111 Ga. 635 | Ga. | 1900
Lead Opinion
An execution in favor of Mrs. M. J. Fulghum against A. R. Fulghum, as administrator of the estate of R. G. Fulghum, based upon a judgment rendered, upon appeal from the court of ordinary, in the superior court of Pulaski county, on the 10th of August, 1898, was levied upon certain land in that county. To this levy the administrator filed an affidavit of illegality, upon the following grounds: “1st. Because the judgment, upon which said fi. fa. is issued against him as administrator, is founded upon a suit by the plaintiff for her twelve months support from the estate of her husband, R. G. Fulghum, assessing the amount of said support at six hundred and fifty dollars. 2d. That deponent has paid and held and now holds the receipt of said Mrs. Fulghum. for one hundred and two dollars as a part of her said twelve months support, dated the 28th day of January, 1898, which is a part of the allowance for her said twelve months support, and which is a credit to the amount of the judgment, for the amount of said receipt and the interest thereon. 3d. That this receipt and the amount thereof was never pleaded as a part payment of said support at the trial, and the verdict of the jury, in the case when tried, was intended to cover the whole amount allowed said plaintiff for her said twelve months support. 4th. Deponent further says that he has paid to the sheriff the amount of said fi. fa., less the amount of said receipt and interest, for which amount said fi. fa. is illegally proceeding.” Plaintiff in fi. fa. moved
The judgment is for six hundred and fifty dollars, and for this amount the execution was proceeding. The administrator, in his affidavit of illegality, claims that he is entitled to have credited upon this judgment the sum of one hundred and two dollars, which he alleges he paid to Mrs. Fulghum, upon her year’s support, before the judgment was rendered. It is very evident that, if this were an ordinary judgment, an affidavit of illegality, which set up a payment made to the plaintiff in execution prior to the rendition of the judgment, would have no standing in court, as it would seek to go behind the judgment. Unless, therefore, the effect of a judgment setting apart a year’s support is different from that of other judgments, this affidavit of illegality is without merit. Recognizing the general rule, that an affidavit of illegality can not go behind a valid judgment, the plaintiff in error contends that a judgment setting apart a year’s support simply determines the proper amount which should be allowed out of the assets of the estate for such support, and does not preclude the representative of the estate from showing that this amount, or some portion of it, was received by the beneficiary or beneficiaries before the rendition of the judgment. We do not think that this contention is sound.
The proposition that any judgment can be paid in advance of its rendition is, to say the least, a novel one. The law provides that when application is made for a year’s support, it shall be the duty of the ordinary, on notice to the representative of the estate, if there be one, and if none, without notice, to appoint five discreet appraisers, whose duty it shall be to set apart and assign, either in property or money, a sufficiency from the estate for k year’s support. Civil Code, §3465. The appraisers are required to file their return with the ordinary, and upon
If, in determining and fixing the amount which is to- be allowed and set apart as a year’s support, the widow must be charged with the value of what she has previously consumed, it would seem to follow that when the year’s support has been finally set aside, the presumption is that the amount, in value, of the assets of the estate, if any, which she consumed prior to the setting apart of the twelve months support was taken into consideration when the judgment for such support was rendered. As the title to specific property set apart vests in the beneficiaries, it is apparent that the representative of the estate can not, after the title to such property has vested, deprive them of such property, or of any portion of the same, upon the ground that they had received, in whole or in part, their year’s support before the same was formally set aside. If the representative of the estate can not, either in whole or in part, question the title of the beneficiaries to specific property set apart, how can he, if a definite sum of money is set apart, question the right of the' beneficiaries to receive from the estate in his hands the whole of the designated sum? Surely the right to specific property set apart is no more secure or sacred than the right to money set aside as a year’s support. In the present case, if the judgment of court, instead of setting apart six hundred and fifty dollars in money, had set apart to the widow, as her year’s support, a described portion of the land belonging to the estate, of equal value, the title to such land would have vested at once in her; and the administrator could not after-wards have been heard to say: “Mrs. Fulghum is not entitled to receive all of this land, because, before it was set apart, I advanced to her one hundred and two dollars, which was to be credited against her year’s support when the same should be set aside.” A complete answer to such a claim upon his part
Judgment reversed.
Dissenting Opinion
dissenting. I can not agree with the judgment rendered by a majority of the court. It appears from tbe record that Mrs. Fulghum applied for the setting apart of a year’s support out of the estate of her deceased husband. From the judgment of the ordinary fixing the amount to be so set aside, an appeal was taken to the superior court, and final judgment rendered in August,1898. It also appears that in January, 1898, after the death of her husband, the administrator of his
In the present case, the right of the applicant to have a year’s support was conceded, and the only contest was as to the amount. The object of the statute is to furnish the widow and children maintenance out of the estate of the husband until they have a legal right to demand their share as legatees or heirs at law, and it is an exceedingly harsh rule which declares that when an administrator, acting in good faith, contests the amount which ought to be set aside as such support, he can not in the meantime, without danger to himself, advance a sufficiency from the estate to maintain these beneficiaries pending a determination as to what is a proper amount. In my judgment no such rule is deducible from our statute. Indeed, it is expressly provided that from the judgment of the ordinary fixing the amount an appeal may be taken to the superior court, and also that, if an appeal be taken, pending the appeal the family shall be furnished with necessaries by the representative of the estate. Civil Code, § 3467. Surely, if he complies with this mandate, he is not chargeable with the amount finally fixed, to the exclusion of the amount which he had before that time furnished. The judgment rendered was simply the legal ascertainment of the amount which should be taken from the estate of the decedent to support the widow and children for one year, and is conclusive to this extent. For this amount an execution may issue against the administrator, and for this amount he is entitled to credit in his account with the estate, and it matters not, in contemplation of law, whether any