161 Ga. 311 | Ga. | 1925
The controlling question in the case is whether or not the court properly excluded from the evidence the documentary evidence offered by the defendant to show that the judgment of the court of ordinary setting aside a year’s support for the widow and minor children was afterwards amended in order to include a description of the property and plat. This is true because, as we shall show, the original judgment setting aside this
“It is a well-established rule, that, a judgment setting apart a year’s support being in effect a conveyance to the widow of an interest in her deceased husband’s property, the description of the property must be such as to render it capable of identification; and if the description is so vague and indefinite that the property can not be identified, the title of the estate is not divested by the judgment setting apart a year’s support. McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655); Hawes v. Elam, 131 Ga. 323 (62 S. E. 227).” Hancock v. King, 133 Ga. 734 (66 S. E. 949). The description must be as definite as in a deed. McSwain v. Ricketson, supra. The only description contained in the original judgment setting apart the year’s support touching land was “400 acres land $8000.00.” And there was no plat as required by law. Ga. Laws 1918, p. 122. This description does not identify any particular land, and is insufficient to set aside the land. Lee v. English, 107 Ga. 152 (2) (33 S. E. 39); Pitts v. Whitehead, 121 Ga. 704 (49 S. E. 693); McSwain v. Ricketson, Hawes v. Elam, supra; Beavers v. Wilson, 144 Ga. 231 (86 S. E. 1089); Hutchinson v. Woodward, 145 Ga. 325 (89 S. E. 208); Blackwell v. Partridge, 156 Ga. 119 (118 S. E. 739); Bridges v. Brady, 158 Ga. 886 (3) (124 S. E. 699). There are numerous other decisions to the same effect. Moreover, this seems to have been the accepted opinion of the applicant, set forth in the application to the ordinary, for the amendment of the judgment. As to the admissibility of parol evidence to aid the description, see Blackwell v. Partridge, 156 Ga. 119 (2, 3), and at pp. 129, 130 (supra). It is insisted, however, that where all of the land owned and possessed at the time of the death of the decedent is set aside, such a return is sufficient. It is sufficient to say that in such a case that fact must be shown on the face of the judgment, and not by evidence aliunde. Stringfellow v. Stringfellow, 112 Ga. 494 (2), 496 (37 S. E. 767); McSwain v.
Did the widow and minor children obtain title to the land in virtue of the year’s support judgment as amended by the judgment of the ordinary, dated April 6, 1925 ? This depends upon whether or not the amendment was valid as against the plaintiffs, Mrs. Clemons and Mrs. Thompson, both of whom were sui juris at the time that the original judgment was rendered setting aside a year’s support. This court has said: “There is no provision, in case the objections are sustained, that the matter be again referred to the same or different appraisers. Where the appraisers file their return with the ordinary, they have discharged their full duty. Their commission becomes functus officio. The statute does not contemplate any further action on their part, or the appointment of new appraisers.” Winn v. Lunsford, 130 Ga. 436, 441 (61 S. E. 9); Casey v. Casey, 151 Ga. 169 (106 S. E. 119). On the other hand it appears that if the commissioners, on petition of the widow, did in fact, under the direction of the ordinary, amend their report and the same was approved and recorded by the ordinary, the same is binding as against the widow and minor children. Seeland v. Denton Realty Co., 148 Ga. 628 (97 S. E. 681); Bridges v. Brady, supra. This ruling is based upon the fact that one who has sought and obtained a judgment in his own behalf is estopped thereafter from repudiating that judgment when conditions have made it to his interest to do so. Thus, in the Seeland case, supra, where the facts were almost identical with the facts of the present case, the minor children for whose benefit the year’s support had been set aside were held to be estopped from denying the validity of the judgment. In this ease those who attack the validity of the judgment are adult heirs of S, K, Bush,
Judgment affirmed.