Peavy, 29. Ga., 58, conflicts with the case, of Sayre vs. Flournoy, 3 Kelly, above referred to. It will be seen that the case in 29 Ga. was an action of ejectment brought by the surviving husband to recover a wild lot of land to which the wife had full title during her life. The court, in this case, held that the title to this land passed to the husband, under the act of 1789, and he was entitled to the same. Tho wife acquired title as heir-at-law of a former husband, deceased, who had died, leaving her alone as his heir-at-law; it was, in law, in her possession, and consequently passed to the second husband, upon his marriage, as fully as it was in the wife before marriage; it did not consist of an undistributed estate, as in the case at bar. So this case is not in conflict with the case in 3 Kelly. And in the case of Hooper vs. Howell, 52 Ga., 321, the wife claimed certain lands as having survived to her upon the death of her husband, and it appeared that tho lands of the claimant’s father had been divided, under his will, between his children, claimant being one before her marriage.' ■ It was held by the court that, as the land was wild
We are quite clear that the marital rights of Sims, the husband, never attached to the property sued for in this case, so as to prevent the same from passing to Mrs. Sims, the widow, by survivorship; and no judgment obtained against Sims in his lifetime has a lien upon this property in the hands of the administrator of Mrs. Sims’s father for distribution among'his heirs; that she will take her one-eighth interest, free from any debts or liens against her deceased husband; that this is her property, and does not go to the representative of her deceased husband; and that this is so because, it being a chose.in action and not a chose in possession, and never having been reduced into possession by the husband, while in life, it passes to, and becomes the property of, the wife by survivorship.
Judgment affirmed.
