Hilliard v. Hilliard

135 Ga. 168 | Ga. | 1910

Atkinson, J.

1. The homestead was set apart under art. 7 of the constitution of 1868 (Code of 1873, § 5135), which, among other things, declared that “Each head of a family, or guardian or trustee of a family of minor children, shall be entitled to a homestead” of realty and personalty, and that it shall be the duty of the General Assembly to provide by law for the setting apart and valuation of the property, and to enact laws for the full and complete “protection and security of the same to the sole use and benefit of said families as aforesaid.” This put the beneficial use in the family. The case of Dismuke v. Eady & Co., 80 Ga. 289 (5 S. E. 494), involved a homestead set apart under the constitution of 1868, and it was held: “Where, in 1870, a father of minor children obtained a homestead in certain lands, and subsequently, during the minority of the children, he remarried, his wife, by .virtue of her marriage, became a beneficiary of the homestead, and it did not terminate upon the arrival of the children at majority, and was not subject to the debts of creditors of the homestead to whom he and his wife conveyed the land, with the approval of the ordinary, to secure such indebtedness.” The case oí Nelson v. Commercial Bank, 80 Ga. 328 (9 S. E. 1075), also involved a homestead set apart under the constitution of 1868; and it was there held: “Where the head of a family as such secured a homestead for his minor children named and described in the application, then married and had another child, his wife and his child by her became members of the same family of which he was head when the homestead was taken; and that family was not dissolved nor the homestead right terminated when the children, for whose benefit the homestead was originally secured, attained majority and withdrew from the family. The homestead continued to exist by operation of law, with the wife and her child as beneficiaries.” See also Barfield v. Barfield, 72 Ga. 668. Und'er these authorities the second wife and afterborn children were held to be beneficiaries of existing homestead estates only on the ground that they lawfully became members of the family. ■ A child adopted under the Civil Code, § 2497, would lawfully come into the-family of the person adopting it (Pace v. Klink, 51 Ga. 220), and for the same reason as a second wife or afterborn children would become a beneficiary of an existing homestead estate set apart and being enjoyed by the family. See, on the general subject, cases cited in 15 Am. & Eng. Enc. Law, 540-41.

2-4. The rulings announced in the remaining headnotes do not require elaboration.

Judgment affirmed.

All the Justices concur.