Smith v. Head

• Decision Date: 31 October 1885
• Citation: 75 Ga. 755
• Parties: Smith, administrator. vs. Head.
• Court: Georgia Supreme Court

75 Ga. 755

Smith, administrator. vs. Head.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Arbitration. Practice in Supreme Court. Insurance. Husband and Wife. Before Judge Simmons. Bartow Superior Court. January Term, 1885.

Reported in the decision.

John W. Akin, for plaintiff in error.

J. A. Baker, for defendant.

Jackson, Chief Justice.

This is a contest between Mrs. Head and Smith, administrator of Gregg, over the money arising from a life policy of the husband of Mrs. Head on his death. The case was tried on the following agreement of facts:

"We hereby agree to try the above stated case before the Hon. J. C. Fain, judge of Bartow superior court, or T. J. Simmons, judge presiding, who may direct the jury what verdict to find as between complainant and defendant, Smith, administrator, all questions being left to his decision, upon the following agreed statement of facts:

The transfer upon and of the policy of insurance in question, to-wit, policy No. 20, 546, issued by Ætna Life Insurance Company, of Hartford, Connecticut, upon the life of John D. Head, payable to his wife, Lucy E. Head, was made by said Lucy E. Head to Said Theodore E Smith, as administrator, etc., without any consideration passing to her from the said Smith, administrator, or his intestate, or any one for him. It, the said transfer, was made to secure a debt due by John D. Head, the insured, to said Smith, as said administrator, etc. And at the time said policy was issued, said John D. Head was insolvent, and he paid the premiums thereon with his money. Said John D. Head was, when said policy was issued, and ever since then till his death, the husband of said Lucy E. Head. Said policy to be in evidence also."

1. There is no reservation of the right to except to the direction given by Judge Simmons to the jury, but the agreement is that he "may direct the jury what verdict to find as between complainant and defendant, Smith, administrator, all questions being left to his decision upon the following agreed statement of facts, " etc. The agreement is an absolute submission of the whole matter to himor Judge Fain for arbitration between the parties—the jury being a mere machine—a ministerial body to make a verdict just as the arbitrator determines. Can such an arbitration be brought here? It is doubtful, to say the least; but as we reach the same conclusion on the merits, we consider the case.

2. A married woman's property cannot be assigned by her or conveyed by her in any form to pay her husband's debts. This policy, payable at her husband's death, is her property. The policy is payable to her then. It is as much hers as any other property can be, as any note payable in the future, or any fee in remainder, or any other property not to be used by her till a certain event transpires. Therefore, when, in 1876, she made this transfer, attested by her husband as a witness, it was absolutely void, under the words of our statute. Code, §1783. That section declares that " any sale of her separate estate made to a creditor of her husband in extinguishment of his debts shall be absolutely void, " and that " she cannot bind her separate estate... by any assumption of the debts of her husband." This is a sale of her property to pay his debt to Smith,...