Jackson v. LeeJackson v. Lee
- Reporters:
- , ,
- Before:
- Atkinson
Concurrence Opinion
concurring specially. I concur in the judgment of affirmancе. 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 authоrities cited. Moreover, there was no plat of the land filed with the report of the appraisers, as required by thе act of 1918 (Ga. Laws 1918, p. 122). It does not appear from thе judgment that all of the land of the ‘deceased husband was sеt 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 *823say that tlie judgment is binding against the widow, since the judgment was rendered in her behalf, and she is therefore estopped from repudiating it. Hendrix v. Causey, 148 Ga. 164 (96 S. E. 180); Seeland v. Denton Realty Corporation, 148 Ga. 628 (97 S. E. 681), and authorities cited; Warner v. Hill, 153 Ga. 510 (1 a) (112 S. E. 478); Bridges v. Brady, 158 Ga. 886 (5) (124 S. E. 699); Bush v. Clemons, supra, and .authorities cited.
Lead Opinion
1. If within one year after a man dies his widow and
minor children аpply to the court of ordinary for the setting apart of a statutory year’s support under the Civil Code (1910), §§ 4041 et seq., out оf 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 dоllars which the said widow has selected to take as follows,” designating several parcels of land valued at $6,345, and sеveral 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 estatе secured and unsecured, which amounts to approximаtely $5,2-75.00 from the information furnished us, but which may be more; we also sеt apart all of the household and kitchen furniture owned by dеceased for the use of said widow and children;” and if aftеr such return is made citation is issued and advertised as provided by law, and afterward judgment is duly rendered by -the ordinary confirming the rеport and admitting it to record, to which no appeal is taken, such judgment is not void on the ground that the property hаs been set apart subject to existing debts of the decеased, or on the ground that the appraisers have nоt 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 recеives 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 judgmеnts against the estate, and cause levies to be madе on the realty, and thereafter the widow again in behalf of herself and children applies for a year’s suppоrt to be set apart to them out of what remains of the рroperty, on the assumption that the judgment setting apart thе first year’s support was void, a judgment refusing to enjoin sale оf the realty until a second year’s support is set apart will not be reversed.
Judgment affirmed.
All the Justices concur, eoscepl Bussell, G. J., dissenting.
Concurrence Opinion
concurs specially. Hines, J., concurs in the result.