Brown v. Joiner , 80 Ga. 486 ( 1888 )

Bleckley, Chief Justice.

A widow made application for year’s support out of the estate of her deceased husband. She died before the commissioners appointed to set it apart acted. They, however, went on and performed their duties, made their return, and that return was not objected to, and so, by operation of law, upon being recorded became a judgment (or would have become so had there been adequate parties) in her favor for the year’s support. Subsequently an administrator upon her estate was appointed, and the administrator upon the husband’s estate moved in the court of ordinary to set aside the judgment allowing the year’s support, upon the ground that the widow was dead at the time the commissioners acted and at the time the subsequ ent proceedings took place, That motion was granted and an appeal was taken to the superior court, and the same judgment was rendered there. That was brought to this court by the widow’s administrator, and the judgment of the court below was affirmed, with this direction: “that the administrator of the widow be allowed to make an application anew for her twelve months’ support, to the ordinary, and that the same be set apart to him as her administrator, under the same rules and regulations as would apply in case the widow were alive and the application had been made by her; and that when the same is set apart, he shall hold the same as her administrator, to be accounted for and distributed, under the law, to her heirs at law or creditors.” Brown, adm'r, vs. Joiner, adm’r, 77 Ga. 232. After that judgment was rendered by this court, but before the remittitur was entered below, the widow’s administrator proceeded to make an application, and it was granted; the administrator of the husband, however, together with the heirs at law of the husband’s estate, filing objections in the court of ordinary. These objections were overruled, and an appeal was taken to the superior court. Upon.the hearing of that appeál, the court dismissed the application as prematurely made; and the reason assigned in argument for that action is, that the application was made before the remittitur from this court was entered.

We think this reason was not good; that the right and power of the administrator to make his application was not derived from the judgment of this court or any direction contained in it, but from the law itself, and the law would be the same before the entry of the remittitur as after it. It is quite a misconstruction of the two proceedings to consider one as-a part of the other. The case which came here and in which this directory matter was inserted in the judgment rendered, was one to set aside a proceeding, and the proceeding was set aside. It was finally ended; and this present application is not a continuation of that proceeding in any respect. It has no connection with it. ' It rests upon the theory which this court has announced in several cases, that the year’s support vests in the widow from the time the intestate dies. It is a right, in the distribution of the estate, to take more than other distributees, unless-they are minors; and that right is a property in the widow, transmissible on her death to her legal representatives ; and it is by virtue of' the general law by which the administrator represents all the estate of his intestate that this administrator had the right to commence and maintain this new proceeding.

Judgment reversed.