131 Ga. 323 | Ga. | 1908
Hawes, as administrator of the estate of Hector Thomas, brought ejectment against Elam. The court directed a verdict for the defendant, and the plaintiff excepted.
In the brief of evidence it is recited, that it was admitted “that Hector Thomas, the deceased, was the common grantor, and that Hawes was the administrator of his estate;” also, that Thomas died seized and possessed of the lands in controversy. The defendant “introduced in evidence a certified copy, from the court of ordinary of Stewart county, of the year’s support setting apart 300 acres of land, valued at $2 per acre, without any further description, to Frances Thomas, widow of Hector Thomas, and minor children. The year’s support showed that the administrator acknowledged service upon the application of the widow. It - was approved and admitted to record February 7, 1898.” The defendant also introduced in evidence a deed to the land in controversy, from Frances Thomas to J. B. Tarver. The consideration ex
We are of the opinion that the court erred in directing this verdict. It was not demanded by the evidence, but on the contrary a verdict for the plaintiff might very properly have been directed, even if the testimony shows that, after the administrator had sold off from the lands of his intestate 100 acres of land, the remaining realty of which the intestate died seized and possessed comprised 300 acres of land, the quantity which .it appears was set apart as a year’s support. The return of the appraisers, setting apart the year’s support, is insufficient to effectuate its purpose, because it is too vague and uncertain to be capable of enforcement. It does not .appear that the lands referred to in the return of the appraisers were a part of the estate of the deceased, or that he was in possession of them at the time of his death, or that he was ever in possession of them. It will be observed that there were no words of description whatever, nothing to show where the lands were located. In the case of McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655), it was held: “The judgment setting apart the year’s support being, in effect, a conveyance to her of the interest of her deceased husband in the property, the description of the property must -be such -as to render it capable of identification. If the description is so vague and indefinite that the property can not be identified, the title to the estate is not divested by the judgment setting apart the year’s support.” See also the authorities cited in the case from which the above extract is taken.
The ruling that we make in this ease is not at all in conflict with those decisions which hold that when the return of appraisers to set apart a year’s support shows that the entire estate of the decedent was appraised, and the whole of it is set apart as a year’s support, but fails to minutely describe the realty belonging to the estate, such a return is not incapable of enforcement on the- ground of the insufficiency in the description of the land set apart.
Judgment reversed.