Nixon v. Nixon , 196 Ga. 148 ( 1943 )

It is declared in the Code, § 3-704, that "All suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law, shall be brought within 20 years after the right of action shall have accrued." Is an application of a widow for a year's support subject to the limitation stated in this section? This question has been answered by the majority in the affirmative. I think it should be answered in the negative, for several reasons. The section by its terms applies only to rights "accruing to individuals," and accordingly it has been construed as applying only to "cases where the liability thus created is in favor of an individual, or a class to which he belongs, as distinguished from one arising under the general law in favor of the public at large." Bigby v. Douglas, 123 Ga. 635 (3) (51 S.E. 606). It seems that the right of a widow to a year's support from the estate of her deceased husband would not be a right accruing to her as an individual, or to a member of a class of individuals, within the meaning of this law, since there is no common right or source upon which different families may assert such claim, but they must proceed against different estates; and in every instance, the amount is "to be estimated according to the circumstances and standing of the family previous to the death of the testator or intestate, and keeping in view also the solvency of the estate." Code, § 113-1002.

In Harris v. Smith, 68 Ga. 461, Harris brought a rule against Smith as sheriff, for a sum of money remaining in the hands of the latter from a sale under an execution and claimed by him. The sheriff pleaded the four-year statute of limitations. The plaintiff relied upon the twenty-year limitation as now expressed in the Code, § 3-704. This court said: "We cannot concur with the learned counsel who argued this case, that the words relied upon were ever intended to apply to such a liability as that which is made by this record. But, it is asked, if they do not refer to such a case, then to what class of cases were they intended to apply? In looking at the act itself, we find that the legislature was dealing with rights accruing to individuals under statutes, and acts of incorporation, the latter of which, especially about the date of the passage of the act, had given rise to great litigation in the State. In some of the cases growing out of both statutory and charter liabilities of parties, it was held that obligations arose which were ``quasiexcontractu, and imposed by operation of mere law.' Banks v.Darden, 18 Ga. 341. Looking at the act and the judicial decisions of the times, it would seem that these words were intended to apply to such rights as arise in connection with, though not strictly under, the very words of the statutes or acts of incorporation. But that it does not apply to the cases before us we think very clear; if, indeed, it were made so to apply, we are at a loss to see where it would stop; for every right to recover arises in some way by operation of law, and if we stick to the letter of this act there would be but few cases barred by the statute of four years."

In Bigby v. Douglas, supra, the court, after quoting from the decision in the Harris case, said: "In other words, the General Assembly had in contemplation rights conferred by law upon particular individuals, and not upon the general public, because they sustained a peculiar relation to the incorporators of certain chartered institutions or were by special enactment given privileges in return for services to be performed by them for the benefit of the public, or were for some other reason entitled to enforce rights which they did not share in common with their fellow-citizens. The rights referred to were such as could be asserted by certain persons, not in their capacity as members of the public who came within the protection of a general law, but as particular ``individuals' who were by special enactment expressly designated by name, or who belonged to a designated class to the members of which, but to none others, such rights accrue ``under statutes, acts of incorporation, or by operation of law.' With these strictly personal rights the public at large has no concern. To rights which are conferred by law upon members of the public at large, section 3766 [Code of 1910, § 4360, Code of 1933, § 3-704] has no application. That this is true was recognized in the case of Savannah Canal Co. v.Shuman, 98 Ga. 171."

In an opinion delivered by Judge Sibley in Anderson v. Anderson, 23 F.2d 331, affirmed as Anderson v. Pennington, 28 F.2d 1007, it was said of this section: "That applies to cases in which there is a special liability created by a special charter or statute, as instanced in numerous cases in the early Georgia reports. The distinction to be observed is pointed out inSavannah Canal Co. v. Shuman, 98 Ga. 171, 25 S.E. 415, andBigby v. Douglas, 123 Ga. 635, 51 S.E. 606. Where all persons injured by a breach of duty are given a right of action, and not particular individuals, the fact that a right of action is founded upon a statute does not introduce the twenty-year limitation. Thus, although there is a Georgia statute declaring that a railroad company shall be liable to all persons who are injured by the running or operation of their trains, unless the company shall make it appear that they and their agents exercised all reasonable and ordinary care and diligence, this statutory liability so declared has never been supposed to be under the twenty-year limitation. So, a statute of Georgia gives a right of recovery to various classes of persons injured by the homicide of another, but no one has ever contended that this liability came under the twenty-year limitation. In these and numerous other cases the uniform construction of the law has been that the ordinary statutes of limitations apply. Section 93 of title 12 of the United States Code permits recovery to every person damaged, according to the damage he has suffered, and, although several classes are named, the provision is so broad as manifestly not to create a statutory liability in favor of individuals such as is contemplated by Georgia Code, § 4360 [§ 3-704]." In Williams v. Clemons, 178 Ga. 619 (173 S.E. 718), it was said that the foregoing opinion by Judge Sibley "states the correct principle." See also Hendryx v. Atkins, 79 F.2d 508 (6). For instances in which the principle has been applied under corporate charters and banking laws see Lane v.Morris, 8 Ga. 468 (8); Hargroves v. Chambers, 30 Ga. 580 (5); Wheatley v. Glover, 125 Ga. 710 (19) (54 S.E. 626); Butler v. Mobley, 170 Ga. 265 (9) (152 S.E. 229).

