Crawford v. Brady

Walker, J. [1.] We think the Court did not err in overruling the motion to continue the case, on the ground of the absence of the party in the military service. The act of 1861, Pamph. Acts. p. 59, only “ authorized ” the Courts to continue for this cause. It was not compulsory. In this case, it does not appear that any harm was done the absent party; it was not alleged that his presence was necessary to enable the attorney to represent his rights. The statement of the at-' torney was that he desired the presence of his client. This is no legal reason for a continuance. In showings for Providential absence, the counsel must state, in his place, that he cannot go safely to trial without the presence of his client. Code, see 3153. [2.] The bond of Burton T. Dennard to Wm. M. Brady, in trust for his wife, had been materially altered, and the testimony of Davis was certainly admissible to explain the alteration. Code, sec. 3758. If there was any ambiguity in it, either patent or latent, it was admissible to explain that also. Sec. 3721. [3.] What rights did this bond give to Mrs. Brady, now Mrs. Wilcher ? We think it is an obligation, binding the obligor 'to pay to the trustee, for her use, an amount egudl to one-third of old Mr. Dennard’s estate. It is not a conveyance, but an obligation for a conveyance, which a Court of Equity will enforce. We think the intention was, to create a separate estate for the sole use of Mrs. Brady. This is very evident from the testimony of Davis, which shows that Burton T. Dennard intended “ to settle the property on ” her; and a Court of equity will carry into effect such intention. I am aware that some cases, decided by this Court, do not seem to harmonize very well with this view of the case, particularly Denson vs. Patton, 19 Ga. R. 577, and Fears vs. Brooks, 12 Ga. R. 195. These were cases where the conveyances had been completed, and all was done that was intended to be done; while this was a mere obligation to con [191] rey, and the conveyance, when made, might declare the trusts according to the intention of the parties, “to settle the property on Mrs. Brady.” Besides, when this case was before this Court on a former occasion, (24 Ga. R. 135) Judge McDonald, delivering the opinion of the Court, says: “After the satisfaction of that judgment, (one in favor of Jerry Cowles,) Mrs. Brady has the highest claim under the agreement of compromise. That agreement was never executed by a division of the property, and a conveyance in trust for Mrs. Brady, and she has a right to demand its execution before the property can be appropriated to the payment of the debts of her deceased brother. By the agreement of compromise she is entitled to it as coming from her father's estate, as it was on condition that she should have an amount equal to one-third of her deceased father’s estate, if she and her deceased husband would abandon their proceedings against the will, which was done.” This may not be a decisión of the case, yet, as an expression of opinion of one of our predecessors who was, perhaps, as familiar with the law in relation to trusts, marriage settlements, &c., as any one who ever sat on this bench, it is entitled to much weight. Again, in Johnson vs. Hines, 31 Ga. Rep. 728, Judge Jenkins, delivering the opinion, lays down the rule that conveyances to the wife directly, either by the husband or another, may be upheld in Equity; that the conveyance is a declaration of a trust and Equity will hold him and his representatives bound by it; especially when the property came through the wife, with an understanding that it should loe her separate property. ‘ The .true intent of the parties will be carried into effect in Equity without regard to form.’ In accordance, with these views, the Gode says, section 2288 : “ Mo words of separate use are necessary to create a trust estate for the wife. The appointment of a trustee, or any words sufficient to create a trust, shall operate to create a separate estate.” We think, therefore, the bond created a right in the husband, not in his individual character, but as the trustee of his wife, which a Court of Equity will enforce for her use and benefit. [192] It is objected that the husband had no power to make the contract which he did with Burton T. Dennard. Could he not abandon the caveat if he chose to do so ? We think so. It is true there was an agreement,'that on his doing so and the will being established, his wife should, in effect, share equally with her brother and step -mother, in the estate of her father. Was there any thing wrong in this? Upon the establishment of the will the whole property went to Mrs. Dennard and Burton; and by the course pursued by Brady and wife, an amount equal to one-third, was to be settled on her. How are the plaintiffs wronged by this arrangement? We are unable to see. The complaint must be that Brady did not litigate and recover the property for them. That he ought to have paid his debts is very true; but that he failed to place this fund, belonging to his wife, within the reach of his creditors is equally true. [4] Again, it is insisted that this bond is void under the act of 1817, Pamph.p. 57, “To require marriage settlements tó be recorded.” That act contemplates a settlement made by the husband, and does not apply to a case like this. See Code, Section 1727. Again, it is insisted that as Mrs. Brady was the sole heir at law, of Burton T. Dennard, deceased, and that as William M. Brady took possession of the estate of Burton T., that was such a reduction to possession, as would vest in him the title to the property left by Burton. [5] The rule in such a case is, that “ the husband must reduce the wife’s property or dioses in action to possession as husband, in order to defeat the wife’s title by survivor-ship.” 21 Ga. R. 136. Upon the death of Burton T. Dennard, Brady took out letters of administration on his estate, and administered the estate in part. We have looked through the record in vain to find any evidence that he held possession otherwise than as administrator. As such administrator he was entitled to the possession of the property, but such possession could not be called an administration of it. His title could become complete only after the payment of [193] the debts of Burton T. Dennard. These debts were not paid during the lifetime of ¥m. M. Brady. As administrator, Brady procured an order of sale, and exposed the negroes to sale, and for some reason, perhaps because they did not sell for as much as he thought they should, Wright Brady, at his request, “bid then in for the estate.” [6] We think the facts show that his possession was as administrator and not as husband. This being the case, upon his death, the wife became entitled to receive, as sole heir at law, the property of her deceased brother. Judgment affirmed.