Johnson v. Little , 90 Ga. 781 ( 1893 )

Lumpkin, Justice.

In the case of Neal v. Sawyer et al., 62 Ga. 352, this court decided that a wife living with her husband could not be the head of the family. It is expressly declared in section 1753 of the code that the husband is the head of the family, and this, we apprehend, is still the law, notwithstanding the passage of the act of 1866 declaring that all property of the wife should be and remain her separate estate, the provisions of which ' act were afterwards incorporated in the constitution of 1868 and the present constitution. Consequently, we find no difficulty in holding that a married woman living with her husband as a member of his family is not entitled, even under the present constitution, to have a homestead set apart to her as the head of a family, out of her separate estate, notwithstanding the fact that the husband maybe physically unable to work and possessed of no property nor means of support.

The homestead passed upon in the case supra was set apart under the constitution of 1868, which allowed the right to take a homestead only to each “head of a family, or guardian or trustee of a family of minor children.” The constitution of 1877 not only allows this right to such persons as are described by the woi’ds just quoted, and in the same identical language, but adds other classes of persons who may take the benefit of its homestead provisions, including any “person having the care and support of dependent females of any age, who is not the head of a family.” No reason occurs to us why a married woman having a separate estate, and minor daughters dependent upon her for a support, does not fall within both the spirit and letter of- these words, notwithstanding the fact that she may be residing with her husband. This court evidently took this view when it had under consideration the case of Robson v. Walker et al., 74 Ga. 823. It is true that the question with which we are now dealing was not then before the court, but in the second head-note it was strongly intimated that the applicant, who was a married woman, would have been entitled to take a homestead if the allegations of her petition had brought her within the class above indicated. "We now adopt that intimation as the true law of the question, and rule accordingly.

This does not conflict with the "ruling made in Bechtoldt v. Fain et al., 71 Ga. 495, to the effect that “a married woman cannot have a homestead set apart out of her own property, unless’ she is living separate and apart from her husband,” because that case arose under the constitution of 1868, which, as we have seen, makes no provision for the allowance of homesteads in cases of this kind. This fact, though it does not appear by the official report, we have ascertained by reference to the original record in that case, now on file in the office of the clerk of this court.

In the case first above cited as authority for the prop- • osition that the wife is not the head of the family, it appears that the husband had already exempted the whole of his property’before the wife applied for a home: stead out of her separate estate, and thereupon Chief Justice Warner observed: •- “The same household cannot- have two separate homesteads or exemptions, one secured by the husband in his property, and the other by the wife in hers.” Relying upon this language of .the Chief Justice, counsel for the defendant in error argue that if Mrs. Johnson’s application is allowed, it would be possible for the family in the present case to enjoy the benefits of two separate and distinct homesteads created from different estates, because if Mr. Johnson should hereafter acquire property, he could take a homestead in it; and thus this family, or at least the female members of it, would he beneficiaries at the same time of two separate and distinct homesteads. Granting that he could, in the event he should hereafter own property, exercise his constitutional right to have a homestead set apart out of the same, it would follow that the homestead taken by Mrs. Johnson would cease and determine, if, in consequence of the acquisition and exemption of property by her husband, her daughters no longer remained dependent upon her. • A homestead ceases whenever its beneficiaries no longer' belong to the class for whose benefit such homestead could be set apart, and Mrs. Johnson’s homestead (if allowed)' might terminate, if for any reason her daughters ceased to be dependent upon her, irrespective of the question whether- Mr. • Johnson should subsequently acquire property and exempt it or not. Administering the constitution according to its true intent and spirit, there can arise no serious difficulty because of a state of affairs which the argument of the learned counsel anticipates as a mere possibility.

It will have been observed-that Mrs. Johnson’s application fails to state that her minor daughters are in fact “dependent.” The omission of this vitally important word is fatal to the application as it now stands; but as counsel on both sides, in their able and well-prepared briefs, discussed the case as if this word were in the application, we deem it proper to allow Mrs. Johnson, if she can do so consistently with the truth, to amend her application by supplying this absolutely essential allegation. Upon the case as it stood before the trial judge, he correctly decided that the application was demurrable, and rightly ordered it to be dismissed. His judgmént is therefore affirmed; but under the direction we have given, the case may be reinstated and proceed to a hearing on the merits, if the necessary amendment is made.

Judgment affirmed, with direction.