McSwain v. Ricketson , 129 Ga. 176 ( 1907 )

Cobb, P. J.

(After stating the facts.)

1. Land may be set apart as a year’s support, and the effect of the judgment is to vest the widow with such title or interest in the land that she may, in order to raise money for the purpose for which the year’s support is set aside, convey the same in her own mame, and divest all interest of herself and her minor children therein. The judgment setting apart the year’s support being, in effect, a conveyance to her of the interest of her deceased husband in the property, the description of the property must be such as to render it capable of identification. If the description is so vague and indefinite that the property can not be identified, the title to the estate is not divested by the judgment setting apart the year’s support. That certainty which is required in a deed, or other conveyance, is also required in a judgment setting apart a year’s support, certainly so far as land is concerned. If the judgment now in question had purported, on its face, to have set apart all of the property, or all of the lands, of the deceased, parol evidence would have been admissible to show what lands were owned bjr the deceased. But there is nothing in the judgment to indicate that it was the intention of the commissioners to set apart the entire estate. They dealt with the property intended to be covered by items, certain articles of personal property being designated, and then what purports to be a description of a tract of .land is inserted. The title to the estate is not divested unless this description is sufficient to identify the land. The only description is 175 acres, more or less, in a lot of a given number, in a given ■district. It does not appear, from the description, in what county the land is located, nor, so far as that is concerned, in what State. It might be inferred that it is in the State of Georgia; but can we infer that it was necessarily in Coffee county? The law does not requre that a year’s support should be set apart in the county in which the land is located. The year’s 'support is set apart in the county in which the decedent died, and the property set apart may be located in another county. And even if it be conceded that lot No. 49 in the 6th district of Coffee county was referred to, what portion of that lot is set apart? Even the number of acres is not definitely stated. The words of indefiniteness, “more or less,” are used. The shape of the tract is not.referred to, nor can it be by any implication arrived at. If the description had been a definite number of acres in a given corner of the lot, the land could have been identified. Payton v. McPhaul, 128 Ga. 510, 58 S. E. 50. The description of the land was so vague and indefinite that the judgment setting apart the j^ear’s support, so far as this item was -concerned, was absolutely void. Luttrell v. Whitehead, 121 Ga. 699, 49 S. E. 691; Lee v. English, 107 Ga. 152, 33 S. E. 39. -This case is distinguished from the case of Moore v. Moore, 126 Ga. 735, 55 S. E. 950, and the cases there followed, for the reason that the return of the appraisers did not purport to set apart the entire estate.

2. The children of Sarah lowers were not parties to the proceeding to eject her as an intruder-. They were not,her tenants; they did not claim under her. Their claim of title rests upon ownership by their father at the time of his death. They were not bound by the dispossessory proceedings against their mother. The sheriff has no authority to dispossess them under that proceeding.

3. The judgment setting apart the year’s support not having the effect to divest the title of the heirs, the transactions entered into by the mother, in which she dealt with the same as if she had acquired title in the proceeding setting apart the year’s support, did not estop the heirs from asserting their title to the property, unless it appears that they have received some benefit from the transactions which she has entered into, with a full knowledge of the fact that she was dealing with their property. While there is evidence to indicate that the mother was looking after the interests of the minor children and seeking to acquire a more desirable home, it does not definitely appear that the minor children have received, directly or indirectly, any benefit from these transactions. Nor does it appear that the adult heirs have received any benefit therefrom. The evidence was not sufficient to make out a case of estoppel either against the adult heirs or the minor children. The facts as developed at the final hearing may show-a different condition of affairs; but so far as indicated by the present record, there was no estoppel upon any of the plaintiffs as to their right to assert their title as heirs at law to the land in controversy. There was a conflict of the evidence as to whether some of the adult heirs were in possession, but there was no dispute that the minor heirs were in possession of the property. They were rightfully in possession. J. J. Jowers has shown no right to dispossess them; and the judge should have granted the injunction as prayed for.

Judgment reversed.

All the Justices concur.