118 Ga. 491 | Ga. | 1903
Groover, Stubbs & Company recovered judgment against the legal representatives of the estate of W. G. Brown in 1878, upon a debt created by the intestate after 1868. See Groover, Stubbs & Company v. Brown, 69 Ga. 60. W. G. Brown died in 1870. His widow applied for a homestead in realty under the constitution of 1868. -The application stated that the value of tbe house and lot out of which the homestead was sought was
The homestead was set apart under the provisions of the Code •of 1873, § 2014, which provided that when the applicant sought to have set apart a homestead out of town property exceeding in value $2,000, the applicant should have the option to pay, within a given time from the date of the valuation, the difference between the valuation and $2,000; it being declared that “said excess of value contained in such property shall be governed in all respects by the homestead and exemption laws now of force, and shall be thereafter as fully exempt from levy and sale as if the husband or •other head of a family had made a bona fide and legal settlement of the same on the wife and minor children, or either, for their use, benefit, or maintenance, which shall thereafter stand as property •exempt by law from levy and sale, distinct from that permitted by the constitution.” While it is not material to this discussion, it may be remarked that the provision of law just quoted is no longer of force, having been repealed in 1876. See Acts 1876, p. 49, sec. 4. If the applicant for the homestead was the head of a family and the owner of the property, there would be no difficulty in determining what would be the legal status' of the excess at the ter
It is said, though, that the widow did not pay the $850, but that she simply credited this amount on the year’s-support judgment, and that she was not entitled to a year’s support, for the reason that a widow can not take out of the estate of her deceased husband both a homestead and a year’s support. But there is a judgment setting apart a homestead and a judgment setting apart a year’s support. If the widow was seeking to have set apart both a homestead and a year’s support when she was entitled to only one, objection on this ground should have been urged either to the application for the homestead or to the application for the year’s support. When the parties interested in the estate allowed both judgments to be entered, and did not except thereto, the judgments became, as all other judgments, conclusive, and not subject to collateral attack upon any ground which could have been set up as a defense before the judgment was rendered. It may be that the widow was not entitled to a year’s support, but the judgment