86 Ga. 576 | Ga. | 1891
It appears, from the record in this case that R. S.'. Holloway died testate in 1869, leaving an estate consisting of land and personalty, a widow and nine children, five of whom were minors. The will provided that, the property of the testator should be kept together until his youngest child should come of age, when there should be a division in kind, or a sale for division, share and share alike, to his wife and children. The widow was his second wife and not the mother of the children. In 1874 the widow applied for, as the head of a family, and had set apart a homestead in a portion of the realty for the benefit of herself and the five minor children. The minor children having all arrived at age, the executor, J. J. Holloway, in 1886 filed his petition in equity, alleging therein the death of the testator, the setting apart of the homestead; charging that the homestead was void, on the ground that Mrs. Holloway, not being the mother of the minor children, was not the head of a family, and therefore had no right to have the homestead set apart for herself and the minor children; and praying for the appointment of a receiver to take charge of the land and the rents thereof, and hold it for the benefit of the estate, etc.
The widow testified that the estate was being wasted, there were debts against it and she took a homestead to secure a home for herself and the minor children, of whom she had the care and custody after the death of
Counsel for plaintiff in error relied upon the case of Lathrop v. Soldiers L. & B. Ass’n, 45 Ga. 483, which he claims to hold that “ a widow is not the head of a family of minor children of a former husband by a former marriage.” It is singular that both of the learned counsel for defendant in error, as well as the editor of the American & English Encyclopedia of Law (vol. 7, p. 804), fell into the same mistake. There was really no widow involved in that case. A glance at the facts of the case will show that Mrs. Lathrop was the wife of J. J. Lathrop, and that both husband and wife joined in the application for homestead out of the wife’s estate. She had mortgaged her individual property to the loan association, and made an affidavit on the back of the mortgage that it was executed by her free will and consent, and that the mortgage money was to be used in payment of the price for the propierty. The money was loaned to her on the faith of