Singleton v. Huff

Tripue, Judge.

The wife of Leroy Singleton, in March, 1872, applied for and had set apart for her a homestead in the realty and the personal property of her husband. The sheriff then levied the execution of defendant in error upon the balance of the land of the husband. Before the sale, in May ensuing, the husband died, to-wit: in April, 1872. The land brought less than §500 00, and the widow sets up her right to twelve months’ support, etc., and that it ^should be paid out of the proceeds of the sale. Thus the wife had assigned to her of land of the value of §2,000 00 in specie, a few weeks before her husband’s death. For it is to be presumed that she got the full valuation allowed by law, as there was a portion of the land left unassigned. It may be assumed, also, that she has the $1,000 00 in personalty, else the contrary should have been shown by her. She now, with that in possession, asks the balance of the estate as a twelve months’ support.

In Roff, Simms & Company vs. Johnson, 40 Georgia, 555, it was held that, “the homestead is subject to the dower, and so, too, is the exemption of personalty subject to the year’s support, whatever of the year’s support has been received is to be deducted from the amount of the $1,000 00.” The converse of this proposition must be equally true, to-wit: whatever of the $1,000 00 has been received, is to be deducted from the year’s support, especially if it be in possession of the wife at the death of the husband. Here it was assigned only a very short time before she became a widow, and if she rested her claim on any special fact, such as the loss, destruction or consumption of it during the life of her husband, and that there was nothing for her support, she should have shown that fact.

It certainly would be going too far to construe these different provisions so that the wife could take the full homestead, should have and keep the same after her husband’s death, and then claim the twelve months’ support from the balance of his estate; and that, too, when the support is much less than either the homestead in the realty or the personalty.

In Roff, Simms & Company vs. Johnson, it was further said: “ These several acts are to be taken together. Their common purpose is to provide for the family of a debtor, whose estate is about to be swept away for the payment of his debts, and we think it is doing no violence to the intention of the Legislature to hold that the family of a deceased debtor cannot take them all.”

The Court did not err in adjudging the money arising from the balance of the land to the execution.

Judgment affirmed.