Griffin v. Wood , 196 Ga. 510 ( 1943 )

1. A judgment of the ordinary confirming and admitting to record the return of duly appointed appraisers, setting apart to a widow and minor children a year's support after proper application and proceedings under the Code, § 113-1002 et seq., consisting of described property, "subject to just debts owed by" the deceased husband and father, is not void on the ground that the property has been set apart subject to existing debts of the deceased. Jackson v. Lee, 161 Ga. 818 (131 S.E. 893).

2. A widow holding property set apart to her as a year's support, subject to an outstanding debt of her deceased husband, may convey the same to secure payment of the outstanding encumbrance and to prevent its foreclosure, and will be bound by such conveyance. Lunsford v. Kersey, 191 Ga. 738 (2) (13 S.E.2d 803).

3. The allegations of the petition showing that the widow, before the act of 1937 (Ga. L. 1937, p. 861), voluntarily conveyed to creditors of the decedent. in settlement of their just claims against the estate of the husband and father, the property set apart as a year's support, she was estopped to assert that as against her a valid title was not conveyed to such creditors. Accordingly the court did not err in sustaining the general demurrer and in dismissing the action.

Judgment affirmed. All the Justicesconcur.

No. 14605. SEPTEMBER 10, 1943. Mrs. J. T. Griffin in behalf of herself and five named children, filed against Henry Wood and Sam Wood (doing business as J. H. Wood Sons) a petition which alleged substantially the following: The husband of petitioner died on May 11, 1931. The widow filed in the court of ordinary an application for a year's support for herself and five minor children. The appointed appraisers filed their return setting apart to the applicants "the sum of twenty-five hundred dollars, less all just debts, which the said widow has selected to take as follows," designating several parcels of land valued at $1900, and several articles of personalty consisting of live stock, farm implements, and farm products valued at $540, which return stated that "we also set apart the following household and kitchen furniture, all the above land, stock, and property, subject to just debts owed by" the husband. It was alleged, that on January 9, 1932, the widow was induced by defendants, without any consideration, to sign a note for $1250, and a security deed conveying the property set apart as a year's support, to secure an indebtedness of the husband; that on July 3, 1933, the widow, being unable to pay off the encumbrance, was induced by the defendants to execute to them a warranty deed conveying the property set apart as a year's support, in payment of the note and security deed; that the warranty deed recited a consideration of $1500, but in fact there was no consideration; that petitioner knew nothing about law or business, and was told by defendants the property was set apart subject to the debts of her husband, and that as a matter of law the debt would have to be paid out of the property; that she was induced by fraud to sign the deed, defendants knowing at the time that the property set apart as a year's support was not subject to the debt; that the deeds are void, because they were given without any consideration, in payment of a debt of petitioner's husband, and were obtained by fraud. Copies of the proceedings for year's support, and of the deeds, were attached as exhibits to the petition.

While the widow brought the suit in behalf of herself and the children, the petition does not allege that the children were minors on the date the suit was filed, or that they were minors on July 3, 1933, when the widow was alleged to have been induced to execute the warranty deed. Nor does the petition allege that the widow was bringing the suit as guardian or trustee for the children. The plaintiff prayed, that the deeds be canceled as a cloud upon their title; that title to the property be decreed in petitioner and the children; and for mesne profits and general relief.

The only exception is by the widow individually to an order sustaining a general demurrer and dismissing the action. No question as to rights of the children is presented.