28 Ga. App. 598 | Ga. Ct. App. | 1922
This was an application made to the court of ordinary by a widow, to have a year’s support set apart for her from her husband’s estate. Appraisers were appointed by the ordinary according to the statute, and a-return of their acts as appraisers was only made by them to the court of ordinary. The administrator of the estate out of which the year’s support was applied for filed, in the court of ordinary, written objections to the return of the appraisers, based upon two grounds: first, that the applicant had previously filed in that court an application for a year’s support to be set apart to her out of her deceased husband’s estate, and, after the appraisers had been duly appointed and had set aside to her a year’s support in terms of the law, she withdrew
The judgment of the superior court excluding from the evidence the return of the appraisers, on the ground stated in the objection, must be sustained. Section 4043 of the Civil Code (1910), relating to the return of appraisers appointed to set aside a year’s support, as amended by the act of 1918, approved August 19 (Ga. L. 1918, p. 122), specifically provides that a careful plat shall be made, where lands are set apart in such report, and recorded as a part of the appraisers’ return. This amendment of 1918 makes it the duty of the appraisers, where any lands shall be included in the property set apart and assigned as a year’s support, to describe those lands fully and accurate^, and make a plat thereof, and they have it in their power to procure for this purpose the aid of the county surveyor, or another competent surveyor, who shall be required to make a careful plat of the land so set apart, which
The question as to payment of costs of the former proceeding before renewing the application for a year’s support was not passed upon except inferentially. The judge of the superior court did, as a matter of fact, consider the proceedings without ruling on this question, so far as the record shows, and based his judgment of nonsuit solely on the ground that there was no compliance with the requirements of the law in reference to the description and a plat of the land which was set apart as a part of the year’s support.
The decision of this court may not be technically correct, but the court is of the opinion that no mere techical rule should prevent a widow from having a year’s support properly and legally set aside for her out of her husband’s estate, and that the statute of this State, liberally construed to carry out the purposes of the law in behalf of the widow, requires that the court of ordinary, both in a ministerial and a judicial capacity, shall see to it that her rights are fully protected, and on appeal to the superior court the judge of the superior court is charged with the same duties. In the present proceeding the widow was entitled to have a .year’s support set apart to her. The appraisers 'had failed to do their duty in making a description and plat of the real estate which their return showed had been set apart by them as a part of the year’s support. They had failed to make, as a part of their return, a definite and accurate description of the land set apart, with a plat of the land. This defect in the return could have been met by an amendment to the return. This amendment could be made only by the appraisers. The trial judge should have required that the return be amended in the particulars mentioned; which would have perfected the return and secured to the widow her rights under the statutes. To deprive her of this right by a judgment of nonsuit as to her application to have a year’s support set aside to her was, we think, a violation certainly of the spirit and purpose of the law, whatever may have been the technical questions involved.
Judgment reversed.