169 Ga. 658 | Ga. | 1929
Lead Opinion
A widow, there being no minor children, caused a year’s support out of the estate of her deceased husband to be duly
Upon careful consideration of the entire record it is very clear that the controlling question in the case' is whether the year’s support allowed by law to a widow, which has been set apart to her in accordance with the statute, can be subjected to the payment of a debt created by the widow prior to the setting apart of the year’s support, when it appears without contradiction that nothing was furnished for the support of the widow as any part of the consideration of said debt. On the contrary the evidence discloses that the consideration named in the note and the deed made by the widow to secure it was the debt of her son-in-law, and that she received no benefit. It is insisted by the - defendant in error that although the debt which the fi. fa. in this case was proceeding to enforce antedated the security deed executed by the widow, nevertheless the judgment of the court of ordinary in allowing the year’s support having placed title to the property therein described in the widow, this inured to the benefit of the grantee in the security deed, under the rule that though a grantor in a deed may have no title at the time he purports to convey it, still if the grantor in such case thereafter acquires title it will devolve -upon the grantee. Civil Code, § 4189. I am of the opinion that the principle stated in the foregoing section has no application whatever to the year’s support provided by the laws of Georgia. Section 4041 is as follows : “Among the necessary expenses of administration, and to be preferred before all other debts, except as otherwise specially provided, is the provision for the support of the family, to be ascertained as follows: Upon the death of any person testate or
A “year’s support” is an anomaly and specially favorite of our legislation and jurisprudence. “The provision for a year’s support is a branch of the statute of distributions, and the persons entitled to it axe just as much and as absolutely entitled as they are, in ease of intestacy, to a distributive share of the residue after the year’s support is deducted and all debts are paid. It is a branch of the statute of distributions, and prescribes how the estate of a deceased person, to this extent, is to be disposed of. Creditors are left out, and adult children are left out, until this much of the estate is withdrawn from it; then they are admitted for participation in the balance. They have no right to anything except by the statute of distributions.” Farris v. Battle, 80 Ga. 187 (7 S. E. 262); Phelps v. Daniel, 86 Ga. 363, 366 (12 S. E. 584); Swain v. Stewart, 98 Ga. 366 (25 S. E. 831); Jones v. Cooner, 142 Ga. 127 (82 S. E. 445). The claim of a widow is superior to legacies given by her husband in his will. Kinard v. Clay, 138 Ga. 544 (75 S. E. 636); Chambliss v. Bolton, 146 Ga. 734 (92 S. E. 204).
The provision referred to in section 4189 by its express terms is confined to matter of contract. It rests ultimately upon the doctrine of estoppel, which will not permit the grantor in a deed to assert a title which conflicts with the assertion of his ownership in a prior deed to the grantee. For that reason the law very clearly declares that one who has by deed entitled another to described property must surrender any subsequent title he may obtain to his grantee, and will not be permitted in any way to injuriously affect his prior title to such grantee. Under numerous decisions of
The point is made arguendo that the plaintiff in error, because she was named as defendant in fi. fa. in the execution, could not file a claim. It is enough to say in this case that no question was raised in the trial, or by the bill of exceptions, that the remedy by claim was inappropriate or illegal. For that reason an adjudication upon that point is not involved in the case. For the reasons stated the trial court erred in directing a verdict for the plaintiff in fi. fa. A new trial should have been granted upon the three general grounds of the motion therefor. The judgment overruling the motion is therefore
Reversed.
Dissenting Opinion
dissenting. On the date of the execution of the security deed the grantor was an heir at law of her husband, and had an interest in the land. The security deed, therefore, was effective to grant, as such security, her entire interest in the land. She was not, therefore, conveying a bare possibility. It was a present vested interest. “When a year’s support is set apart to a widow, it becomes hers absolutely and unconditionally, and she can sell or dispose of it just as any other person might dispose of his property.” Lowe v. Webb, 85 Ga. 733; Stringfellow v. Stringfellow, 112 Ga. 494, 497. Cases cited in the majority opinion deal with different facts. In each of'the cases there were minor children. No case is cited, dealing with the same state of facts, contrary to the cases just cited and decided at an earlier date, which would make it controlling. Applying the above principle, there being no minor children, the widow took absolute title to the land set apart as a year’s support. Immediately upon the judgment setting apart the land as a year’s support it inured to the benefit of the widow’s gran
