Roby v. Boswell , 23 Ga. 51 ( 1857 )

By the Court. —

McDonald, J.

delivering the opinion.

This cause went to trial on the bill and answer. The an-, swer was the only evidence in support of complainant’s cause, and the charge of the Court, which is made the ground of exception, must be construed as it was given, in reference to the admissions of the answer. According to the answer, then, Thomas Howard, the father of Mrs. Roby, died in January, 1845. She first intermarried with William Boswell. This marriage took place after the death of her father, in the latter part of the same year. William Boswell departed this life in the latter part of the year 1846, leaving his widow, the present Mrs. Roby, and one child, the complainant, surviving him. William Boswell received from the administrator of the estate of the deceased father of his wife, her distributive share of the slaves to which she was entitled as one of his heirs at law. Pie reduced no other part of her share of the estate to his possession.

The administrator died afterwards, and administration de bonis non was granted to Vanover.

In August, 1847, defendant, Roby, intermarried with the widow of Boswell, by which marriage, he insists that he became entitled to that part of the estate of her deceased father which survived to his wife on the death of her first husband.

Under this construction of his marital rights, the administrator paid to him the portion of the proceeds of the real estate of his wife’s deceased father to which she .was entitled. From the sale of other portions of said intestate’s estate, he received, on the same account, $986.92. The defendant’s counsel asked the Court to charge the Jury, thai complainant was not entitled to a decree in this case, because it appears by the answer of the defendant, which is admitted by complainant to be true, that Thomas Howard, the grand-father of the complainant, Lmcius Boswell, departed this life before the marriage of his mother Malinda, and before his birth, and before the passage of the Act of the Legislature of 1845. The Court refused to give this charge, and charged the jury that under the facts of the case, as they appear in the answer of the defendants, the complainant was entitled to recover. The exception is to the refusal of the Court to charge as requested, and to the charge as given to the jury.

[1.] The matters for consideration here, are, 1st. Whether, as the ancestor, from whom the property descended, died prior to the passage of the Act of 1845, under which the complainant claims, the provisions of the Act apply to this case.

2d. Whether the Act is not an invasion of the marital rights of defendant, Roby, the rights of his wife having accrued before its enactment, and whether, therefore, it does not impair the obligation of his marriage contracts.

We think that no right of Mrs. Roby was impaired by the Act of 1845. At the death of her father she was sole, and the Act of the Legislature did not divest a single right that she possessed. Her rights remained the same after the Act that they were before. Her rights would have been the same if her father had not died until the Act was passed. In either case, the right to an equal distributive share of his estate would have vested in her. She would have had the right, while sole, to have received and had the absolute dominion over it, in either case. To hold that the Act applied to this case, then, will not have the effect of divesting any of her rights to the property. If before marriage she had not reduced the property to possession, the administrator would have held it in trust fox her. She did not have the property, but she was entitled to it, and she was entitled to it by inheritance. At the time of her first marriage, then, she was entitled to considerable property by inheritance. The Act of 1845 had then been passed. That Act declares that "whenever any feme covert having a child or children living, by a former husband, shall be entitled to property by inheritance, such property shall not belong to the husband of said feme, covert, as heretofore, but shall be equally divided between all the children of said feme covert and said feme covertP When the first husband proposed marriage, he knew that she had no property. He knew also that she was entitled, to property by inheritance. He further knew that such parts of that property as he should reduce to possession, during coverture, would become his absolutely, and would be distributable among his heirs at law, upon his death intestate and that such parts of the property as he should not reduce to possession, would, on her second marriage, be divisible between her children of both marriages and herself. Thus far, then, we see no reason why the statute should not apply to this case.

It divested no vested rights, and if the widow had not married a second time, the property which her husband had reduced to possession, he having, died intestate, would have been distributable between herself and her child, and the part that he did not reduce to possession would have survived to her and remained hers absolutely.

[2.] This Act cannot impair the obligation of the marriage' contract of Roby, the second husband, and is therefore no invasion of his marital rights. The Act was passed long before Roby’s marriage, and long before he could have contracted legally a marriage with his wife. The Constitution of the United States prohibits the States from passing laws which shall impair the obligation of contracts existing at the time the law shall be passed. Roby’s marriage was after the law and subject to it.

[3.] At the time he contracted marriage with his wife, she had a child by a former marriage, and to that part of the property which descended to her, or to which she became entitled, on the death of her father, as one of his heirs at law, and which her first husband had not reduced to possession, she was entitled by inheritance. As soon as she became the wife of the defendant, Roby, she became a feme coverl, having a child by a former husband and was entitled to property by inheritance. It is insisted that the statute only applies to cases in which the wife shall become entitled to the property during the coverture; that is, such as she shall inherit during coverture. Such is not the letter of the statute, nor do we construe it to be the spirit of it. The intention was, that in all cases in which the wife was entitled to property by inheritance, and having two or more sets of children, as the property came by her, she and her children should share .equally in it. This was the statute at the time the defendant contracted marriage. The statute has no reference to the time at which the right of the wife vested. The only questions to determine his rights are, whether, when the husband seeks to obtain possession of the wife’s property, is she entitled to it by inheritance; has she a child or children by a former marriage ? These questions being answered affirmatively, the statute applies and fixes the interest he takes.

Judgment affirmed.