Fussell v. Short

96 Ga. 524 | Ga. | 1895

Lumpkin, Justice.

We find it unnecessary to discuss the various questions presented by the motion for a new trial. So far as any questions of fact are involved, the finding was manifestly right, and the law of the case is absolutely controlled by the propositions announced in the first head-note.

Section 4043 of the code provides that an applicant for dower shall give written notice to the representative of the estate, unless she be herself the representative, in which event she must, by publication, give notice to the person or persons interested. In a case where she is not the representative, the only person to be notified is the one who is the representative. In Carter v. Davis, 40 Ga. 300, Judge McCay remarked that: “ As the administrator is the party served, and represents all the interests, the usual course is to trust the defense of the proceedings to him.” Although the law, as laid down in . section 4046 of the code, allows all persons interested in the estate (among whom, of course, are included the heirs and creditors) the right to be heard when an application for dower has been filed, it makes no provision whatever for service upon them, save only when the . widow herself is the legal representative. The reason for .giving them an opportunity to be heard at all is doubtless that suggested by Judge McCay in the case cited supra, viz : the danger of collusion between the widow and the administrator. Such persons as may be interested are privileged to become voluntary parties, though they are by no means necessary parties when there is a legal representative other than the applicant for dower to represent their interests. The section of the code last cited distinctly.points out the time when they may come in and be heard, viz : “ when the return of the commissioners is made.” There is no law authorizing them to enter a traverse to such return, or to otherwise object to the allowance of the same, after it has been made the judgment of the court. It is too late then, for mere irregularities in the proceedings — however gross— unless fraud or collusion between the widow and the administrator be also alleged and shown, for any interference or attack on their part to be made. Williamson v. McLeod, 64 Ga. 761. It will not do for the heirs or the creditors simply to say they were not present when the return of the commissioners was made the judgment of the superior court, and that consequently they had no opportunity to be heard. They are bound to take notice of the proceedings. The law allows them the privilege of coming into the ease after the return is filed, but it presumes they will do so without being specially notified; and after all, there is no hardship in this rule. Everybody interested in an estate of this kind knows it is more than probable that the widow, if the estate is insolvent, will apply for her dower; and it requires but little diligence to ascertain when the return of the commissioners is made, so as to be on hand with their objections to it, if they have any.

In the present case, the attack upon the judgment allowing the widow’s dower in money instead of land, so far as mere irregularities in the proceedings are concerned, came too late ; and there was no sufficient evidence to warrant a findibg of such fraud or collusion as would authorize the judgment finally allowing the widow’s dower to be set aside in an equitable proceeding. No valid reason whatever for disturbing the verdict was .shown. Judgment affirmed.