131 Ga. 571 | Ga. | 1908
(After stating the foregoing facts.)
Only one ground of the caveat was stressed before this court, — that this was not an estate “to be kept together for a longer time than twelve months,” within the meaning of the law, although it was in fact kept together for a longer time, without fault on the part of the widow or any act on her part causing that result; and that therefore she was not entitled to a second year’s support under the provisions of section 3466 of the Civil Code. Section 3465 provides for the setting apart of a year’s support. Section 3466' declares : “When an estate is to be kept together for a longer time than twelve months, -and there are no debts to pay, and a widow and minor children to be supported out of said estate, they shall have a year’s support for each year that such estate may be kept together, and the appraisers aforesaid may act in the same capacity for the second and any subsequent year, or new appraisers may be appointed by the ordinary to assign such support after the first-year.” It was urged that the words, “When an estate is to be kept together for a longer time than twelve months,” had reference only to eases where a testator by his will provided for keeping the estate together longer than a year. Doubtless this argument was derived from a remark made by Mr. Justice Cobb in the course of his opinion in Smith v. Foster, 119 Ga. 376 (46 S. E. 425), where he said that “It might with some force be asserted” that such was the legislative intent. This was not a decision of the point, but only a passing remark, which was immediately followed by a reference to the case of Woodbridge v. Woodbridge, 70 Ga. 733, and a statement that in that case an additional year’s support was allowed where there was no will and the estate had been kept together for three years by a mere failure of the administrator to wind it up. It ‘was said (p. 378) that “The Woodbridge case should not be extended.” The decision in that ease, however, was concurred in by the entire bench, then consisting of three Justices,
Here the delay has been brought about by litigation over the probate of a will, resulting from a caveat filed by heirs other than the widow. It was agreed that she was in no way responsible for the delay, and did not cause it. Construing the previous decisions of this court in harmony, we hold that where an estate has been necessarily kept together for more than twelve months on account of litigation over the probate of the will of the deceased, and the widow has not brought about this litigation or been in any manner responsible for the delay in winding up the estate, if there are no debts, she is entitled to a support for each year that it is thus kept together after the first. Civil Code, §3466. This construction is supported by a consideration of sections 3465 and 3466 of the code together. The former provides for the setting apart of a year’s support, which is ranked with the expenses of administration, and preferred to all other debts. It is provided that the amount shall in no event be'less than the sum of $100; and that if it shall appear upon a just appraisement that the estate does not exceed in value the sum of $500, the whole of it shall be set apart for the support and maintenance of the widow and children; and this is to be done although it may deprive other heirs or legatees of any share therein. And it has been held that the fact that there are no minor
This ease does not present any .question as to the wife’s right to support after the first year when there is a provision in the will of her husband in lieu of year’s support and dower, or where the wife is not a legatee under the will at all, and the litigation as to it is entirely between others; and we decide nothing as to such possible cases. , In determining the amount to be set aside for a second or third year’s support, in such- a case as the present one, the amount of the first year’s support, whether it had been consumed, or whether the widow still has a-portion of it to be used in maintaining herself, the size of the estate, and other surrounding facts, would be
Judgment affirmed.