Federal Land Bank of Columbia v. Henson , 166 Ga. 857 ( 1928 )

Atkinson, J.

1. The Civil Code (1910), § 3931, provides rules to determine “who are the heirs at law of a deceased person.” The third rule is: “If there are children, or those representing deceased children, the wife shall have a child’s part, unless the shares exceed five in number, in which case the wife shall have one-fifth part of the estate. If the wife elects to take her dower, she has no further interest in the realty.” The Civil Code (1910), § 5249, provides: “Dower may be barred . . By the election of the widow, within twelve months from the grant of letters testamentary or of administration on the husband’s estate, to take a child’s part of the real estate in lieu of dower.” The foregoing provisions are to be construed together. When so construed as applicable to a case where an intestate has left a widow and child or children and an estate in realty, the widow is entitled, in distribution of the estate, to share in the realty with the child or children, provided within one year from the grant of letters of administration she elects to take a child’s part in lieu of dower. Farmers Banking Co. v. Key, 112 Ga. 301 (37 S. E. 447); LaGrange Mills v. Kener, 121 Ga. 429 ( 2) (49 S. E. 300), and eit.; Rountree v. Gaulden, 128 Ga. 737 (58 S. E. 346). The principle lias been recognized in Bird v. Dyke, 158 Ga. 81, 84, 85 (122 S. E. 595), and cit.

2. Where a widow is entitled to dower or to a child’s part in the real estate of her deceased husband, and she elects to take a child’s part in lieu of dower, her election may appear by writing' duly signed, filed, and recorded in the office of the ordinary, or it may appear by proof of circumstances sufficient to show that within the time allowed by law she affirmatively made election to take a child’s part. Rountree v. Gaulden, supra; Sewell v. Smith, 54 Ga. 567; Sloan v. Whitaker, 58 Ga. 319. The evidence in this case was sufficient to show prima facie that the tvidow elected to take a child’s part in the real estate left by her husband, within twelve months after grant of letters of administration, as required by law.

3. It is provided in the Civil Code (1910), § 4041, that among the necessary expenses of administration, and to be preferred before all other debts, except as otherwise provided, is the provision for the support of the family, to be ascertained in a manner therein specified. Under this law, if there are no minor children, the widow may obtain a. year’s support for herself. If there are minor -children, it is for their benefit as well as hers. There is nothing in the law which excludes her from taking a child’s part if she has a year’s support assigned to her. Cole v. Cole, 135 Ga. 19, 21 (68 S. E. 784).

4. Section 4041, supra, and the cognate sections do not provide a limit of time after the death of the husband within which an application for year’s support shall be made. Consequently mere lapse of time will not, as matter of law, bar the right to apply for the statutory year’s support.

5. Long lapse of time between the death of the husband and the widow’s application for year’s support may be considered by the ordinary in connection with other facts tending to show that the widow had received a support from the estate or had waived it expressly or impliedly. And in passing upon the application the ordinary should give weight to evidence as to such facts in determining the amount to be granted, or whether the application should be wholly refused. Riddle v. Shoupe, 147 Ga. 387 (94 S. E. 236), and cit.; Blassimgame v. Rose, 34 Ga. 418; Wells v. Wilder, 36 Ga. 194.

No. 6376. September 12, 1928.

6. A privy in estate to an heir of the deceased husband may in the court of ordinary contest with the widow her right to and the amount of a year’s support out of the estate of her deceased husband. Jones v. Cooner, 137 Ga. 681 (74 S. E. 51).

7. The evidence did not demand a finding that the defendant was estopped from asserting her right to a child’s part in the estate left by the deceased, or from prosecuting before the court of ordinary her application for a year’s support.

8. In the former decision of this case (Henson v. Federal Land Bank of Columbia, 162 Ga. 839, 134 S. E. 923), in referring to the deed from W. T. Rash to Fuller it was said: “This deed could not be set aside and cancelled without making Rash a party. It was material to her defense that the defendant should be allowed to attack the deed and have it canceled, and the general demurrer to the cross-action should not have been sustained.” This ruling must be construed as referring to the pleadings in the case as they then stood. The cancellation of the deed would have aided the defendant in establishing her defense wherein she denied that plaintiff was owner of the land. In this view it was material. But cancellation of the deed was not essential to the establishment of her right to a year’s support or a child’s part in the distribution of the estate, as those could not be defeated by existence of the deed.

9. Considering the issues as to all the grounds of relief as based on the pleadings of the respective parties as amended, the judge did not err in admitting testimony to the effect that, prior to a consummation of the sale to the plaintiff’s immediate predecessor, the defendant’s husband told the purchaser that he could not buy the property without the defendant’s assent, and the purchaser replied that “he could.”

10. The court did not err in admitting in evidence the record in the court of ordinary, relating to the appointment of the administrator upon the estate of the deceased husband, over the objection that it was irrelevant.

11. The remark of the court as referred to in the third special ground of the motion for new trial was not error in that it amounted to an expression of opinion upon the facts of the case.

12. The evidence was sufficient to support the verdict, and the judge did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur, except Bill, J., disqualified. J. G. B. Erwin, for plaintiff. J. M. Lang and T. A. Henderson, fox defendant.