Jackson v. Corbin , 39 Ga. 102 ( 1869 )

Warner, J.

The equity of the complainant’s bill in this case, is based on the following statement of facts: In 1861, Corbin obtained a judgment against Jackson. In 1868, Jackson sold a tract of land to Irvin for the sum of $ 1,600 00, the purchaser paying part of the purchase-money for the land, and giving his note to Jackson for $900 00, which is still due and unpaid. Jackson conveyed the land to Irvin by deed, with warranty of title. Jackson afterwards died, leaving his wife, the complainant, and four minor children, leaving no property besides the $900 00 note given by Irvin to him for the land. Shortly after Jackson’s death, Corbin had his execution levied upon the land to satisfy his judgment which bound the land, in the hands of Irvin, the purchaser from Jackson. The complainant, as the widow of Jackson, in behalf of herself and children, filed her bill, claiming a year’s support, under the provisions of the statute, out of the $900 00 note given for the land, alleging that if the land is sold under Corbin’s execution, Irvin will successfully defeat the collection of his note given for the land, which is the only property left by Jackson, and, by that means, she will be wholly deprived of a .year’s support for herself and children and prayed an injunction against the sale of the land until she could have her year’s support for herself and children, allowed her out of the note of Irvin, who has been made a party to the bill. By the 2530 section of the Code> the widow and children of a deceased testator, or intestate, whether the estate be solvent or insolvent, are entitled to a year’s support out of the estate as a part of the necessary expenses of the administration thereof, in preference to all other debts, of not less than $100 00, and if the estate does not exceed in value the sum of $500 00, the whole estate may be set apart for that purpose, and it makes no difference whether administration has been granted on the estate or not: Code, sec. 2459. If this land should be sold in satisfaction of Corbin’s judgment, Irvin could defeat the payment of his $900 00 note given to Jackson for the land, which constitutes all the property which Jackson left at the time of his death, out of which his widow and children can claim their year’s support-; so that the sale of the land in satisfaction of Cor-bin’s judgment debt, necessarily defeats the year’s support to be allowed the widow and children out of the intestate’s estate, in preference to any other debt. In our judgment, the widow and children of Jackson, under the provisions of the Code, have an equitable right to have the sale of the land enjoined according to the statement of facts made in the record, until a suitable provision for their year’s support can be provided for them out of the Irvin note, and the rights of the respective parties to the bill be adjusted according to the principles of equity and justice, as regulated by law upon the final hearing of the case.

Let the judgment of the Court below dissolving the injunction be reversed.