Barclay v. Waring

• Decision Date: 31 January 1877
• Citation: 58 Ga. 86
• Parties: A. Adelbert E. W. Barclay, plaintiff in err0r. v. James J. Waring, guardian, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 86

A. Adelbert E. W. Barclay, plaintiff in err0r. v. James J. Waring, guardian, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

[This case was argued at the last term, and the decision reserved.]

Title. Divorce. Trusts. Marriage Contracts. Witness. Husband and Wife. Before Judge Tompkins. Chatham Superior Court. February Term, 1876.

Reported in the opinion. W. U. Garrard, for plaintiff in error.

Jackson, Lawton & Bassinger, for defendant.

*Jackson, Judge.

This case involves very interesting questions. It came before the court below upon a bill filed by Waring as the guardian of Miss Barclay, against Barclay, the defendant, her father. The bill alleged that the mother of Miss Barclay was possessed, in her own right, of certain real estate in Savannah, the gift of Mrs. Marshal, who had adopted her mother, and being about to marry Barclay, her mother executed an ante-nuptial deed, or marriage settlement, whereby the property was conveyed to Gordon and Habersham as trustees, for the sole use of the mother during life, with power to appoint, by deed or will, beneficiaries to take after her death, and if she died without making any appointment, then the property to go to her husband and children at her death. She was to have the sole use, free from the control of the intended husband, or any future husband. It alleged that after the marriage, Barclay mutilated the deed by tearing off Gordon's name and his own name, and then made a deed by which he gave himself a life estate, if he survived his wife, with power to appoint beneficiaries after his death, Gordon being made trustee of this last deed too. Afterwards, the bill was amended by alleging that Mrs. Barclay obtained a divorce a vinculo matrimonii from Barclay, for adultery and bad treatment, to which libel for divorce the schedule of property filed embraced this property of Howard, in trust for the uses aforesaid; and it charged that, inasmuch as the jury gave, by their divorce verdict, none of the property to husband or wife, it all vested in Miss Barclay, the only child, by the silence of the jury in respect to it. The bill prayed that the deed made by Barclay, after marriage, under his pretended marital rights, be canceled, and that the marriage settlement be set up, and that the entire property be decreed to belong to the complainant by virtue of that settlement and the divorce, or at least a moiety thereof, if the divorce did not divestthe title of Barclay, and if he could still take as the sur-viving husband of Mrs. *Barclay, under the settlement, after he ceased to be her husband by the divorce a vinculo matrimonii.

The answer denied the destruction of the marriage settlement after marriage, but alleged that it was done before marriage, by Gordon's assent as trustee, and Mrs. Barclay's consent, and Mrs. Marshal's consent—Mrs. Marshal being the original donor of the property to her adopted daughter; that the names were torn off by Gordon in the presence, and by the approval, of all parties. It took issue, also, on the effect of the divorce, and set up the limitation act of 1869 in bar of the amended bill.

Discovery was waived, so that the answer was not evidence as an answer; but it was agreed that the facts set up therein should be considered as the answers of defendant to interrogatories, subject to objections for irrelevancy, or any illegality.

The execution of the marriage settlement was proven by a surviving witness, and the delivery of the paper to Gordon— Habersham, the other trustee, not present and signing. This witness had been the nurse, or confidential servant, of Mrs. Barclay, and was, when sworn, married. She knew nothing of its mutilation. The deed of gift of Mrs. Marshal to her adopted daughter, was made November 14th, 1855; the deed of settlement, November 16th, 1855; the marriage was solemnized November 21st. 1855, and the deed, or settlement, Barclay made after marriage, was dated December 22d, 1855. Both deeds of settlement were in the handwriting of Lloyd, a well-known attorney, at Savannah. Several witnesses were examined, but Barclay alone witnessed the destruction, or canceling, of the ante-nuptial deed, and proved the assent of all parties thereto. Mrs. Barclay died in 1866. The divorce was made final by last verdict, in 1862, having been pending for some terms of the court.

The case was submitted to the chancellor, by consent, without the intervention of a jury, who found and decreed that the ante-nuptial deed should be set up, and that the *divorce operated to divest all the interest of Barclay, and that the property should be decreed to be the sole property of complainant, and that Barclay should account for rents, issues and profits, while he had enjoyed the life estate. Barclay excepted, and the case is before us.

The first question which we propose to consider, is as to the effect of the divorce upon the title to this property in Howard, the trustee, for the uses therein named.

The schedule filed with the libel named this property, and named Gordon as trustee, but it was not sworn to. There can be no doubt that at the time of the granting of this divorce, the law allowed the jury to dispose of the property of the coverture, to either husband or wife, or divide it, and if they did not do so, it would go to the children of the marriage. But we think that this was confined to property in which the legal title was in one of the parties to the suit. It would certainly be rather loose to hold that the title of a trustee could be divested in a suit to which he was no party. If a bill had been filed ancillary to the libel for divorce, such a decree might have been framed as to have divested his title; but he ought to have been heard in some way, in defense of his title, or he ought to have had the opportunity. Nothing of the sort appears. We rather think, too, that some action should have been taken by the court upon the verdict of the jury before the title would vest in the child. Grant that the silence of the verdict was equivalent to finding the property to go to the child, still, we think that there should have been some judgment or decree of the court, predicated upon the verdict, and directing and vesting the title in...