131 Ga. 126 | Ga. | 1908
(After stating the facts.)
But the allegation that the incumbrance on her property (and clearly that was what the pleader meant when he used the expression, “the transfer of her estate”) was without the approval of the ordinary was properly disallowed. Such an allegation was totally immaterial. We presume that,- in offering the amendment last referred to, counsel for petitioner had in view the provision of the Civil Code, §3473, which provides, that, “When the whole of an estate is set apart as provided in section 3465, the widow may pay so much and such parts of the debts of her deceased husband as she may think proper, consistently with her means, with the advice and consent of the ordinary.” But the section just quoted does not contemplate a creatibn by the widow of such an incumbrance upon the estate set apart to her as a year’s support as the one which is attacked by the petition in this case. For the widow to make a payment of such parts of her deceased husband’s debts “as she may think proper” is one thing, and to create an incumbrance like the one in question here, covering her entire property and payable in the future, is another and quite different thing. And it was not necessary, in order for her to have the note and mort
Judgment reversed.