Seeland v. Denton Realty Corp. , 148 Ga. 628 ( 1918 )

Beck, P. J.

(After stating the foregoing facts.) The contentions made by the parties raise the question of whether it was competent for the court of ordinary to allow the amendment to the original return of the appraisers, and whether or not the minor children of J. H. Thompson, for whose benefit the year’s support had been set apart in the first instance, were bound by the judgment of the court allowing the amendment.

We do not think the return of the appraisers which was made the judgment of the court of ordinary, so far as it relates to this land, entirely void. The return of the appraisers, in part, is as follows: “We, the undersigned, appointed . . to assess and set apart a sum necessary for the support and maintenance of the widow and minor children of J. H. Thompson, deceased, for the space of twelve months, either in money or such property as the widow may select, do report that we have assessed and set apart, as being necessary for the support and maintenance of the said widow and minor children, the sum of .seventeen hundred and fifty-nine dollars, which the said widow has agreed to take as follows:" Then follows the enumeration of certain personal property, then a general recital of household furniture not enumerated, and then the statement of other property set apart, and its value, .which includes “1 lot of land No. 202, $490.00,” and then the -enumeration of certain other lots of land; the.report being signed by the appraisers. At the August term, 1901, of the court of ordinary this report was so amended as to make the description of lot No. 202 more definite. This was done upon the application of the widow acting for herself and the minor children. As we have said, we do not think the report as it stood was entirely void for indefiniteness of the description of the lot of land. Nor do we think that the children could raise that question in this case, inasmuch as they were virtually the petitioners in the application for the amendment of the description of the property which rendered that description definite and certain. Service of proceedings upon them was not necessary. This ruling, which is controlling upon the-main question in this case, requires no elaboration, as in a recent case before this court a decision was rendered controlling upon the question stated. In the case of Hendrix v. Causey, 148 Ga. 164 (96 S. E. 180), it was said:- “In a proceeding to set apart a year’s support for a widow and minor children out of the property of the deceased husband, the widow may act for the minor children as well as herself. Civil Code, § 4041; Ferris v. Van Ingen, 110 Ga. 102 (7), 118 (35 S. E. 347). In such case the -minor children are as plaintiffs, and the judgment obtained is in /their behalf.- The notice required by law of an application for .year’s support and the return of the appraisers is for the benefit of persons whose interests are adversely affected by the judgment, and not for the widow and minors, for whose benefit the judgment is rendered. Neither the widow nor the minor children can complain that others do not have proper notice of the proceedings. See Galloway v. Vestal, 135 Ga. 707-711 (70 S. E. 589). The plaintiff in this case was one of the minors for whose benefit the year’s support was set apart. The title to the property set aside was in the widow and'minor children from the time the return of the appraisers was made to the court of ordinary. Civil Code, §§ 4043, 4044; Doyle v. Martin, 61 Ga. 410; Stringfellow v. Stringfellow, 112 Ga. 494 (3 a), 496 (37 S. E. 767). Compare Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488 (77 S. E. 589). The widow can lawfully sell property so set apart when necessary for the support of the family. Gleghorn v. Johnson, 69 Ga. 369; Allen v. Lindsey, 113 Ga. 521 (38 S. E. 975). The court therefore properly admitted the evidence, the effect of which was to show title out of the widow and children and to effectually prevent a recovery of the land from the purchaser from the widow by any one of them.” Under this ruling it is not necessary to enter upon a discussion of the question as to whether or not the amendment to the original return of the appraisers might have been made so as to affect the rights of third parties, though it would seem that this might be done unless the original return of the appraisers to set aside the year’s support now in controversy was entirely void. Touching this question of amendment see the case of Redding v. Lennon, 112 Ga. 491 (37 S. E. 711); and numerous other eases from other jurisdictions might be cited on this point, but it is deemed unnecessary in view of the ruling above.

The sale by the widow of the property to the predecessor in title of the defendant divested the children of any title or interest in the land, and they could not recover as against the defendant in this action. Consequently the verdict directed by the court in favor of the defendant was required. And though certain of the evidence objected to might have been irrelevant and immaterial, its exclusion could not affect the result. •

- Judgment affirmed.

All the Justices concur.