Radford v. Bethea , 44 Ga. App. 593 ( 1932 )

Jenkins, P. J.

1. Under the rulings by the Supreme Court in Fulghum v. Fulghum, 111 Ga. 635 (36 S. E. 602, 37 S. E. 774), and by this court in Hill v. Hill, 36 Ga. App 327 (136 S. E. 480), in a proceeding to enforce the collection of a year’s support set aside to the Avidow oE a deceased person by judgment of the court of ordinary, the executor can not go behind the judgment for the purpose of showing that he is entitled to a credit upon the judgment for money advanced by him. Accordingly, in the instant case it Avas error .for the court to admit in evidence, over objection, checks issued by the executor as advancements to the AvidoAv, prior to the judgment setting aside a year’s support to her.

2. While “the judgment of the ordinary alloAving a AvidoAv . . a year’s support is conclusive only that she is entitled to the amount of the judgment if there be assets to pay it; and such judgment is no evidence that the administrator has sufficient assets of his intestate Avith Avliich to pay it” (Wood v. Brown, 121 Ga. 471, 49 S. E. 295), in the instant case the only defense actually pleaded to the rule io enforce payment of the year’s support Avas that the defendant executor had “turned over to” the plaintiff “everything set aside to her in year’s support and . . paid her all of the said $3,500.” The proof going to show advances made to the creditors of the deceased Avith the consent of the AvidoAv prior to the judgment in the court of ordinary Avas not, therefore, relevant or admissible as in support of a plea merely setting forth the insufficiency of the assets of the estate to pay the year’s support. Consequently, since the proof Avas specifically objected to, the judgment overruling the plaintiff’s motion for a neAV trial can not be affirmed on the theory that the failure to plead such defense of lack of assets might have been corrected by amendment, and Avas cured by the verdict in favor of the defendant. Judgment reversed.

Stephens and Bell, JJ., concur.