Birt v. Brown

106 Ga. 23 | Ga. | 1898

Lewis, J.

There is no attack made upon the proceedings before the ordinary to set aside the year’s support to the widow, even on the ground of any irregularity. Under § 3467 of the Civil Code, if the widow was dissatisfied with the return of the appraisers, it was her right to file objections thereto, and failing to do so, she acquiesced in their return, and assented to the same being placed by the ordinary upon record as a final adjudication or determination of her right to a year’s support. Such a record has the binding force and effect of any other-judgment of a court of competent jurisdiction. The statute provides for no contest over the amount of the support thus set aside, save upon objections filed before the ordinary to the return of the appraisers. In the first instance when he passes-upon such objections he acts judicially, and an appeal lies from his judgment to the superior court. Phelps v. Daniel, 86 Ga. 365. Even conceding that the ordinary has jurisdiction to re- ■ view such proceedings for a year’s support upon application of the widow, her petition in this case utterly fails to show any legal or .equitable ground for interference by any court. The only fraud she alleges is a mistake of fact, made by the appraisers of the estate before her application for year’s support was filed, in returning property not belonging to the estate. This return bound no one, and was merely prima facie evidence of. what assets the administrator was chargeable with. The plaintiff does not even allege that she did not know the ■ facts concerning the title to the property which she claims was by mistake returned as a part of the estate. Even if she did not know the fact, by the exercise of ordinary diligence she-could certainly have ascertained what property really constituted so small an estate of her deceased husband. A court of' equity even could not have granted relief against such laches. We think, therefore, the court did right in sustaining the demurrer to the petition.

Judgment affirmed.

All the Justices concurring, except Lumpkin,. P. J, absent.