58 Ga. App. 57 | Ga. Ct. App. | 1938
Lead Opinion
1. Where it is shown that there are debts against an estate which is being kept together for a time longer than twelve months, a widow is not entitled to have a second year’s support set apart out of such estate of her deceased husband for the support of herself and minor children under the provisions of the Code, § 113-1004. Edenfield v. Edenfield, 131 Ga. 571, 575 (62 S. E. 980); Martin v. Gaissert, 139 Ga. 693, 697 (79 S. E. 40); Hill v. Hill, 36 Ga. App. 327 (136 S. E. 480); Griffin v. Securities Investment Co., 53 Ga. App. 396, 397 (186 S. E. 232).
2. Where, on an appeal from a judgment of the court of ordinary overruling a caveat filed by a creditor to the application of a widow to have a second year’s support for the support of herself and minor children set apart from the estate of her deceased husband, and making the award of appraisers the judgment of the court, subject to the individual debt asserted by such creditor, the caveat was amended by an allegation .that taxes and other debts were due by the estate, which allegation on the hearing was supported by uncontradicted evidence unobjeeted to by the applicant for second year’s support, and there was no issue of fact for the jury, the court did not err in sustaining the caveat and disallowing the application for a second year’s support.
(a) The contention of the plaintiff, that, because of her offer,
(b) The cases cited in the dissenting opinion are clearly without application to the present case. In Jackson v. Warthen, 110 Ga. 812 (36 S. E. 234), it was held that the objection to the year’s support was not filed in the time required by the statute. In Winn v. Lunsford, 130 Ga. 436 (61 S. E. 9), the court held in effect that (1) the objection that the record did not show that citation had been published as required by law was without merit, inasmuch as the court of ordinary was a court of general jurisdiction, and, the record not showing to the contrary, it would be presumed that the citation to show cause was published as required by law; and (2) that the return of the appraisers could be so amended as to include the additional items claimed by the widow and minor children where the total amount of the estate did not exceed $500.
Judgment affirmed.
Dissenting Opinion
dissenting. I am of the opinion that the court erred in entering judgment denying the second year’s support, under the facts in this case. The only basis of the right of the caveatrix to object to the year’s support was her claim against the estate. When she was tendered the amount of her claim, with costs, before the judgment by the applicant, her caveat became