26 S.E.2d 711 | Ga. | 1943
Lead Opinion
1. An application for a year's support under the Code, § 113-1002, is a suit as contemplated by § 3-704, which prescribes a limitation of twenty years for the bringing of suits there referred to.
2. A year's support under § 113-1002 is a statutory right, and an application therefor must be filed within twenty years from the date the right accrues.
3. The right to a year's support accrues upon the death of the husband or parent, and not upon the qualification of the legal representative of the estate. The twenty-year limitation period is computed from the date the right accrues, and not from the date the legal representative is qualified.
"2. If the answer to the first question is in the affirmative, is the twenty-year limitation to be computed (a) beginning from the date of the death of the husband, or (b) from the date of the qualification of a legal representative?"
1. The word "suits" as used in the Code, § 3-704, is a general term denoting any legal proceeding in a court. In re Oliver's Guardianship,
2. The next question requiring an answer is whether or not the right to a year's support is one "accruing to individuals under statutes . . or by operation of law," which renders an application therefor subject to the twenty-year limitation provided in § 3-704. This court has in numerous decisions attempted to define the rights embraced in the twenty-year limitation statute, supra. We will not now attempt to make a complete analysis of all such decisions, most of which were dealing with "acts of incorporation" found in the limitation statute. But it is thought that an examination of some of them, although they were not dealing with the right to a year's support, will aid in arriving at a proper conclusion on the questions now presented. In Harris v. Smith,
Savannah Canal Co. v. Shuman,
In Bigby v. Douglas,
In Williams v. Clemons,
Another decision frequently cited is Anderson v. Anderson, 23 F.2d 331. The statute on which the suit there against the directors of a national bank was based rendered the directors liable for knowingly violating the banking law; and the opinion pointed out that there was no evidence to show knowledge on the part of the directors, and hence no case under the statute was made. Having thus shown that no case was made under the statute, the court proceeded upon a discussion of § 3-704, and in the opinion it was said that this section "applies to cases in which there is a special liability created by a special charter or statute, as instanced in numerous cases in the early Georgia Reports. The distinction to be observed is pointed out inSavannah Canal Co. v. Shuman,
One important feature of § 3-704 pointed out in the decisions thus far considered is that it refers to statutes, etc., that confer rights upon specified individuals or a designated class of individuals, and not upon the general public as a whole. In the discussion many theories were thoroughly considered and rejected by the majority of the court, and some of these were relied upon in the dissenting opinion. It is thought that the views of the majority on some of those matters should be here set forth. It is remembered that the Court of Appeals sought clarification of the questions involved in this case; and it is important to the general public that a question of this nature should not be left in a cloud of confusion and uncertainty. The dissenting opinion directs attention to the act of 1856 (Ga. L. 1855-56, p. 233), from section 12 of which act the present Code § 3-704 was codified; and after observing that sec. 13 of that act specifies an application for dower and fixes a limitation of seven years thereon, and that sec. 12 failed to specify an *153
application for a year's support, it is, and we think illogically, deduced therefrom that it was not the legislative intent that an application for a year's support be subject to the twenty-year limitation fixed in sec. 12. The act of 1856 contains forty-two sections; and it was there sought to provide a limitation of time to apply to every suit at law in this State. The caption of the act in part declares: "An act limiting the time in which suits in the courts of law in this State must be brought." It is provided in sec. 41 of the act that all laws limiting the time in which suits are to be brought in the courts of law in this State be and the same are repealed. Sec. 13 of the act is but a re-enactment of an act approved December 21, 1839 (Ga. L. 1839, p. 145). In view of the repealing provision in sec. 41, it was necessary, if the seven-year limitation was to be retained on an application for dower, to re-enact, as was done in sec. 13. By the previous enactment the legislature had signified a desire, for reasons satisfactory to it, that the limitation of seven years be applicable to such an application. There had been no such previous legislative expression relatively to an application for year's support. Hence we think that there are no circumstances connected with these provisions authorizing a conclusion that the legislature signified an intent that sec. 12 should not mean what it says, thus excluding an application for year's support. But if the theory of the dissenting opinion, to the effect that since sec. 12 does not specify a year's support it is not embraced therein, be correct, then we are forced to the conclusion that such an application is embraced in sec. 18 of the same act, which provides as follows: "All other suits to which any person may be entitled in the courts of law in this State for the enforcement of rights or redress of wrongs, not otherwise, and not herein before provided for, shall be brought within four years after the right of action accrues, and not after." It is clear from the dissenting opinion that the Justices concurring therein were of the opinion that no limitation of time was placed on an application for a year's support; for that opinion cites 34 C. J. S. 54, 66, §§ 347, 354, which declares that unless the law fixes a time limitation within which such application must be brought, it is not barred by mere lapse of time; and that opinion also gives approval to the statement in Federal Land Bank v.Henson,
We think that the decisions in Pare v. Mahone,
The dissenting opinion asserts that some of the decisions therein referred to were rendered when the court was very much closer to the time and the circumstances of this enactment than we are today; and special attention is called to Harris v.Smith,
But it is contended by the applicant for the year's support that the decision of this court in Federal Land Bank v.Henson,
We do not think that the decision in Mosely v. Mosely, 67 Ga. *158 92, involving a suit for divorce, has any application in the present case; for it was there pointed out that contracts of marriage are different from other contracts, that the general public has an interest in matters of marriage and divorce, and for these reasons the twenty-year statute would not bar the right to divorce. The decisions fall short of clearly distinguishing between the rights embraced in § 3-704 and all other rights; but we have no hesitancy in holding that the right to a year's support, which exists only by virtue of a statute and is conferred upon a designated class, is one accruing to the individual under a statute; and hence an application therefor must be made within twenty years after the right has accrued.
