Hendrix v. Causey

148 Ga. 164 | Ga. | 1918

Gilbert, J.

There was no error in overruling the demurrer, as the equitable amendment was not deficient in the manner pointed out. The record shows that the published citations could not have run for the length of time required by law between the return of the appraisers and the approval thereof by the ordinary. In a proceeding to set apart a year’s support for a widow and minor children out of the property of the deceased husband, the widow may act for the minor children as well as herself. Civil Code, § 4041; Ferris v. Van Ingen, 110 Ga. 102 (7), 118 (35 S. E. 347). In such case the minor children are as plaintiffs and the judgment obtained is in their behalf. The notice required by law of an application for year’s support and the return of the appraisers is for the benefit of persons whose interests are adversely affected by the judgment, and not for the widow and minors, for whose benefit the judgment is rendered. Neither the widow nor .the minor children can complain that others do not have proper notice of the proceedings. See Galloway v. Vestal, 135 Ga. 707-711 (70 S. E. 589). The plaintiff in this case was one of the minors for whose benefit the year’s support was set apart. The title to the property set aside was in the widow and minor children from the time the return of the appraisers was made to the court of ordinary. Civil Code, §§ 4043, 4044; Doyle v. Martin, 61 Ga. 410; Stringfellow v. Stringfellow, 112 Ga. 494 (3 a), 496 (37 S. E. 767). Compare Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488 (77 S. E. 589). The widow can lawfully sell property so set apart when necessary for the support of the family. Cleghorn v. Johnson, 69 Ga. 369; Allen v. Lindsey, 113 Ga. 521 (38 S. E. 975). The court therefore properly admitted the evidence, the effect of which was to show title out of the widow and children and to effectually prevent a recovery of the land from the purchaser from the widow by any one of them. No other verdict than that directed by the court being legally possible under the facts of the case, the court did not err in so directing.

Judgment affirmed.

All the Justices concur;