Lane v. Jackson , 1921 Ga. LEXIS 340 ( 1921 )

George, J.

(After stating the foregoing facts.) Properly construed, the suit is an action by plaintiffs as heirs at law of W. A. Jackson, deceased, to recover land which he owned at the time of his death. The plaintiffs definitely characterize their suit as one by themselves as heirs at law of their deceased father. They attack the judgment setting aside the year’s support for the mother and plaintiffs. They further charge. that the defendant purchased the land with knowledge that such judgment was void, and that he is not a bona fide purchaser of the land. The suit is in no sense a suit by plaintiffs as beneficiaries under the judgment for year’s support, although some of the allegations are appropriate to such a suit. Thus considered, the petition was subject to demurrer, unless the judgment in the year’s support proceeding was void as alleged. In Hendrix v. Causey, 148 Ga. 164, 165 (96 S. E. 180); this court, speaking through Mr. Justice Gilbert, said: “In a proceeding to set apart a year’s support for a widow and minor children out of the property of the deceased husband, the widow may act for the minor children as well as herself. Civil Code, § 4041; Ferris v. Van Ingen, 110 Ga. 102 (7), 118 (35 S. E. 347). In such case the minor children are as plaintiffs and the judgment obtained is in their behalf, The notice required by law of an application for year’s support and the return of the appraisers is for the benefit of persons whose interests are adversely affected by the judgment, and not fo.r the widow and minors, for whose benefit the judgment is rendered. Neither the widow nor the minor children can complain that others do not have proper notice of the proceedings. See Galloway v. Vestal, 135 Ga. 707-711 (70 S. E. 589). The plaintiff in this case is one of the minors for whose benefit the year’s support was set apart.” See also Seeland v. Denton Realty Corporation, 148 Ga. 628 (97 S. E. 681). Since the plaintiffs in this suit were plaintiffs in the year’s support proceedings, it would seem that they can not be heard to complain that the judgment therein is void because the amount set apart to them was grossly excessive. It is, however, settled that a judgment of the ordinary setting apart a year’s support is a judgment of a court of general jurisdiction. Stringfellow v. Stringfellow, 112 Ga. 495 (37 S. E. 767). “Every presumption is in favor of the judgment of the ordinary setting apart a year’s support, and it can not be collaterally attacked.” Tabb v. Collier, 68 Ga. 641 (2); Goss v. Greenaway, 70 Ga. 131. The petition alleges that the land was duly set apart as a year’s support. The year’s support proceedings were therefore regular upon their face. They did not disclose a want of jurisdiction either of the person or subject-matter. Wash v. Dickson, 147 Ga. 540 (94 S. E. 1009). Fraud in the procurement of the judgment is not charged. At least the defendant is not charged with any fraud in the procurement of the judgment. It is alleged that the defendant at the time of bis purchase, which was some time subsequently to the setting apart of the year’s support, knew that the judgment was void because the amount of the property set apart for the year’s support was grossly excessive. Even if this be fraud at all, it is not such fraud in the procurement of the judgment as will open that judgment to collateral attack, in the circumstances alleged in the petition.

The judgment approving the return of the commissioners setting aside the year’s support must, for the purposes of this case, be taken as a valid judgment. “ The property so set apart by the appraisers shall vest in the widow and child, or children; and' if no widow, in such children, share and share alike; and the same shall not be administered as the estate of the deceased husband or father.” Civil Code, (1910), § 4044. The estate in property set aside as. a year’s support is a fee-simple estate. It is certain that plaintiffs, so long as the judgment remains in force, must claim under and by virtue of the judgment, and not as heirs at law of the deceased father. Miller v. Miller, 105 Ga. 305 (31 S. E. 186); Mulherin v. Kennedy, 120 Ga. 1080 (48 S. E. 437); Moore v. Moore, 126 Ga. 735 (55 S. E. 950) : Winn v. Lunsford, 130 Ga. 436 (61 S. E. 9). The third headnote in Stringfellow v. Siringfellow. supra, is as follows: “Where petitioners seek, as heirs at law- of a named decedent, to have lands which he owned at the time of his death partitioned between themselves and others, a complete defense to such action is made out when it is showD that, after the death "of the owner of the lands, they were diilv set apart to his widow- and minor child as a year’s support. (a) Property duly set apart to the widow and minor child of an intestate, as a year’s support, vests in them, and the heirs at law of the intestate no longer have any interest therein.” The case of Moore v. Moore, supra, is directly applicable and controlling. The plaintiffs in that case sued as heirs at law of their deceased father. They based their claim for a recovery upon proof that their father died in possession -of the realty sued for. It appeared that after the death of the father the land was set apart to his widow as a year’s support. The widow was the stepmother of plaintiffs; and it was held that upon her death. the land descended to her heirs at law, and not to the plaintiffs. It is unnecessary in this case to decide the exact character of the estate of the plaintiffs in the land set apart to the mother and the plaintiffs as a year’s support, the mother being yet in life. Whatever the nature of their estate or interest in the land, that estate or interest is based upon the judgment of the court of ordinary setting aside the year’s support, and the plaintiffs can not recover the land or any interest therein as heirs at law of their deceased father. Since the plaintiffs sued in the latter capacity only, the court erred in .overruling the general demurrer to the petition.

Judgment reversed.

All the Justices concur.