Wayne v. Hartridge, (No. 506.)

• Court: Supreme Court of Georgia
• Writing for the Court: HILL
• Citation: 147 Ga. 127,92 S.E. 937
• Docket Number: (No. 506.)
• Decision Date: 14 June 1917
• Parties: WAYNE et al. v. HARTRIDGE et al.

(147 Ga. 127)
92 S.E. 937

WAYNE et al.
v.
HARTRIDGE et al.

(No. 506.)

Supreme Court of Georgia.

June 14, 1917.

[92 S.E. 937](Syllabus by the Court.) (Additional Syllabus by Editorial Staff.)

Error from Superior Court, Chatham County; Davis Freeman, Judge.

Application by W. H. Wade, administrator de bonis non cum testamento annexo of the estate of Henry C. Wayne, deceased, for letters dismissory for determining disposition of a fund, in which Mrs. Adelaide Hart-ridge Wayne, Henry N. Wayne, and Mrs. Mary Wayne Patterson filed a caveat, and in which E. B. Hartridge and another also riled a caveat. The ordinary sustained the caveat of Henry N. Wayne and Mrs. Mary Wayne Patterson, and overruled the other caveat, and from a judgment on appeal to the superior court sustaining the appeal and caveat filed by E. B. Hartridge and another, Henry N. Wayne and others except. Affirmed.

This case was tried upon the record and an agreed statement of facts, which are substantially as follows: Henry C. Wayne was a cadet at the United States Military Academy at West Point for four years from 1839 to 1843. After graduation he served as a captain in the United States army until the War between the States. At the outbreak of the war he resigned from the United States army, and served as an officer in the army of the Confederate States throughout the war, becoming a brigadier general. After the war General Wayne resided in Savannah, Ga., until his death on March 15, 1883. After his death a will in his handwriting, dated April 19, 1882, was filed in the court of ordinary of Chatham county, and was probated in common form on April 13, 1883. His widow, Mrs. Adelaide Hartridge Wayne, qualified as executrix of the will. General Wayne owned no real estate at the time of making his will, nor at the time of his death. Surviving him were his children by his first wife, namely, his son, Rev. Henry N. Wayne, and his daughter, Mrs. Mary Wayne Patterson, both of whom are in life and his sole heirs at law. He also left in life his second wife, Mrs. Adelaide Hartridge Wayne, who died intestate in June, 1913, leaving no children in life, her heirs at law being her nephews and nieces, E. B. Hartridge and others.

Under section 15 of the act of Congress of July 5, 1838 (5 Stat. 258, c. 162), commissioned officers of the United States army received one additional ration per diem for every five years' service in the United States army. This was commonly known as "longevity pay, " and was paid to Captain Wayne and other officers. In computing the amount due all officers the United States government did not count the time of service as a cadet in the Military Academy at West Point. This was the uniform rule followed by the government until the decision of the Supreme Court of the United States in United States v. Watson, 130 U. S. 80, 9 Sup. Ct. 430, 32 L. Ed. 852. After this decision the government allowed additional "longevity pay" (that is, ration pay computed on the basis of service at West Point), except to such officers as served in the Confederate army. The government ruled that, under the act of March 2, 1867 (section 3480 of the Revised Statutes of the United States [Comp. St. 1916, § 6387]), this additional "longevity pay" could not be allowed or paid to officers who served in the Confederate army. By act of Congress of July 6, 1914 (38 Stat. 454, c. 136 [Comp. St. 1916, § 6387a]), section 3480 was repealed in part. After the act of July 6, 1914, a claim was filed for this additional "longevity pay" due Henry C. Wayne as an officer in the United States army, and this claim was allowed by the government; in 1914, and reported to Congress by the Secretary of the

[92 S.E. 938]

Treasury under the deficiencies appropriation act of July 7, 1884 (23 Stat. 254, c. 334). The money was appropriated by Congress to pay this claim, that is the additional rations to Henry 'c Wayne for the years 1839 to 1861, allowed by the government in 1914, under the act of 1838, on the basis of adding the four years' service at West Point.

W. H. Wade was appointed administrator de bonis non cum testamento annexo of the estate of Henry C. Wayne on November 18, 1914, by the ordinary of Chatham county. This administrator has on hand $1,406.80, less expenses, being the additional "longevity pay" collected by him from the government, as heretofore set out. The administrator filed an application for letters dismissory in the court of ordinary of Chatham county, for the purpose of having determined whether this fund in his hands should be paid over to Henry C. Wayne and Mrs. Mary Wayne Patterson, the children of...