It has frequently been stated that the law relating to a year's support is a part of the statute of distributions.Farris v. Battle, 80 Ga. 187 (7 S.E. 262); Swain v.Stewart, 98 Ga. 366 (25 S.E. 831); Edwards v. Addison,187 Ga. 756, 761 (2 S.E.2d 77). But even so, the statute itself is not the foundation of the action; and this in my judgment is the test of whether the right is one accruing under the statute or by operation of law. Compare Webb v. Till,134 Ga. 388 (67 S.E. 1034); Rogers v. Eason, 183 Ga. 431 (2) (188 S.E. 693). What was the foundation of the action in this case? It was the applicant's relationship as widow, plus the other facts and circumstances of the particular case, in virtue of which the statute providing for a year's support merely becomes operative or applicable. The statute was not within itself the foundation of her claim.

In Peavy v. Turner, 107 Ga. 401 (33 S.E. 409), this court, in rejecting the contention that a proceeding to foreclose the statutory lien of an attorney at law was a suit to enforce a statutory liability, and thus would fall under the Code, § 3-704, said: "This provision of law is where the statute creates a liability that is directly the ground of the action, and does not apply to a case where the liability is created by contract between the parties." The court also quoted the following from Pare v. Mahone,32 Ga. 253, involving attachment: "A statutory liability is one that depends for its existence and creation upon the special enactment of a statute, and not upon the contract of the parties." While of course the right to a year's support is not created by contract, it does arise from a relationship and other facts; and so, upon application of these decisions, and paraphrasing the language used, it may be said that the statute applies to a liability that is directly the ground of the action, and does not apply to a case where the liability arises from the relationship of widow and the existence of an estate left by her husband. It seems that in the Pare case, the court was of the opinion that the liability must be created by a "special enactment" in order for such limitation to apply.

Although the right to a year's support is the highest claim against the estate of a decedent, and the "ordinary law of distributions" does not become applicable until after such year's support and other obligations of the estate are satisfied (Edwards v. Addison, 187 Ga. 756, supra), yet since the right is a branch of the statute of distributions, it would seem that it could no more be termed a right accruing to an individual under statute than could the right of the heirs at law of any intestate, and in the view of the writer such right of inheritance could not properly be so denominated. The statute of distributions is a general statute providing for succession of title by inheritance, and those occupying the relation of heirs could not, as seems to me, be considered as "individuals" or a class of individuals within the meaning of the Code, § 3-704. Generally speaking, every person is the heir of some one, and thus is a mere member of the general public as related to this section. While widows and minor children do not constitute so large a percentage of the general public, they are not yet sufficiently limited and identified as to be considered a particular class within purview of this section. If the twenty-year limitation is to be applied to a first application for a year's support, how could it be applied to a second or later application, as allowed under the Code, § 113-1004? The very fact that under certain circumstances the right may be asserted for each year that the estate is kept together would strongly indicate that no period of limitation was intended to apply to such right, whether asserted by a first or a later application. The words "accruing . . under statutes, acts of incorporation, or by operation of law" should be considered together as embracing the single policy or intention as to the kind of law under which the right may accrue, in order to become barred under the twenty-year limitation. The maxim noscitur asociis is applicable. Words, like people, are known by the company they keep; and when the meaning of a word is doubtful, we may look to its associates to determine its meaning. Under this maxim, where general and specific words are used in the same connection, they take color from each other, and unless a contrary intention appears, the general words will be construed in harmony with the specific, as referring to things of like kind. Davis v. Dougherty County, 116 Ga. 491, 492-3 (42 S.E. 764); 21 Words Phrases, 766-9. This leads to the conclusion that the words "acts of incorporation" should lend color to the other words of this statute, and that a general statute such as that providing for a year's support is not within the intent of section 3-704, supra.

