Gibbs v. Land , 136 Ga. 261 ( 1911 )

Atkinson, J.

1. The ruling announced in the first headnote results from-the statute, Civil Code (1910), § 4041 (Civil Code (1895), § 3465), which authorizes the setting apart of property of a decedent for the support of the family. The declared object of the statute in authorizing the property to be set apart is “to make provision for the support of the family.” -The right of a family for such purpose to property so set apart is made to rank with necessary expenses of administration, and is “preferred before all other debts.” This statute, having for its special object provision for the temporary support of the family, was never intended to be so applied as to enable one creditor to gain a preference over another, or to allow the family to have property set apart to them otherwise than for such support. If the widow were allowed to have property so set apart, and then divert it to some other use than for the support of the family, the benign object of the statute would be defeated. It has been held in many decisions of this court that the widow may sell and convey the land set apart for a year’s support, where the proceeds of the sale. are. to be applied to the support and maintenance of the family. Ragan v. Shiver, 130 Ga. 474 (61 S. E. 1), and citations. But in no case has it been so held where the object of the sale was for any other purpose. To justify the ruling that the purposes for which a widow may sell property set apart to the family as a year’s support are restricted to those of maintenance and support of the family, it is unnecessary to look beyond the statute; but in Vandigrift v. Potts, 72 Ga. 665, it was said: “While a widow may sell land set apart as a year’s support, on behalf of herself and children, when necessary in order to support them; yet where she remarried, sold the land, and bought other land, taking title in herself and her second husband, the sale is not good.” And it was held in the case of Hill v. Van Duzer, 111 Ga. 867 (36 S. E. 966) : “Neither a widow nor her agent, whatever his authority, can lawfully apply the proceeds of a year’s support set apart for the benefit of herself and minor children to the payment of a pre-existing debt due by her individually, in the consideration of which the minors had no interest.” These decisions are in recognition of the rule announced.

2. Under the allegations of the petition the purchaser well knew the character of the.estate and the purpose of the sale, and participated in the diversion of the property by paying the agreed purchase-price over to the creditor of the decedent. He was charged with knowledge of the law, which forbade the diversion, and, under the circumstances alleged, acquired no title. No consideration was 'paid to.the widow and children. As to them the conveyance was without consideration. The widow and children received no benefit, nor did they mislead the purchaser to his injury. Under no view would they be estopped by the conveyance 'of the widow, but she in her own behalf and that of the children could.maintain a suit for recovery of the land and mesne profits. No part of the money which was paid to the creditor of the decedent went into the hands of the widow or children, and they would not be required to reimburse the purchaser for the money which he had unwisely paid to the creditor of the decedent. The demurrer was insufficient to require a dismissal of the action upon any ground taken.

Judgment reversed.

All the Justices concur.