9 S.E.2d 710 | Ga. Ct. App. | 1940
1. The widow of a deceased person is entitled to a year's support out of his estate, whether he dies testate or intestate. In case of testacy, in order to put the widow to an election between the provisions made in her favor in the will and her right to a year's support under the statute, such testamentary provision in her favor must be either expressly made in lieu of year's support, or the intention of the testator to that effect must be deduced by clear and manifest implication from the will, founded on the fact that the claim of year's support would be inconsistent with the will or so repugnant to its provisions as necessarily to defeat them.
(a) The will here did not expressly make any provision in lieu of a year's support, or call for any election on the part of the widow.
(b) The allowance to her of a year's support was not inconsistent with the will or so repugnant to its provisions as to disturb and defeat the testamentary scheme.
2. After the will was probated, the widow was entitled, under its terms, to receive, use, and consume as her own what she testified she had received, and this would not bar her right to a year's support, or require her to account therefor in having the year's support set apart.
3. The court erred in directing the verdict against the year's support, and in overruling the motion for new trial.
1. Under the Code, § 113-1002, the widow of a deceased person is entitled to a year's support out of his estate, whether he dies testate or intestate. However, a testator may by his will make provision in lieu of this support, in which case the widow may elect under the same rules as regulate her election of dower. § 113-1007. Dower may be barred by a provision made by will, and accepted by the wife, after the husband's death, expressly in lieu of dower, or where the intention of the husband is plain and manifest that it shall be in lieu of dower. § 31-110 (2). In the present case it was provided in item 3 of the will: "I give, bequeath, and devise to my wife, Harriett Clark, for and during her natural life, to be used and controlled as her own, and as much thereof as is necessary for her comfort and convenience consumed by her in any manner that she may deem proper, all of my estate both real and personal, of every kind and character, for and during her natural life aforesaid, with remainder over at her death" as there specified. This will did not expressly make any provision in lieu of a year's support, or call for any election on the part of the widow. But it is contended by the caveators that it shows an intention on the part of the testator to deny to his widow the right to a year's support. According to the evidence, the testator-owned 676 acres of land at the time *740
of his death, and owned considerable personal property besides that set apart in the year's support. The evidence was in conflict as to the value of both the real estate and personal property. The widow was the sole heir at law of the testator; and under the terms of the will all of the property, real and personal, was to be used and controlled by her as her own as long as she lived, with the right to consume as much of it as was necessary for her comfort and convenience in any manner that she might deem proper. "In order to put the widow to an election between the provisions made in her favor by the will and her right to dower in the estate of the testator, such testamentary provision in her favor must be declared in express terms to be given in lieu of dower, or the intention of the testator to that effect must be deduced by clear and manifest implication from the will, founded on the fact that the claim of dower would be inconsistent with the will or so repugnant to its provisions as necessarily to disturb and defeat them." Chambliss v. Bolton,
2. It was contended by the defendants in error that the widow had already received a support for twelve months out of her husband's estate, and that she was not entitled to have set apart to her any other funds or property from the estate as a year's support. After the will was probated, she was entitled, under its terms, to receive, use, and consume as her own what she testified she had received, and this would not bar her right to a year's support. She testified that her husband left $800 cash; that she had spent this, paid the doctor's and other bills; that she had collected two notes, one for $1159.62, and the other for $600, and two $54 items; that she had spent this, except about half of the $1159 item; that she got the income from the farm lands for 1936 and 1937, but that this was only "about enough to carry itself along." By virtue of the will she had a right to take this and use it as her own, and was not required to account therefor in having a year's support set apart to her two years later. In *741 Kinard v. Clay,
3. The court erred in directing the verdict against the year's support and in favor of the caveators, and consequently erred in overruling the applicant's motion for new trial.
Judgment reversed. Stephens, P. J., and Felton, J., concur.