180 Ga. 672 | Ga. | 1935
The Court of Appeals desires instructions from this court as to the proper answers to the following questions, which are necessary to a proper decision of this case:
"1. Where a bank depositor dies, leaving an amount on general deposit to his account, less than his indebtedness to the bank on his matured promissory notes to the bank, would the deposit become an asset of the decedent’s estate, as against a properly asserted claim of the bank, so that the deposit might be legally set apart as a year’s support for the widow and minor child ? See, in this connection, Ray v. Dennis, 5 Ga. 357.
“3. If the answer to either of the foregoing questions he that a properly asserted claim by the bank would be superior to the claim of the widow and minor child of the deceased for a year’s support, would the rule be different where the bank fails to exercise its right to set off its matured debt due it by the depositor against his general deposit until after the appraisers have filed with the ordinary their return setting apart the deposit account as a year’s support for the widow and minor child, and such return has been duly approved and recorded by the ordinary ? See, in this connection, Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488 (77 S. E. 589).”
The first question propounded to us by the Court of Appeals has been carefully considered, and is answered only after much difficult study and examination of the statutes and authorities relative to year’s support and the rights of debtors and creditors. In reaching our conclusion in this matter, we have endeavored at all times to keep in mind the policy of our law relative to a year’s support. A year’s support is a favorite of the law, and it is the policy of the law to provide an immediate and effectual means of ready support to the widow and children for the year ensuing after the death of their spouse and sire; and the courts of our State are under the duty, in all proper cases, to promote and carry out this policy. As was said by Russell, C. J., it “is an anomaly dictated solely by a very humanitarian public policy, and in its administration this public policy should not be overlooked or disregarded in
While it is true that the right of a widow and minor child to a year’s support out of the assets of the estate of their deceased husband and father takes precedence over and is prior to any sort of claim, demand, or- debt against such estate, save as excepted by statute, and is an encumbrance higher than any lien or debt upon such estate, only such property, including a chose in action, as can be rightfully deemed as belonging to and forming a part of the assets of the estate of the decedent at the time of his death, can be set aside as a part of the allowance for a year’s support. Odom v. Hoppendeitzel, 153 Ga. 20 (111 S. E. 419); Griffeth v. Haygood, 174 Ga. 22 (161 S. E. 831); Summerford v. Gilbert, 37 Ga. 59; Barron v. Burney, 38 Ga. 264; Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858 (151 S. E. 796). It is also true that the right to a year’s support is absolute, and vests in the widow and minor child immediately upon the death of the decedent. Miller v. Miller, 105 Ga. 305 (31 S. E. 186); Brown v. Joiner, 77 Ga. 232 (3 S. E. 157); Anders v. First National Bank, 165 Ga. 682 (142 S. E. 98). However, the title to the particular property which may be set apart does not vest in the beneficiaries until the return of the appraisers is made to the court of ordinary. Hendrix v. Causey, 148 Ga. 164, 166 (96 S. E. 180); Doyle v. Martin, 61 Ga. 410; Brown v. Joiner, supra; Swain v. Stewart, 98 Ga. 366 (25 S. E. 831); Stringfellow v. Stringfellow, 112 Ga. 494 (3 a), 496 (37 S. E. 767). Yet the fact remains that such year’s support can only be carved out of or set aside or apart from the estate, or assets of the estate, of the decedent. Ordinarily such debt of the bank to the decedent would constitute an asset of the estate of such decedent and be subject to the right of his widow and minor child
A general deposit in a bank passes title to the deposit to the bank. The relation of debtor and creditor is created between bank and depositor. However, the depositor becomes the owner of a chose in action, an open account in which the bank is debtor to the depositor for the amount of such deposit. See Macon National Bank v. Smith, 170 Ga. 332, 338. If the depositor owes the bank, the bank may, upon maturity of the debt due it, apply the proceeds of the deposit to the satisfaction of such debt. It is not necessary that such debt be evidenced by any note or other writing and that the depositor shall have given to the bank authority to so apply the proceeds of the deposit therein upon maturity of his debt to the bank. In Ray v. Dennis, 5 Ga. 357, it was said:' “If the intestate was indebted to the defendant in his lifetime, in an equal or greater amount than the debt due from the defendant to the intestate, then the intestate’s demand, as against the defendant, was paid and extinguished by such indebtedness; and the note of the defendant, in the hands of the intestate’s administrator, can not be considered as assets, for the reason it has been paid olf and extinguished by the intestate’s mutual indebtedness to the defendant at the time of his death. The intestate, if in life, could not have recovered the amount of the note from the defendant, nor can his legal representatives. . . If the debt of the defendant, held by the intestate at the time of his death, was paid by the intestate’s indebtedness to him at that time, then the note in the hands of the administrator is not, in contemplation of law, assets upon which the statute directing the order in which debts are to be paid can operate.” This reasoning and ruling is directly applicable to the situation arising in this case. Along the same line see Whitehead v. Fitzpatrick, 58 Ga. 348; Scott v. Armstrong, 146 U. S. 499 (13 Sup. Ct. 148, 36 L. ed. 1059); State v. Brobston, 94 Ga. 95 (21 S. E. 146, 47 Am. St. R. 138). See also Code of 1910, §§ 4345, 5669 (Code of 1933, §§ 20-1306, 81-802).
We have not overlooked the decision of the Court of Appeals in Luthersville Banking Co. v. Hopkins, supra, wherein it was ruled that where a depositor in a bank was indebted to the bank in a sum in excess of the deposit, on a promissory note which had matured at the time of his death, such “open account due by the bank was a part of the decedent’s estate, and as such was subject to be admin
Under the instructions given to the Court of Appeals in answer to the first question, the second question need not be answered; and the third question is answered in the negative, for that under the facts of this case the deposit in the bank did not pass to and become a part of the assets of the estate of the decedent, and for that reason could not be subjected to any claim of the widow for a year’s support. It was not a question of who could exercise their claims .the quicker. In so far as the estate of the decedent was concerned, the case is just as if the decedent had before his death parted with the legal title to such chose in action.