Miller v. Miller , 105 Ga. 305 ( 1898 )

Simmons, O. J.

1. Under the facts of the present case, there was no error in overruling the objections to the report o£ the auditor. Plaintiffs in error claim that the land conveyed by Miller to his three wards was worth much more than the amount which he received for it, and that the excess of this value should be treated, in the distribution of Miller’s estate, as an advancement to the wards, children by his second wife. We think it can not be so treated. The transaction which he, as guardian, entered into with himself as an individual, with the approval of the ordinary, ivas in the nature of a bargain and sale. He was willing as an individual to sell to himself as guardian the three-fifths interest in the land for the amount of money which belonged to his wards. If the three-fifths undivided interest was worth more than he agreed to take for it, he must have known it and must at that time have been willing, for the $1,146.21, to put in his wards the title to this interest. If he were living and the wards had sued him for the land, he would be estopped from setting up the fact that the land was worth more than he received for it. If he could not himself legally set up such a claim, his children by his first wife can not ;do so, although, after the conveyance had been made to himself as guardian, he may have made declarations to the effect that he intended the excess in value of the land as an advancement to his wards, and although he alleged in his petition to the ordinary that he intended to give the other two-fifths undivided interest in the land to his two children by his first wife so as to make them equal to the three by his second wife.

2. The above being true, there was no error in excluding testimony to the effect that Miller had said upon divers occa- : sions that he intended the excess in the value of the land as an advancement, and that he had made other declarations tend- • ing to show that he intended to give his other children (those ■by his first wife) the other two-fifths interest so as to make them equal to the others. The petition to the ordinary and the deed made in pursuance thereof, in which there was no reservation of this sort, would, as.before remarked, .estop him and his privies from making any such claim to the excess in the value of the land over the amount he received for it.

3. When Miller died, his widow applied for and had set ápart a year’s support for herself and minor child. When a year’s support is thus set apart, the title to the property vests-at once in the widow and minor child and can not be administered as the estate of the deceased husband and father. Civil Code, § 3468. If it be set apart for them jointly, they own it in common. If set aside separately, a certain amount to each,, what is set aside to the widow vests in her and what is set aside-to the child vests in the child. It does not appear from the-record whether this year’s support was set apart jointly or severally to the widow and child, nor does it matter so far as the-present case is concerned. In neither event would the child’s, share revert to the estate of the intestate upon the marriage of the child. If the year’s support was set aside to the widow and child j ointly, the widow is entitled to use and control it as long1 as the money lasts or as long as she lives, even though the child marry or become of age. The child, in such case, can not force a division of the property so set apart. Whitt v. Ketchum, 84 Ga. 128; Roberts v. Dickerson, 95 Ga. 727. If' a portion of the year’s support was set apart to the child separately, the title vested in the child, and the property does not revert to the estate of the father in the event of the child’s-marriage or death.

Judgment affirmed.

All the Justices concurring.