Hobgood v. Martin , 31 Ga. 62 ( 1860 )

By the Court.

Lumpkin, J.,

delivering the opinion.

The. question in this case is one of interest and new in this Court.

Mary Ann Gausden filed a bill in behalf of herself and children, against the administrator de bonis non cum testan mentó amnexo of her deceased father, Wright Martin, praying that certain property bequeathed to- her by her said father, and not reduced to possession by her husband, be set apart for the support of herself and children.

Pending the bill, and before any order, interlocutory or final, had been passed, the complainant died. A supplemental bill was filed by the children, praying that* the property in question, and alleged to be still in the hands of the administrator, might be set apart for the maintenance and education of the children. A general demurrer, for want of equity, was filed to the bill, and overruled; and the point presented for adjudication is: Does the wife’s right in equity to a settlement survive to her children — she dying pending the bill?

By the practice of the English Chancery Courts, where such a bill was filed, the Court granted a decretal order, requiring the husband to appear before the master and make proposals for a settlement; and if the wife died before the order, the weight of authority, in that country, is — -notwithstanding decided cases to the contrary — no- right survived to the children; aiiter, if she died after, the order. (Chauncey’s Rights of Women, Chap, vii., p. 532.)

In this State, we have no such practice as that adopted in England. Would it he' right to cut off children, after the death of their mother, from a provision out of her unsettled equitable portion, for want of such decretal order ? We think not. And, believing that some rule o-ug'ht to be adopted, founded on principle, and in accordance with the organization of our own judiciary, we affirm- the judgment rendered in this case.

This doctrine is very fully stated by Mr. Hovendon, in his Treatise on Frauds. He says: “The claim of children to have a settlement made on them out of their mother’s equitable property, is entirely dependent upon her living upi to- the period of a final decree for a settlement upon her and her issue; a decree that the husband should lay before the master proposals for such a settlement, will not establish the claim of the children, which may be disappointed by the mother if she ' see fit to come into Court and give up the property. The right of the children, in such case, can only arise out of contract or final decree.

“But if the mother die, after a proposal for a settlement is directed, without having waived the benefit thereof, then, although such settlement was not completed in her lifetime, the husband will be bound by the proposal, as well as his assignees — for the right of the wife does not depend upon a decree or order; her equity attaches at the same time with the jurisdiction of the Court; and, when once a bill has been filed in her behalf — though she should die before any answer is put in — yet, if she has not waived her equity, her children will have an immediate right to the provision — which their mother could have required, if she had lived.” (Two volumes in one, p. 79.)

Thus it will be perceived, .that, according to Mr. Hovendon, the right of the wife does not depend upon the decretal order, but her equity attaches with the jurisdiction of the Court — > that is, when the bill is filed; and that the rights of the children, who claim through her, and not as an independent and substantial right in themselves, will not be lost by the death of the mother — she not having waived her right.

And Lord Chancellor Eldon, in the case of Murray vs Elibank (10 Ves. Chan. Rep. 83), in referring to the case of McCauley vs. Phillips, decided by Lord Alvanley, remarked: “I should have supposed that a decree made in the cause proceeded upon the right or equity in the wife at the filing of the bill; for decrees are only declarations of the Court upon the rights of the parties, 'when they begin to sue/ The wife is entitled to call for a declaration; that she then had a right to a provision for herself and her children.”

Mr. Justice Story states the doctrine thus: “The equity of the children is not one to which, in their own right, they are entitled. It can not, therefore, be asserted against the wishes of the wife, or in opposition to her rights.- The Court, in making a settlement of the wife’s property, always attends to the interests of the children; because it is supposed that, in so doing, it is carrying into effect her own desires to provide for her offspring. But if she dissents, the Court withholds all right from the children. But the right of the children to the benefit of a settlement attaches upon the wife’s filing a bill for that purpose; and if she should die pending the proceeding, without waiving the right to a settlement, the children may, by a supplemental bill, enforce their claim.” (Stor. Eq. Jur. §1419.)

And for the principle thus broadly asserted by Mr. Justice Story, numerous English cases are cited.

We feel authorized, then, to hold that the right of the children attaches upon the filing of the bill by the wife in her lifetime; and that her subsequent death will not defeat the claims of the children. And this appears to be the principle upon which the doctrine rests. If the wife die without asserting her right, she is supposed to have waived it for the benefit of her husband — and this she may do in England, even after the decretal order is passed. But having once asserted her right, the jurisdiction of equity attaches, and it will be exercised for the benefit of the children, although the wife die before a final decree is rendered. If this is not so, then it will be perceived that children in this State are in a worse condition than in England. For there, their right is fixed by the decretal order, unless waived expressly by the mother afterwards; and it is not suspended upon the death of the mother, until a final decree, as is contended for by counsel for the plaintiff in error, is the case here.

It is argued that it interferes with the statutory privilege of the husband, to acquire, by administration, the right to recover and hold, without being subject to distribution, all the rights and credits of his deceased wife. But he takes this fight subject to all the incidents resulting from the wife’s equity. After a decretal order in England, the husband could not upon the death of the wife, exclude the children by administering upon his wife’s estate; and if their right here attaches upon the filing of the bill by their mother, this is not such a right in his wife as he could be entitled to recover for his own use.

The .doctrine of a wife’s equity to a settlement, as against her husband, his creditors and assignees, is comparatively modern in Georgia. Its enforcement was unknown in practice when I came to the Bar. The case before us is another step in the right direction; hence, we desire to see it established upon a firm foundation. We doubt not it will commend itself to the favor of the public, as well as of the profession.

JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.