Grote v. Pace
| Decision Date | 09 February 1884 |
| Citation | 71 Ga. 231 |
| Parties | GROTE et al., guardians, v. PACE, administrator, et al. |
| Court | Georgia Supreme Court |
September Term, 1883.
1. A testator died in 1848, leaving a widow and four minor children. By the third item of his will, he directed such of his estate as was not required to pay debts and specific legacies to be kept together for the support and maintenance of his wife and children, and for the education of the children. In case his wife should marry again, he directed that she should have from his estate one equal share regarding her and each of the children in life at her second marriage as shareholders. By the fourth item, he appointed an executor and a successor after the death of the first executor, and invested his acting executor with full power to sell any portion of the estate, and to buy any property with assets belonging thereto, and " in any and every manner to change, either by purchase or sale, the nature of the estate, whenever it would, in his judgment, promote the interest of the same."
Held, that it was the intention of the testator that his wife and children should have equal shares of his property, excluding the wife's right to dower and the allowance of a year's support for the family, postponing a distribution until the happening of the contingencies named therein, and in the meantime charging it with the maintenance and support of the wife and children. The legacies vested immediately upon the death of the testator; the widow took a full share in the estate with her children, and at her death intestate, the property passed to her heirs at law under the statute of distributions.
2. Where a marriage took place prior to the passage of the act providing that the wife's property should remain her separate estate, the husband had the right to reduce the wife's property to possession as his own; and he could still do so after the passage of that act; but it was optional with him to do so or not, and if he failed or refused to subject it to his control, he could not be compelled to do so by creditors or others, to the exclusion of the wife's rights or interest therein.
( a. ) A husband having never asserted his marital rights, the property remained the separate estate of the wife, and, together with that inherited after the passage of the act of 1866, was subject to distribution, according to the laws of the state where she had her domicile at the time of her death.
3. Where a woman entitled to an estate married prior to 1866 lived in Georgia until after that time, and then removed to Alabama, her husband having never asserted or exercised his marital rights as to the property, and it not being carried into Alabama, such property was not statutory trust estate under the law of Alabama. But upon her death intestate, it passed under the general law of descents and distributions of that state.
( a ) Two things were necessary to bring the property within the operation of the statutory system of Alabama securing to married women a separate ownership of their property; first, that the matrimonial domicile should be in that state, and second, that during that time the property sought to be affected by that law should be brought into the state.
( b. ) Had the property (railroad stock) gone into Alabama in the form in which it now exists, it would not have been changed from the absolute, unincumbered, separate estate that it is under the laws of Georgia into the trust estate created by the peculiar legislation of Alabama.
( c ) The right and disposition of personalty is to be governed by the law of the domicile of the owner, and not the law of the location of the property.
( d. ) It has been held by the Supreme Court of Alabama that the laws of the estate in which a marriage is celebrated govern the rights of each party to the property of the other, and their subsequent removal to another state only affects property afterwards acquired.
Wills. Legacies. Estates. Comity of States. Laws. Husband and Wife. Trusts. Inheritance. Before Judge STEWART. Newton Superior Court. March Term, 1883.
Reported in the decision.
CAPERS DICKSON, for plaintiffs in error.
L. L MIDDLEBROOKS; J. M. PACE; A. M. SPEER, for defendants.
Charles Lane, of Newton county, Georgia, died testate in 1848, leaving his widow and four minor children. By the third item of his will he directed such of his estate as was not required to pay debts and specific legacies, to be kept together for the support and maintenance of his wife and children, and for the education of the children; in case his wife should marry again, then he directed that she should have from his estate one equal share, regarding her and each of the children in life at her second marriage as shareholders. By the fourth item he appointed Lucius Whittich his executor, and also appointed a successor after this executor's death, and thereby invested his acting executor with full power to sell any portion of the estate, and to buy any property with assets belonging thereto, and " in any and every manner to change, either by purchase or sale, the nature of the estate, whenever it would, in his judgment, promote the interest of the same." The widow did not marry again, and died intestate in the year 1876; two of the children, George and Lucius, died in minority during the life-time of the mother, never having been married, and leaving no descendants; Charles, attaining his majority, received his share of the estate, and had no further claim upon the balance that was kept together for the benefit of the widow and her daughter, Caroline B. Caroline B. was married to Rev. Luther M. Smith on the 16th day of May, 1865, and thereafter they resided in Georgia until September, 1875, when they removed to the state of Alabama, where they continued to reside until their respective deaths. Mrs. Smith died in July, 1877, leaving her husband surviving and four minor children; the husband died in 1879; LaPrade is guardian for one of these minor children, and Grote for the other three. So much of Charles Lane's estate as had not been assigned to his son Charles remained undivided in the hands of his representative until the death of Mrs. Smith and the appointment of an administrator on her estate in Georgia, when it was turned over to him. Although Mrs. Smith, during the life of her mother and thereafter until her own death, drew a support from the income of her father's estate, her husband never attempted to reduce to possession either her share of the corpus of this estate or the income thereof, but carefully abstained from any assertion of his marital rights in this property. The property in question was never out of the state of Georgia. The same person who administered on the wife's estate, also administered upon the husband's. He brings this bill to get the direction and decree of the court as to the distribution of the fund in his hands.
The questions made at the trial were, whether the husband was entitled to the whole of this property or only to a part, or whether he was entitled to any of it; in short, whether it was his or the children's, whether he took jointly with them-he being entitled to one moiety, and they to the other-whether he took to their exclusion, or they to his.
The judge in the court below distributed this estate under what he conceived to be the statute of Alabama, the domicile of both the husband and wife at their respective deaths, giving by the decree one-half thereof to the minor children, and the other half to the surviving husband; and to this decision exception was taken by the children, and the exceptions thus taken make the questions for our determination.
1. The construction we place upon the will of Charles Lane, from whose estate the fund in controversy comes, is that it was manifestly his intention that the wife and children should have equal shares of his property, excluding the wife's right to dower and the allowance of a year's support for the family, postponing the distribution until the happening of the contingencies named therein, and in the meantime charging the...
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