139 Ga. 693 | Ga. | 1913
The right to a second year’s support allowed to a widow out of the estate of her deceased husband is a statutory right, and can be obtained only by conforming to the condition' of the statute. The Civil Code, § 4041, provides for the setting apart of a year’s support to a widow, or to a widow and minor child or children, or to a minor child or children only, and is ranked among the expenses of administration, to be preferred before all debts other than the exceptions made in sections 4048 to 4050, inclusive. By section^ 4043 a second year’s support may be had by the widow, provided she comes within the terms of that statute. One of the prerequisites is, that “there are no debts to pay.” It becomes material to inquire, therefore, whether there are “debts to pay” in this ease. The evidence shows that the widow herself has filed suits against the estate, amounting to several thousand dollars, for money claimed to be due her by the estate. It can not be held, at least at the instance of one asserting herself to be a creditor of the estate, that under these circumstances there are “no debts to pay.” It certainly was not the intention cf the statute to allow the widow, or widow and minor child or children, or minor child and children only, while there is pending litigation against the estate, by repeated applications year after* year, to exhaust the estate and thus defeat the purpose of the
But it is insisted that under the ruling in the case of Woodbridge v. Woodbridge, 70 Ga. 733, although there are debts to pay, if there is still enough left over of the estate to supply the widow’s wants, she should be paid her second year’s support. The argument is, that the question at last is between the widow and the creditors of the estate. This view leaves entirely out of consideration legatees and remaindermen under the will, who certainly have rights—to say nothing of the testator’s intention. If no one were interested but the widow and the creditors of the estate,- this position might
Judgment affirmed.