161 Ga. 818 | Ga. | 1926
Concurrence Opinion
concurring specially. I concur in the judgment of affirmance. The judgment setting aside a year’s support to the widow, rendered at the November, 1921, term of the court of ordinary, based upon the return of the appraisers dated October 7, 1921, appears to be void in part. A portion of the property set aside is in land which is insufficiently described. Bush v. Clemons, 161 Ga. 311 (130 S. E. 914), and authorities cited. Moreover, there was no plat of the land filed with the report of the appraisers, as required by the act of 1918 (Ga. Laws 1918, p. 122). It does not appear from the judgment that all of the land of the ‘deceased husband was set aside. This fact must appear from the judgment, and can not be proved by aliunde evidence. Bush v. Clemons, supra, and authorities cited. It is sufficient to
Lead Opinion
1. If within one year after a man dies his widow and
minor children apply to the court of ordinary for the setting apart of a statutory year’s support under the Civil Code (1910), §§ 4041 et seq., out of the estate of the deceased, and appraisers are duly appointed, who make a return which purports to allow the applicants “the sum of two thousand dollars which the said widow has selected to take as follows,” designating several parcels of land valued at $6,345, and several articles of personalty consisting of farm products valued at $342.50, and states that “we set aside the above property subject to the indebtedness of said estate secured and unsecured, which amounts to approximately $5,2-75.00 from the information furnished us, but which may be more; we also set apart all of the household and kitchen furniture owned by deceased for the use of said widow and children;” and if after such return is made citation is issued and advertised as provided by law, and afterward judgment is duly rendered by -the ordinary confirming the report and admitting it to record, to which no appeal is taken, such judgment is not void on the ground that the property has been set apart subject to existing debts of the deceased, or on the ground that the appraisers have not filed with their report a plat of the land that was set apart. If the applicants be dissatisfied with the return of the appraisers, they have the right of appeal. Phelps v. Daniel, 86 Ga. 363 (12 S. E. 584); Birt v. Brown, 106 Ga. 23, 25 (31 S. E. 755).
2. If, after such judgment setting apart a year’s support, the widow receives and uses all the property and continues to use the realty for two or three years for support of herself and children without paying the debts, and the creditors obtain judgments against the estate, and cause levies to be made on the realty, and thereafter the widow again in behalf of herself and children applies for a year’s support to be set apart to them out of what remains of the property, on the assumption that the judgment setting apart the first year’s support was void, a judgment refusing to enjoin sale of the realty until a second year’s support is set apart will not be reversed.
Judgment affirmed.
Concurrence Opinion
concurs specially. Hines, J., concurs in the result.
