130 Ga. 436 | Ga. | 1908
The record affirmatively discloses that at the time the twelve months’ support was set aside, there was no administration upon the estate of the decedent. It is not alleged in the present case that citation was not published as provided by law. The contention is, that the record of the court of ordinary setting aside the twelve months’ support fails to disclose on its face, either by entry or recital, that citation was in fact published; and that because of such omission, the judgment of the ordinary allowing a twelve months’ support to the widow and minor children is void.
We are cited by counsel for plaintiff in error to the case of Fischesser v. Thompson, 45 Ga. 459, as supporting a -different conclusion. The decision in that case was 'by a divided court, two judges concurring and one dissenting. In that case there was an executor, and the record assigning a twelve months’ support failed to recite that the executor was notified. It was there held that the judgment of twelve months’ support was. void as against a judgment creditor of the decedent who had no notice of the widow’s application, through the legal representative of the estate or other
3. There can be no doubt that a year’s support may be set apart in a bond for title. A bond for title is a chose in action. Fulcher v. Daniel, 80 Ga. 75. A year’s support may be assigned in a chose in action. Civil Code, §5022. Whatever interest Lunsford had in the bond for title passed to his widow and children, when set apart to them as a jrear’s support, and thereafter was not subject to administration. Civil Code, §5022. It is immaterial to the administrator whether the return of the appraisers vests in the children a specific interest measured by money, in the bond for titles, or whether it is an assignment of a certain amount of money to be a charge upon the specific property. Nor is it any concern of his whether Spoffbrd would be protected in making a title to the widow or her assignee without seeing that the amount awarded to the children had been first paid. As to the administrator these various matters are res inter alios acta, and would probably be satisfactorily disposed of by the parties concerned. There was no error in sustaining the demurrer.
Judgment affirmed.