3. Having held that the twenty-year limitation statute applies to an application for a year's support, the next question is whether the right to a year's support accrues upon the death or the administration. According to the statute (Code § 113-1002), the right to a year's support accrues upon the death of the one leaving a widow, or a widow and minor child or children, or minor child or children only; for it is there stated that "upon the death of any person . . leaving a widow or a widow and minor child or children, or minor child or children only, it shall be the duty of the ordinary, on the application of the widow, or the guardian of the child or children, or any person in their behalf, on notice to the representative of the estate (if there is one, and if none, without notice) to appoint five discreet appraisers; and it shall be the duty of such appraisers, or a majority of them, to set apart and assign to such widow and children, or children only, either in property or money, a sufficiency from the estate for their support and maintenance for the space of 12 months from the date of administration, in case there is administration on the estate." It thus seems plain that the right to a year's support accrues "upon the death of the husband or parent." See Brown v. Joiner,
But it is contended by counsel that since the statute expressly states that the amount set apart must be sufficient for the support and maintenance for the space of twelve months from the date of the administration, it is thereby implied that the right accrues upon the qualification of the legal representative of the estate. This contention, however, encounters at the outset the clear implications of the statute wherein it is provided, that, if there be no representative of the estate, application may be made without notice, and the further language which immediately follows that relied upon by counsel, "in case there is administration on the estate." A careful reading of the entire statute shows that the procurement of the year's support is not dependent upon an administration of the estate. The manifest purpose of the law is to insure a support for the dependents during the twelve-months period immediately following the qualification of the legal representative of the estate, during which entire time he is not subject to suit and can not be required to pay out any of the assets of the estate. If the dependents obtain this support at the time when the statute gives them the right to apply therefor, it makes no difference when the legal representative qualifies. Having this support in hand, it is available for their maintenance during the twelve-months period when the legal representative is not subject to suit and can not be required to pay out any of the assets of the estate. Since the right to the year's support accrues upon the death of the husband or parent, and not upon the qualification of the legal representative of the estate, the limitation statute begins to run from the time of the death of the husband or parent, and not from the qualification of the legal representative.
We are here dealing with Code § 113-1002, and our ruling that the twenty-year limitation period begins to run at the death of the *160 husband or parent refers solely to the year's support there provided for. To contend that our ruling nullifies § 113-1004 as to all years that are twenty or more years subsequent to such death is to distort language and give it a meaning which it will not bear, and also is to ignore the rule of law universally recognized that any limitation of action period begins to run when and only when the right to institute the action accrues. Obviously it would be utterly impossible when death occurs to look into the unknown and unknowable future and ascertain with certainty the number of future years during which the estate will be held together and during which there will be no debts against the estate, and to know that during such future years the persons entitled to a year's support at death will be in life, or that any of such persons will be living when such future years arrive. The further solid fact that refutes any such contention is that the support authorized by law is one for each of the subsequent years, and the beneficiaries are not entitled to it, and hence not entitled to institute an action to obtain it until the arrival of a year for which it is sought. It follows that the twenty-year limitation period applicable to an application for support for each of the subsequent years begins to run only when such subsequent year for which the support is claimed arrives.
The questions propounded by the Court of Appeals do not involve successive years' support under the Code, § 113-1004; and whether or not such successive years' support there authorized may be successfully claimed when no first year's support has been obtained, our present ruling does not mean that the applicant in this case may not be entitled to support under that section, provided the application therefor is made within twenty years from the beginning of the year for which the support is claimed. Question 1 is answered in the affirmative, and the answer to question 2 is that the twenty-year period is to be computed beginning at the death of the husband or parent, and not from the date of the qualification of the legal representative.
All the Justices concur, except Bell, P. J., and Grice, J.,who dissent.
