Love v. Anderson

1. A homestead set apart March 26th, 1877, under the constitution of 1868, for tiie benefit of a wife and minor children, was not subject to alienation by the husband to the wife any more than to any one else without an order of the judge of the superior court for reinvestment, as prescribed in the act of February 26th, 1876. Code, §2025. This was true although at the time of the attempted alienation the wife was the sole beneficiary of the homestead, the minor children having then attained their majority. 2. The wife, after the death of the husband, having continued to enjoy the benefit of the homestead up to the time of her own death, was neither entitled to dower nor to a child’s part, and at her death the property reverted to the husband’s estate; and she having left no child, it descended, by virtue of the act above referred to (Code, §2024), exclusively to the children of the husband by a former wife.

Homestead. Husband and wife. Dower. Before Judge Marshall J. Clarke. Fulton superior court. September term, 1893. Petition by Anderson, administrator, for direction, etc. The casé was tried before the judge without a jury. It was agreed that the facts were as follows : Jordan Love died in January, 1888. Plaintiff was appointed his administrator in August, 1889. Deceased’s whole estate consisted of a house and lot in Atlanta. This ■property, on March 26, 1877, upon petition of Miranda Love, wife of Jordan Love, was set apart 'as a homestead for tbe benefit of herself and Willis and Anna Love, two minor children of Jordan by a former marriage, Willis being then sixteen years old and Anna fourteen. On May 4, 1887, Jordan Love executed and delivered to his wife a deed conveying to her in fee simple the house and lot, the consideration recited in the deed being $10. Miranda died about six months after her husband’s death. The administrator regularly sold the property in November, 1889, executing to the purchaser the usual conveyance. The purchase money received was '$1,900, of which he has paid out several amounts for the estate, approved by all the parties to this suit. The remainder of the fund is the subject of controversy between the heirs of Jordan Love, to wit Anna and Willis Love, and the heirs of Miranda Love, to wit her mother, her brother and two sisters. As stated in the opinion of the court below, the two children of Jordan Love contended that the deed from him to his wife is void, because the property embraced in it was then the subject of a homestead and could not be alienated, and as a consequence the title to the property was in Jordan to the moment of his death, and thereupon immediately descended to his heirs. As stated in their answer, they contended that Miranda Love, having by operation of law a conditional life-estate vested in her in the use of the homestead property, of which the death of her husband did not deprive her and which still remained a homestead until her death, she never having married or done anything to put an end to said homestead and life-estate, at the instant of her death and not until then the fee of the property reverted to the estate of Jordan Love, and they, his children, were then the sole heirs at law of said Jordan; and that the deed was void for gross inadequacy of consideration and fraud, etc. The heirs of Miranda contended that the deed is valid notwithstanding the homestead, and that she died the owner of the property, and they, as her heirs, are entitled to the same. The court held that the deed was void, because made during the existence of the homestead, and that the title to the property was in Jordan up to his death and thereupon descended immediately to his heirs; and decreed that the fund in question be distributed, one third to Willis, one third to Anna Love, and the remainder in equal proportions to the heirs of Miranda. To this decision the heirs of Miranda “ and also Willis Love and Anna Love, coplaintiffs in error, being made so by the said codefendants,” excepted, and alleged that the court erred in so decreeing, and in not decreeing that the heirs of Miranda should receive the entire fund remaining in the hands of the administrator, and in adjudging the deed to be void. The heirs of Jordan Love “ and also Jeff Erwin, Matilda Simmons, Sarah Ann Hill and Matilda Davis (heirs of Miranda), coplaintiffs in error in this cross-bill of. exceptions, being made so by said codefendants,” excepted, and alleged that the court erred in making the decree, and in not decreeing that Willis and Anna Love should receive each one half of the amount remaining in the hands of the administrator.