Hill v. Hill

| Ga. | Jan 11, 1892

Lumpkin, Justice.

This case was tried twice in the superior court of Wilkes county before the writer who was then on the circuit bench, resulting each time in a mistrial. My distinguished successor in office entertained upon one of the questions involved an opinion different from that which I had expressed and followed while presiding the trial court. I then thought that although the will had not been admitted to record, and the executor had not qualified as such and had not received letters testamentary, he had the authoiity to make a contract with the widow, by the terms of which she could relinquish her claim to dower and year’s support in the estate, accepting in lieu thereof a money legacy bequeathed to her by the will, and taking in satisfaction of the legacy the executor’s individual note, and that if this transaction was fairly made and free from all fraud, misrepresentation or concealment on the part of the executor, it was binding upon the widow, though made within one month of her husband’s death, and though it was still in her power to restore the status by returning to the executor his note and asserting her claim to dower and year’s support. Whether or not the contract between the executor and the widow was fairly and honestly made, was the issue I submitted to the juries. The question as to the amount of time which should be allowed the widow to consider of her election was not presented to me nor did I pass upon it at all. I simply undertook to follow §2898 of the code, under the terms of which I thought that immediately upon the death of the testator, the person named in the will as executor could begin the discharge of his duties as such, and that all acts done by him which would be lawful and proper if done after the will had been duly probated and admitted to record and he had properly qualified as executor and received letters testamentary, would be valid though done before these things occurred, the executor taking the risk, of personal liability for his acts, in case 'the will should not be set up, or he should fail to receive due authority to act as executor. I now agree with Judge McWhorter and my brethren of this bench in holding that this construction of the section above cited is too liberal. It simply expresses what was the common law on the subject to which it refers, and relates mainly to titles, rights and other matters, derived from or fixed by wills, and does not deal specially with the powers and duties of executors. §§2438 and 2487 of the code prescribe what shall be the powers of an executor before the will is admitted to record and before his qualification, and they do not confer upon him the right to make any such contract as was made with the widow in this case.

Returning for a moment to the other question mentioned, the policy of our law forbids that a widow should be required to determine hastily whether or not she will elect to take a legacy in lieu of her dower and ■year’s support. She should be allowed ample time and opportunity to obtain all necessary information, and to consider the question fully and carefully, so as to act deliberately and advisedly. Granting, for the sake of argument, that the executor had the requisite authority to make with her the contract in question, it was her right, before the record of the will and the qualification of the executor, to return to him his note and repudiate the election, she had made, it being, under the facts as agreed upon, entirely practicable for her to do so.without injury to the estate, or to the executor personally.

Judgment affirmed.