80 Ga. 486 | Ga. | 1888
A widow made application for year’s support out of the estate of her deceased husband. She died before the commissioners appointed to set it apart acted. They, however, went on and performed their duties, made their return, and that return was not objected to, and so, by operation of law, upon being recorded became a judgment (or would have become so had there been adequate parties) in her favor for the year’s support. Subsequently an administrator upon her estate was appointed, and the administrator upon the husband’s estate moved in the court of ordinary to set aside the judgment allowing the year’s support, upon the ground that the widow was dead at the time the commissioners acted and at the time the subsequ ent proceedings took place, That motion was granted and an appeal was taken to the
We think this reason was not good; that the right and power of the administrator to make his application was not derived from the judgment of this court or any direction contained in it, but from the law itself, and the law would be the same before the entry of the remittitur as after it. It is quite a misconstruction of the two proceedings to consider one as-a part of the other. The case which came here and in which this directory matter was inserted in the judgment rendered, was one to set aside a proceeding, and the proceeding was set aside. It was finally ended; and this present application is not a continuation of that proceeding in any respect. It has no connection with it. ' It rests upon the theory which this court
Judgment reversed.