Patterson v. Swift & Co. , 163 Ga. 297 ( 1926 )

Beck, P. J.

(After stating the foregoing facts.)

We are of the opinion that the verdict was authorized by • the evidence in the case. The property embraced in the year’s support which had been duly set aside to Mrs. Patterson and her minor children was taken from the estate of Mrs. Patterson’s first husband, Newton. It was set aside for the support of herself and her minor children. After her second marriage she continued to live on the land, and was living there and being supported from the crops grown on the land when the debt upon which the fi. fa. levied upon these lands was created. The debts were evidenced by a note secured by a deed given for that purpose under the provisions of the statute. In the note it was recited that it was given for fertilizer. The fertilizer, as it appears, was all used upon lands included in the year’s support. A part of it was used on the portion of the land covered by the levy of the fi. fa., and a part used on another tract of land. Both tracts had been set apart as a year’s support. The jury were authorized to find that the fertilizer was sold by the plaintiff in fi. fa. to Mrs. Patterson in good faith. She had been buying fertilizer and using it upon these lands for many years. If the children had left the premises, and this was a material fact, it was not disclosed that the plaintiff knew of that fact. The fact that Mrs. Patterson had married the second time did not deprive her of the right to sell and convey the land for the purpose of deriving from the proceeds a support for herself and minor children. Swain v. Stewart, 98 Ga. 366 (35 S. E. 831). In the case of Ragan v. Shiver, 130 Ga. 474 (61 S. E. 1), it was held that where the lands of a decedent are duly set apart as a year’s support to a widow and minor children jointly, the widow is entitled to use it for the joint support of herself and children and for her own support as long as she lives, and she has the right to sell the entire fee. It was further said in that case: “There being no averment to the contrary, it will be presumed that the widow’s conveyance was to raise funds for the support of herself, or of herself and children.” “The validity of a sale of the land by the widow for the purpose of providing for her support is not dependent upon necessity to sell.” Reese v. Reese, 146 Ga. 684 (93 S. E. 318).

Error is assigned upon the following charge of the court: “The only question for you to pass upon in this case is, did Mrs. Patterson buy the guano sold in this case for her own benefit or for the benefit of the minor children, to be used by herself or her present husband for her support or the support of her minor children. If you should find that the property was sold or deeded for this purpose, it would be your duty to find the property subject to this execution; if you should find the property was not sold for this purpose, then of course, if she did not derive any benefit from it, she or her minor children, and that that was not the purpose of the conveyance, then your verdict would be for the claimant, Mrs. Patterson.” Movant insists that this charge was error, because the court instructed the jury in effect that if the guano was sold for the benefit of either Mrs. Patterson or her minor children, the plaintiff would be entitled to recover; movant insisting that, “when property is set aside for a year’s support to the widow and minor children, the use of the entire property is a joint one; that out of the property so set apart both the widow and all of the minor children are to be supported, and neither the widow nor the children are to be supported to the exclusion of the other.” The charge is not error for the reason assigned. It is true that when property is set aside as a year’s support it vests in the widow and minor children, and the use of the entire property is a joint one, and out of it both the widow and the minor children are to be supported. Bank of Cuthbert v. Taylor, 158 Ga. 337 (133 S. E. 363). In the case just supposed the widow and minor children owned the property in common. Miller v. Miller, 105 Ga. 305 (31 S. E. 186). But where the children left the premises and the widow remained thereon and incurred a debt- for fertilizer essential to make the land set apart productive, the vendor of the fertilizer could enforce his claim for the debt against the land. If the children had left the premises and gone to some other place, they still had a claim for support out of the products of the farm, the fertility of which had been increased by the fertilizer upon it. Whether or not the vendor of fertilizer to be used upon a farm set apart as a year’s support for the widow and minor children could enforce his claim for the fertilizer used upon the farm, where he knew that the widow had compelled the children to leave the place and that she would refuse to allow them to participate in the products of the farm, is a question not before us for decision. But we do not think that where the year’s support is set apart to a widow and minor children, the vendor of fertilizer used to increase the fertility of the farm is bound to inquire whether or not the children are still remaining upon the land, or whether there would be a proper division of the products of the farm between the widow and the children. The widow in this case had been using fertilizer for many years upon this same land; whether bought from-the same vendors, defendants in error, the record does not disclose. If the children in this case were deprived of participation in the proceeds of the year’s support, that fact might be made the basis of a suit to compel a proper allowance out of the crops grown on the lands ■forming the year’s support set apart. Besides, in her claim it is averred that the fertilizer in question, which is the consideration of the debt upon which the execution levied was based, “has not been used for the support, maintenance, benefit, or education of said minor children of this defendant.” Further, that Swift & Company had knowledge, at the time she contracted the debt for the fertilizer, that it was not contracted for the purpose of support, maintenance, or for the benefit of the defendant and said minor children. As pointed out above, the recital of the claimant is that the fertilizer was to be used upon the land set apart; and as a matter of fact it was used upon those lands, and the widow was living upon them with her second husband, though the children were not then residing there. We think the charge was authorized. And if it were not strictly accurate, we are of the opinion that it should not cause a reversal in this case, as the evidence demanded the finding of the property subject. It follows from what we have just said that the other charge complained of was not error.

The third headnote needs no elaboration.

Judgment affirmed.

All the Justices concur.