Lowe v. Cody ex rel. Hill

29 Ga. 117

• Court: Supreme Court of Georgia
• Decided: June 15, 1859
• Status: Published

Opinion

— Benning J.

By the Court.

delivering the opinion.

Was the Court right in overruling the demurrer to the bill?We think so.

It is plain that there was equity in the bill, if the marital right of Elias Cody, the husband of the complainant, Mrs. Cody, had not attached to the property-turned over to him by the executors of her father’s will. And his marital right ■ had not attached to the property for one, if not for two reasons; first, he received the property not as his own, but as trustee for his wife, and, in that character, he gave to the executors a receipt for the property. This was really a renunciation, or waiver, of his marital right, as to the property -y consequently, it prevented that right from attaching to the property. Secondly, the executors had no right to turn over the property, under the will, as the will did not dispose of it¿ consequently, it was not property to which the marital right could attach, but was property which, having been turned over by the executors, through mistake of the meaning of the will, they had the right to take back, to distribute under the statute of distributions. This, perhaps, is as good a reason as the first.

For one or both of these causes, the marital right of Cody had not attached to this property.

Consequently, there was equity in the bill.

Judgment affirmed.

Judge Stephens did not preside in this case, being detained at home by th© illness of one of his children.