In the opinion in the instant case, however, the court, in discussing Bigby v. Douglas, supra, has said: "Conceding that the right of the surety to obtain contribution from his cosureties as prescribed by the Code is of common-law origin, this fact would not be sufficient to prevent it from being a right accruing to a class of individuals by operation of law." I do not think the words "by operation of law" can be given any such meaning. If the court is correct in this statement, then it would seem there is no right that would not fall within the Code, § 3-704; for every right accrues in some way under statute or common law.

Referring specifically to a claim for a year's support, the following rulings were made in Federal Land Bank of Columbia v.Henson, 166 Ga. 857 (144 S.E. 728): "4. Section [113-1002] and the cognate sections do not provide a limit of time after the death of the husband within which an application for year's support shall be made. Consequently, mere lapse of time will not, as matter of law, bar the right to apply for the statutory year's support. 5. Long lapse of time between the death of the husband and the widow's application for year's support may be considered by the ordinary in connection with other facts tending to show that the widow had received a support from the estate or had waived it expressly or impliedly. And in passing upon the application the ordinary should give weight to evidence as to such facts in determining the amount to be granted, or whether the application should be wholly refused." While it is true, that in the Henson case, the court did not have for consideration the twenty-year statute of limitation, yet the case was actually decided upon the theory that mere lapse of time would not as a matter of law bar the right; and the ruling is not irrelevant to the question here presented. Considering the nature of the ruling made, if the court had thought that there was any statute of limitations applicable to such right, seemingly, at least, a passing reference would have been made to it.

In other jurisdictions, it seems to be the view that unless the law fixes some time limit within which such an application must be made, it is not barred by mere lapse of time, and that general statutes of limitations are not applicable. 34 C. J. S. 54, 66, §§ 347, 354.

The provisions of section 3-704 were enacted in 1836, as part of a general statute of limitations covering numerous actions. Ga. Laws 1855-6, p. 233. The provisions were contained in section 12 of that act, and were followed immediately by a section relating to dower. In other words, the exact setting was as follows: "Sec. XII. All suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law, shall be brought within twenty years after the right of action accrues, and not after. Sec. XIII. That when any widow shall be entitled to dower, application for the assignment of such dower shall be made by said widow within seven years from the time such right to dower accrued, and not after." Somewhere in the same connection would have been a very suitable place to mention year's support, if the legislature had intended to bring it within section 12 of this act; and why specifically mention dower, and not year's support? Did not mention of the one impliedly exclude the other?

Some of the decisions referred to above were rendered when the court was very much closer to the time and circumstances of this enactment than we are to-day. This is especially true of Pare v. Mahone (1861), and Harris v. Smith (1881), from which I have quoted. Seemingly, therefore, the court was in better position to apply the rule, that, "In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy." Code, § 102-102 (9). And it is worthy of note that inHarris v. Smith, supra, the court did apply this rule, although it was not specifically mentioned. In the circumstances, it seems to the writer that a mere intimation in the older decisions should be given considerable weight, as to the meaning of this statute.

It might be asked what if any right the widow would have to a year's support if this particular statute (Code, § 113-1002 and cognate statutes) had never been enacted, or should be repealed. Candidly, it must be said that she would not have any right to a year's support; but it does not follow that the claim for year's support is one accruing under statute or by operation of law under the Code, § 3-704. It would simply mean that there would be no statute under which it could be asserted that the relationship and the other pertinent facts gave the right to a year's support, and would not mean that the statute itself must be considered as the foundation of the action.

The first question propounded by the Court of Appeals merely asks whether the twenty-year statute of limitations as provided in the Code, § 3-704, is applicable, and does not inquire whether any other statute would be applicable, and therefore the discussion might properly end at this point; but it may not be amiss to observe that it would not be an anomaly if no statute of limitations whatever should be applicable to a claim for a year's support. There are still other rights which have not as yet been covered by any such statute. Compare Kirkpatrick v. Faw,182 Ga. 25, 29 (184 S.E. 855).

In view of what has been said, I respectfully dissent from the answer to the first question; and in this view I must dissent also from what is stated in the answer to the second question. Justice Grice directs me to say that he concurs in this dissent.