Ellington v. Harris , 127 Ga. 85 ( 1906 )

Cobb, P. J.

(After stating the facts.) There was no evidence as to what was the law of South Carolina. The presumption is that the common law prevailed at the time of the marriage of the intestate. Mass. Life Asso. v. Robinson, 104 Ga. 276; Thomas v. Clarkson, 125 Ga. 78. The common law, as to the effect of marriage upon personal chattels of the wife, was thus stated by Judge Nisbet, in Bell v. Bell, 1 Ga. 640: tfAt common law, marriage amounts to an absolute gift to the husband of all the goods, personal chattels and personal estate, of which the wife is actually or beneficially possessed at that time in her own right. All these he acquires an absolute property in and dominion over, by the marital right.” The husband needed the interposition of no court to establish his claim to the property of the wife in possession. He took it free from any right of survivorship; he might dispose of it during life or bequeath it at his death; and if he died intestate, it went to his personal representatives. As to choses in action the rule was different. The husband did not acquire title to them unless they were reduced to possession during coverture. If, at the time of the marriage of Ellington, in South Carolina, his wife was in possession of the money and 'personal chattels referred to in his admissions, the absolute title to the property vested in him, and remained in him until divested in some method provided by law. He might make a gift of this property to his wife, but any one claiming under the wife, as donee from him, carried the burden of showing all the essentials of a gift. When he disposed of this property, and invested the proceeds in land, and took title 'in his own name, he was still exercising dominion over it as his own; and if no complete gift of the chattels was shown prior to the investment in the land, then he was the absolute' owner of the land, the purchase-money having been paid with his own property.

The judge instructed the jury, in effect, that it was immaterial what was the status of the property in South Carolina, provided they believed that the intestate had dealt with the property as the property of his wife after the same was brought into Georgia. The mere admission, by the intestate, that the land was purchased with property which he received from his wife, would not be sufficient to make out a case in favor of the claimant. The evidence would have to go further and show that the husband had either ’made a gift of the personal chattels to the wife before they were disposed of and the proceeds invested in the land, or had made a gift of the proceeds before that time. In that view of the ‘case what the status of the property was, at the time it was brought into Georgia from South Carolina, was material to the case, and the instruction of the judge was erroneous. If there had been no gift of the chattels, or proceeds arising from their sale, before such proceeds were invested in the land, then 'the land, at the time it was purchased and the title taken by the intestate, was the absolute property of the husband. If this is the truth of the case, then his title to the land can not be divested by mere admissions, made from time to time, in his lifetime, that it belonged to himself and his daughter, that he held half of it in trust for his daughter, and the like. Title to land must be evidenced by writing, and declarations of the character above indicated could' not create for the benefit of the daughter an express trust in the land; for such trusts must be created or declared in writing. Smith v. Williams, 89 Ga. 9(2). The admissions relied upon by the claimant, as above stated, were of two classes: first, simple admissions that the land had been bought with money belonging to the wife; and second, that the land had been bought with the proceeds of property acquired from the wife by virtue of his marital rights. On another trial the jury should be instructed that if they believe, from the evidence, that the land was really purchased with money or property which belonged to the wife at the time that the purchase was made, they would be authorized .to find in favor of the claimant; but, on the other hand, if they should believe that the land was purchased with money or chattels, title to which the intestate had obtained by virtue of his marital rights, under the law of South. Carolina, that they would not be authorized to find for the claimant,-unless they believe that the intestate, during the lifetime of his wife, had made a complete gift of the money and chattels, or the money and the proceeds of the sale of the chattels, prior to the time that the land was purchased and paid for with such proceeds. Judgment reversed.

All the Justices concur.