Addendum
It is declared in the Code, § 3-704, that "All suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law, shall be brought within 20 years after the right of action shall have *161
accrued." Is an application of a widow for a year's support subject to the limitation stated in this section? This question has been answered by the majority in the affirmative. I think it should be answered in the negative, for several reasons. The section by its terms applies only to rights "accruing to individuals," and accordingly it has been construed as applying only to "cases where the liability thus created is in favor of an individual, or a class to which he belongs, as distinguished from one arising under the general law in favor of the public at large." Bigby v. Douglas,
In Harris v. Smith,
In Bigby v. Douglas, supra, the court, after quoting from the decision in the Harris case, said: "In other words, the General Assembly had in contemplation rights conferred by law upon particular individuals, and not upon the general public, because they sustained a peculiar relation to the incorporators of certain chartered institutions or were by special enactment given privileges in return for services to be performed by them for the benefit of the public, or were for some other reason entitled to enforce rights which they did not share in common with their fellow-citizens. The rights referred to were such as could be asserted by certain persons, not in their capacity as members of the public who came within the protection of a general law, but as particular `individuals' who were by special enactment expressly designated by name, or who belonged to a designated class to the members of which, but to none others, such rights accrue `under statutes, acts of incorporation, or by operation of law.' With these strictly personal rights the public at large has no concern. To rights which are conferred by law upon members of the public at large, section 3766 [Code of 1910, § 4360, Code of 1933, § 3-704] has no application. That this is true was recognized in the case of Savannah Canal Co. v.Shuman,
In an opinion delivered by Judge Sibley in Anderson v.
Anderson, 23 F.2d 331, affirmed as Anderson v. Pennington, 28 F.2d 1007, it was said of this section: "That applies to cases in which there is a special liability created by a special charter or statute, as instanced in numerous cases in the early Georgia reports. The distinction to be observed is pointed out inSavannah Canal Co. v. Shuman,
It has frequently been stated that the law relating to a year's support is a part of the statute of distributions.Farris v. Battle,
In Peavy v. Turner,
Although the right to a year's support is the highest claim against the estate of a decedent, and the "ordinary law of distributions" does not become applicable until after such year's support and other obligations of the estate are satisfied (Edwards v. Addison,
In the opinion in the instant case, however, the court, in discussing Bigby v. Douglas, supra, has said: "Conceding that the right of the surety to obtain contribution from his cosureties as prescribed by the Code is of common-law origin, this fact would not be sufficient to prevent it from being a right accruing to a class of individuals by operation of law." I do not think the words "by operation of law" can be given any such meaning. If the court is correct in this statement, then it would seem there is no right that would not fall within the Code, § 3-704; for every right accrues in some way under statute or common law.
Referring specifically to a claim for a year's support, the following rulings were made in Federal Land Bank of Columbia v.Henson,
In other jurisdictions, it seems to be the view that unless the law fixes some time limit within which such an application must be made, it is not barred by mere lapse of time, and that general statutes of limitations are not applicable. 34 C. J. S. 54, 66, §§ 347, 354.
The provisions of section 3-704 were enacted in 1836, as part of a general statute of limitations covering numerous actions. Ga. Laws 1855-6, p. 233. The provisions were contained in section 12 of that act, and were followed immediately by a section relating to dower. In other words, the exact setting was as follows: "Sec. XII. All suits for the enforcement of rights accruing to individuals under statutes, acts of incorporation, or by operation of law, shall be brought within twenty years after the right of action accrues, and not after. Sec. XIII. That when any widow shall be entitled to dower, application for the assignment of such dower shall be made by said widow within seven years from the time such right to dower accrued, and not after." Somewhere in the same connection would have been a very suitable place to mention year's support, if the legislature had intended to bring it within section 12 of this act; and why specifically mention dower, and not year's support? Did not mention of the one impliedly exclude the other?
Some of the decisions referred to above were rendered when the court was very much closer to the time and circumstances of this enactment than we are to-day. This is especially true of Pare v. Mahone (1861), and Harris v. Smith (1881), from which I have quoted. Seemingly, therefore, the court was in better position to *167 apply the rule, that, "In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy." Code, § 102-102 (9). And it is worthy of note that inHarris v. Smith, supra, the court did apply this rule, although it was not specifically mentioned. In the circumstances, it seems to the writer that a mere intimation in the older decisions should be given considerable weight, as to the meaning of this statute.
It might be asked what if any right the widow would have to a year's support if this particular statute (Code, § 113-1002 and cognate statutes) had never been enacted, or should be repealed. Candidly, it must be said that she would not have any right to a year's support; but it does not follow that the claim for year's support is one accruing under statute or by operation of law under the Code, § 3-704. It would simply mean that there would be no statute under which it could be asserted that the relationship and the other pertinent facts gave the right to a year's support, and would not mean that the statute itself must be considered as the foundation of the action.
The first question propounded by the Court of Appeals merely asks whether the twenty-year statute of limitations as provided in the Code, § 3-704, is applicable, and does not inquire whether any other statute would be applicable, and therefore the discussion might properly end at this point; but it may not be amiss to observe that it would not be an anomaly if no statute of limitations whatever should be applicable to a claim for a year's support. There are still other rights which have not as yet been covered by any such statute. Compare Kirkpatrick v. Faw,
In view of what has been said, I respectfully dissent from the answer to the first question; and in this view I must dissent also from what is stated in the answer to the second question. Justice Grice directs me to say that he concurs in this dissent.