114 Ga. 995 | Ga. | 1902
Lead Opinion
T. G. Horn died in 1864, leaving a widow, Elizabeth Horn (his second wife) and two sets of minor children. Application was made for a year’s support for the widow and minor children; appraisers were appointed, and they appraised the estate .at less than $500 in value, and set it all aside as a year’s support. The evidence, which, as will be seen, was mainly by parol, is conflicting as to whether the estate was set apart in kind or in money. There was evidence that it was set apart in money, and that Elizabeth Horn bought the property which was sold to raise the money, the administrator making her a deed and taking her receipt for the amount due her as a year’s support. At all events, Elizabeth Horn lived upon the land until 1899, when she died. Her administrator advertised the land for sale for purposes of distribution, and the children of T. G. Horn by his first wife interposed a claim to a five-eighths interest in the property, basing their claim exclusively upon the year’s support set apart out of their father’s estate in 1867. The claim was tried before a jury, who returned a verdict in favor of the administrator; and the claimants’ motion for a new trial having been overruled, they excepted.
On the trial of the case in the court below the claimants assumed the burden of proof. In order for them to recover it was necessary to show that the year’s support under which they asserted
Judgment affirmed.
Dissenting Opinion
dissenting. I am unable to agree with the conclusions which a majority of the court have reached in this case. Horn died in 1864 and left a widow and certain minor children by her, and other minor children born of a previous wife. His estate was less than $500 in value, and was set aside generally as a year’s support for the widow and minor children. The return of the appraisers, which set aside the entire estate as a year’s support, did not indicate what part thereof should be for the benefit of the widow and her children, and what part should be for the support of the children of the deceased wife; and the majority of this court rule that, because this does not appear, the minor children of the deceased wife can take no interest in the estate which was so generally set aside for the support of the wife and minor children. I am aware that the Civil Code, § 3470, provides that if there are two sets of minor children by different wives, the appraisers shall specify the portion going to the children of the deceased wife; but I take it that if the appraisers in all cases do not do so, the minor children of the deceased wife are not deprived of their right of support. The Civil Code, § 3465, which provides for setting aside a year’s support, contemplates the appointment of appraisers to set aside a sufficiency from the estate of the deceased for the support and maintenance of the wife and minor children. This means not only the minors of the living wife, but also a sufficiency for the support of the minor children of the deceased wife; and when appraisers enter upon the duty assigned to them it is not only proper, but is a requirement of the law, that that portion of the estate which is found sufficient for the support of the minors of the deceased wife shall be separately set aside, and when so set aside it vests exclusively in those children. The law favors the policy of supporting the widow and all the minor children for one year. Now, when the estate does not exceed $500, the same section of the code declares that all this estate shall be set aside to the widow and minor chil-dren — that is, both sets of minor children. In that case the appraisers are not called on to divide or apportion the estate. The law declares it shall all be set aside; and to rule that because the appraisers do not designate a particular part of that estate which is to
I may further say that I am not to be understood as assenting to the proposition that the record in this case showed that a year’s support was legally set aside to either the wife or children.