Bridges v. Barbree , 127 Ga. 679 ( 1907 )

Beck, J.

(After stating the facts.) 1-3. The principles •stated in -the first three headnotes are established law. They are merely a restatement of decisions by this court in cases where the issues were the same.as those presented by the record in the present •case. It is not alleged in the petition that the widow, who had remarried, proposed or intended to use the proceeds arising from the sale of the lands, for any purposes other than those contemplated by the statute creating the right to a year’s support for the family of a decedent; and in the absence of such an allegation there is no presumption that any improper or illegal use was intended or proposed. In the case of Vandigrift v. Potts, 72 Ga. 665, -it was made affirmatively to appear that the land which had been set apart as a year’s support for the widow and minor child was sold by the former after her second marriage, and the proceeds invested in other lands, the title to the latter being taken in the name, of the second husband and his wife; and it was held that “the sale was not good;” but it was not held in the Vandigrift case, nor in any other case, that, even after she marries again, the widow may not sell the property set apart, in order to derive from it means of support and maintenance. In the case of Swain v. Stewart, 98 Ga. 366, it was decided that, “The right -to a year’s support being a vested right to her as an individual, her second marriage would not deprive her of this right. ‘"Whenever a right by law has attached by reason of widowhood, there must be some law by which "it is divested, or it will remain/” In that case the sale was made by the widow after her second marriage, partly to raise money to pay a fine, so as to obtain her discharge from custody, and partly in consideration of supplies furnished for herself and child; and it was held that the sale was lawful and passed a good title to the purchaser. In the ease of Miller v. Miller, 105 Ga. 305, it was said by Chief Justice Simmons, who delivered the opinion: “If the year’s support was set aside to the widow and child jointly, the widow is entitled to use and control it as long 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.” See also Boozer v. Nash, 120 Ga. 406, and cit.

4. Whether or not the plaintiff in the present case, having become of age and married after the setting apart of the year’s support, still had rights and equities in the land embraced in the year’s support, it is not necessary to decide here. Even if her rights and equities were affected by the deed which she seeks to have canceled on the ground that its execution was jirocured by fraud, she has not put herself in a position entitling her to a decree annulling that instrument. Before she would be entitled to such a decree in a court of equity, she must tender or offer to repay the money which had been paid to her or deposited with her by the grantee in that deed; and no tender or offer to repay is pleaded. Certainly the mere recital in the petition of petitioner’s "agreeing to return to him [the defendant] the deposit of $240, made by said Bridges,” can not be treated as an allegation of a valid tender. Miller v. Cotten, 5 Ga. 341.

Judgment reversed.

All the Justices concur, except Fish, G..J., absent.