70 Ga. 130 | Ga. | 1883
A fi. fa. in favor of the plaintiff in error vs. W. F. Greenaway, was levied upon certain land, which was claimed by the widow of the said Greenaway as having been set apart to her by a judgment of the court of ordinary as a part of her year’s support, out of the estate of her deceased husband. On the trial, the jury found the land not subject, and the plaintiff in fi. fa. moved for a new trial, which was overruled by the j udge, and this decision is alleged as. error.
Whilst it is not set forth in what Avay the verdict is contrary to law, yet the argument discloses the ground to be that, as the husband died in 1877, and the application for a year’s support was not made until 1881, the widow meanwhile living upon the land, and upon whatsoever of personalty there may have been left at the death of the husband, that she was, therefore, not entitled to any further allowance.
This question was before us in the case of Tabb vs. Collier, February term, 1882,
The cases cited in 34 Ga., 418, and 36 Ib., 194, were cases where objections were filed to the allowance, before the ordinary, and then carried by appeal to the superior court. That was the proper place and the right time to file objections and have the rights of the parties settled. But in the case at bar, there was a judgment of the court of ordinary at a regular term thereof, setting apart this property, and it is sought now to attack it, and have it set .aside in the trial of this claim case, upon grounds which •should have been made by filing'objections thereto, as provided by law.
But we see no legal ground for complaint of the jury on this account. By section 2571 of the Code, it is provided that,- among the necessary expenses of administration, and to be preferred before all other debts, is the provision for the ■support of the family for the space of twelve months; and this is ‘to be set apart upon the application of the widow, 01 that of the guardian of the children, or any other person in their behalf, on notice to the representative of the estate, if there be one; and if none, then without notice. That this is anomalous, in that it affects the rights of parties interested in the estate without giving them direct notice, must be admitted, but being statutory, it is controlling. ■ It is, however, to be remembered that to require the wife to know,- and serve, notice on the creditors of the
In so far as the recitals of notice in the judgment of the -court are concerned, it is only necessary to say that, under the facts set out in the application by the widow for the year’s support, as' shown by the exemplification, there was no necessity for such in this case, there being no representative of the estate. Where there is none, the appraisers are appointed without notice to any one ; they act under their oaths, make their return, and to which return creditors and others interested may file objections, either then, or at any time within six months therefrom. If none are filed, and the judgment of approval by .the ordinary is rendered, it is final.
Judgment affirmed.
68 Ga , 641.