Ralston v. Thornton , 36 Ga. 546 ( 1867 )

Warner, C. J.

This was a bill filed in the Court below by Thornton, the administrator of James Ealston, for direction, upon the following statement of facts. In December, 1864, James Ealton died intestate, leaving a widow and three minor children as his heirs-at-law. In March, 1865, one of the children died, and in April, 1866, another of the children died, leaving the widow and the other surviving child as their heirs-at-law. The property of James Ealston the first decedent remained in the hands of Thornton, his administrator. In Eebruary, 1867, the widow intermarried with Dr. Bozeman, before there had been any distribution of James Ealston’s estate by the administrator thereof. The question made in the Court below upon the foregoing statement of facts, was as to what part or portion of the estate of James Ealston his Widow was entitled to under the laws of this State, (she having intermarried with Bozeman before distribution thereof,) either as his heir-at-law or as the heir-at-law of her two deceased children. The Court below held and decided that the property of James Ealston, in the hands of his administrator, should be equally divided between Mrs. Bozeman and the surviving minor child — that each take one-half of the entire estate. This decision of the Court was excepted to, and is now assigned for error here.

The plaintiff in error mainly relies upon the provisions of the Act of 1845, which is substantially incorporated in the first Code, but omitted in the Eevised Code. The 2453d section of the first Code declares, “ Whenever any feme covert, having a child or children by a former marriage, is or becomes entitled to property by inheritance at any time, or devise, antecedent in date to her last marriage, and not in trust, the possession of which is not obtained prior to such marriage, such property shall not belong to the husband of such feme covert, but shall be equally divided between all the children of such feme covert living at the time when possession is obtained, and such feme covert The portions of such feme covert and her children by her last husband, shall alone be subject to be reduced to possession by, and the title vest in, such husband.” In Mathews vs. Bridges, 13th Ga. Rep., 325, this Court held that when a widow was entitled to a distributive share of an estate as a feme sole, but married before reducing the property to possession, her child by a former husband was entitled to a distributive share thereof, under the Act of 1845. Roby vs. Boswell, 23d Ga. Rep., 51. Had there been no change of the law of this State upon this subject prior to the marriage of the widow Avith Bozeman, the Act of 1845, and the construction of it by this Court, would have controlled the question in favor of the plaintiff in error. The Act of 1845 Avas directed against the marital rights of the husbrnd of the second marriage. If the property had been reduced to possession, to Avhieh the widoAV Avas entitled, at the time of her marriage, then, as the law stood, it would have become the property of the husband. The object of that Act was to out off the marital rights of the husband to the property of his wife, which had not been reduced to possession, to the prejudice of the Avife’s children by a former marriage, and such was the interpretation given to it by -this Court.

But how stood the laAV in relation to the marital rights of the husband, at the time of the marriage of the widoAV with Bozeman in this case? By the Act of 13th December, 1866, his marital rights to the property of his wife, whether reduced to possession or not, Avere entirely taken away; he could not assert his marital rights over her property to the prejudice of her children by a former marriage. The Act of 1866 declares, “That from and after the passage of this Act, all the property of the wife at the time of her marriage, whether real, personal, or choses in action, shall be and remain the separate property of the wife, and that all property given to, inherited or acquired by the Avife during coverture, shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default or contract of the husband.” The second section of the Act repeals conflicting laws. The manifest object and intent of this latter Act was to defeat and cut off the marital rights of the husband to his wife’s property, Avhether real, personal or choses in action, not only such as she had in possession, but such as she had the right to reduce to possession. The Act expressly declares that all the property of the wife shall be and remain her separatet property. Now it is conceded that if the widow in this - case had remained a feme sole, she would be entitled to inherit one-half of the estate, as the heir-at-law of her deceased husband and children. At the time of the passage of the Act of 1866, her right to this property was fixed and vested by operation of law j if she did not have the actual possession of it, her legal right to reduce it to possession was indisputable — -her right to inherit this property as the heir-at-law of the deceased parties, did not depend upon the contingency of reducing it to possession, nor does the Act of 1866 restrict her right as to its enjoyment, upon that contingency — and this being so, her intermarriage with Bozeman in February, 1867, did not defeat any of her previously acquired rights thereto under the public law of the State.

The Act of 1866, in our judgment, repeals all prior laws which conflict with the declared object and intention of that Act in regard to the property of married women, as well that to which they were entitled at the time of the marriage, as that acquired by them afterwards during coverture, and to hold in this case that the right of the widow to this property as the heir-at-law of her deceased husband and children, depends upon its reduction to possession by her before or after marriage, would be in conflict with that Act.

Our conclusion and judgment, therefore, is, upon the facts of this case and the existing law applicable thereto at the time of the marriage, that, inasmuch as the widow was a feme sole at the time she inherited this property, her right and title to the inheritance thereof vested in her by operation of law; as such feme sole, she inherited the property of the deceased parties in her oion right, and this being so, the Act of 13th December, 1866, secured to her all the property she had inherited from her deceased husband and children, as her separate property at the time of her intermarriage with Bozeman in 1867, whether she had reduced the same to possession or not; that the fact of her becoming a feme covert in 1867, did not defeat any of her rights to the property acquired by operation of law before she became a, feme covert, and which Was secured to her by the Act of 1866; that Act not requiring that, the property should be reduced to possession, but expressly repeals all laws- in conflict with it; that the Act of 1866 is in conflict with the 2453d section of the old Code, so far as the reduction of the property to possession is necessary to perfect her title thereto, or to affect in any way the marital rights of her husband, and providing for the children of a former marriage against those marital rights ; that she is entitled to inherit one-half of the estate in as full and ample manner as if she had remained a feme sole, notwithstanding her marriage in 1867. It was her separate property before and at the time of her marriage, and is her separate property now, under the provisions of the Act of 1866.

Let the judgment of the Court below be affirmed.