Miller v. Ennis , 1899 Ga. LEXIS 118 ( 1899 )

Little, J.

The only point which arisesin the caséis, whether, after a year’s support in money has been set aside to a widow and minor child, such minor, who voluntarily removes from the residence of her mother and relinquishes further care and support by her, can recover for her own separate use any part of the sum set apart as a year’s support for the widow and minor child. We think hot. The support of the widow and minor child of a decedent is one of the highest charges against his estate. The period for which this support shall be continued is one year, unless the estate is to be kept together for a longer time than twelve months, and there are no debts to pay. An adult child is not entitled to a year’s support out of his father’s estate. The object of the statute is, to afford to those who are dependent upon the husband and father provision for at least one year after his death. This right of support inures to the widow alone if there are no minor children, and to the minor children alone if there is no widow. Civil Code, § 3465. Further, if there are two sets of minor children by different wives, the portion going to the children of the deceased wife shall be specified by the appraisers. Civil Code, §3470. Under the provisions made for a year’s support, it is not the object and intention of the law to divide the estate of the decedent among his widow and children, but out of the estate of the husband .and father must first come a provision by which the dependent and helpless will at least be provided for during a limited period. The amount set aside to a widow and her minor child is in gross, and no specific portion can justly be claimed by either the widow or the child; they are alike entitled to a support out ■of the fund. It is provided by our Civil Code, §3468, that property so set apart by the appraisers shall vest in the widow and child or children. In case there are children only, and no widow, then the provision of the same section vests the property set aside in such children, share and share alike. This distinction is significant as showing that in the case of a widow .and child the use of the entire property is a joint one, that out ■of it both are to be supported, and neither one to the exclusion •of the other. But in the case of children where there is no widow — no natural guardian of the children who could be depended upon to disburse the fund so as to accomplish the purposes of the law, — the beneficiaries who are to be supported share this fund in equal proportions; but the lawmakers have refrained from providing that the property set aside shall be used as a support for the widow and minor children, share and share alike. In the case of Roberts v. Dickerson, 95 Ga. 727, land was set apart as a portion of a year’s support to a widow and one minor child. This court held in that case, that where such minor child died after reaching his majority, his administrator could not, while the mother remained upon the land using it for the purpose of a support, sell or otherwise administer an undivided one-half of the land as the estate of the son. In delivering the opinion in that case, Mr. Justice Lumpkin said that the son’s administrator could not break up or destroy the mother’s use and enjoyment of the land as a year’s support, so long as she remained upon it. In the case of Whitt v. Ketchum, 84 Ga. 128, Chief Justice Bleckley, in delivering the opinion of the court, said, “The support contemplated by section 2571 [3465] of the code is that of the widow and minor-children for twelve months. But if the allowance be set apart, not severally to each member, but to the family as a whole, and all of it is not consumed, we think the residue, whether in money or in property, stands over to be used afterwards by the widow and such of the children as continue minors, until there is no longer either widow or minor in the family.” See also-Miller v. Miller, 105 Ga. 305. .The rulings made in these cases, in our judgment, dispose of the question made adversely to the plaintiff in error; and the judgment of the court below is Affirmed.

A U the Justices concurring.