121 Ga. 54 | Ga. | 1904
David Levy died intestate on the 12th day of February, 1901, and Ambrose Ehrlich was appointed administrator of his estate. Eight months after his death, his widow, Lena Levy, died testate, and David Silverstein qualified as her executor. On April 10, 1902, Silverstein, as executor of the will of Lena Levy, filed an application, under the provisions of the Civil Code, §3465, for a year’s support. Ehrlich, as administrator, filed objection, to the appointment of appraisers and to the setting aside of the year’s support. In his caveat he set up, as reasons why the year’s support should not be allowed, that in the year 1881 David Levy applied for and had set aside from his property a homestead in certain real and personal property for the benefit of himself and his family; which at that time consisted of his wife, Lena Levy, and a daughter; that the homestead so set apart consisted of personal property which at the time of the filing of the caveat was probably not in existence, and a certain tract of land in Chatham county which was being administered by the caveator, and out of which, or its proceeds, the year’s support, if allowed, must come; that said real estate comprises the whole of the estate of David Levy; that the land sought to be devised in the will of Lena Levy is the same as that set apart as a homestead to David Levy and his family, which'is now being administered by the caveator as his administrator; that at the time of the death of David Levy, Lena Levy was the sole surviving beneficiary of the homestead estate, receiving the rents, issues, and profits thereof; that in the eight months intervening between the death of David Levy and that of his wife, the latter made no application for a year’s support out of the estate of her husband;
The Civil Code, § 3465, provides that “Among the necessary expenses of administration, and to be preferred before 'all other debts, is the provision for the support of the family, to be ascertained as follows: Upon the death of any person testate or intestate, leaving an estate solvent or insolvent, and leaving a widow, or a widow and minor child or children, or minor child or children only, it shall be the duty of the ordinary, on the application of the widow, or the guardian of the child or children, or any other person in their behalf,” to appoint appraisers whose duty it shall be to set apart and assign to such widow and children, in property or money, “a sufficiency from the estate for their support and maintenance for the space of twelve months from the date of administration, in case there be administration on the estate, to be estimated according to the circumstances and standing of the family previous to the death of the testator or intestate, and keeping in view also the solvency of the estate. . . . The provision set apart for the family shall in no event be less than the sum of one hundred dollars, and if it shall appear upon
Aside from the fact that what was said by Mr. Justice Bland-, ford in the case, in the 77th Georgia was obiter, an examination, of the record discloses that on its facts that case is easily distinguishable from this. In the case cited it appeared on the trial in the court below that in the lifetime of the widow the-husband’s administrator had paid to her or to her representative, the sum of $211.78, for her benefit, to be credited on whatever amount should be set apart as her year’s support or as part of-her distributive share as an heir at law of her husband’s estate.. It appeared that from the beginning it was intended that an application should be made for the widow and minor child fora year’s support, and that between the time of the death of the. husband, on April 28, 1884, and the application for a year’s, support, which was not filed until August 20, 1884, this ad-, vancement was made to her to be credited against whatever-amount should be allowed to her under this provision of the-code. Thus it will be seen that an entirely different question was presented from the one we are now considering. In that, case the widow could with propriety have elected to take a. year’s support, and then a child’s part from the remainder of the husband’s estate ;■ or she could have elected to take her year’s, support and dower. She had a reasonable time in which to, make this election. She elected to take a year’s support, and. had actually received part of it before the application was filed.. It had previously been ruled by this court that the administrator-could with safety make provision for her, taking certain precautions Eor his protection before the setting aside of the year’s, support. Having clearly elected to take a year’s support, the-law announced by Mr. Justice Blandford was good in that case;, but, as will be shown later on in this opinion, it was entirely-too broad a statement to be applicable to the case at bar. As-has been seen, there was but one question for decision in the. case cited, viz., whether the appraisers could set aside a year’s support for a widow who at the time was dead, on an application proceeding in her name. The court below and this, court held that such a proceeding was void ; and all that was,
Our attention was also directed to the case of Farris v. Battle, 80 Ga. 187, where, in the opinion, language was employed which would seem to control the decision of this case; but upon an examination of the original record, as well as from the accurate report accompanying the opinion, we find that the only question 'there presented for determination was whether, where a husband and father resided in Georgia at the time of his death, and his widow and minor children resided in another State, they Were entitled to a year’s support out of his estate as against his ■creditors. The court held, that, upon the death of the husband ■and father, the right to a year’s support vested in the widow and the minor children, and that it was immaterial where they lived. We have no fault whatever to find with that ruling, nor with anything that was said in the opinion as applicable to the facts of that case; but nothing that was there ruled was applicable to the case at bar, and the only thing in that case which is binding on the court is the principle that a widow ■and minor children are entitled to a year’s support, out of the ■estate of the husband and father, regardless of where they happeu 'to be living at the time of his death.
There are other cases in which the dicta enunciated in the ■opinions to which we have referred have been quoted, but nowhere have we been able to find any ruling of binding effect which sustains the position of the defendant in error in this case. Under the section of the code providing for a year’s support, the right of the widow and minor children vests upon the death of the husband and father. It is an expense of administration. In a sense it is a debt of the estate. It is a first charge upon the estate. The object of the law in setting apart a year’s
Judgment reversed.