Ehrlich v. Silverstein

Decision Date15 October 1904
Citation48 S.E. 703,121 Ga. 54
PartiesEHRLICH v. SILVERSTEIN.
CourtGeorgia Supreme Court

EXECUTORS AND ADMINISTRATORS—WIDOW'S SUPPORT—ELECTION.

1. Where an intestate dies, leaving as his only estate property which has been set aside under the provisions of article 9, § 1, of the Constitution (Civ. Code 1895, § 5912), as a homestead for the benefit of himself and family, and his widow lives upon the property for several months until her death, without making an application for a year's support out of the property, or indicating any intention to do so, she will be held to have elected to take the homestead in the property rather than the year's support, and her executor cannot have the property set apartas a year's support to her estate under the provisions of Civ. Code 1895, § 3465. Brown v. Joiner, 3 S. E. 157, 77 Ga. 232, and 5 S. E. 497, 80 Ga. 4S6, Farris v. Battle, 7 S. E. 262, 80 Ga. 187, and Bardwell v. Edwards, 45 S. E. 40, 117 Ga. 824, distinguished.

(Syllabus by the Court.)

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Proceedings by D. Silverstein, executor of Lena Levy, against A. Ehrlich, administrator of David Levy. Judgment for plaintiff, and defendant brings error. Reversed.

Jacob Gazan and Emile Newman, for plaintiff in error.

Wilson & Rogers, for defendant in error.

CANDLER, J. David Levy died intestate on the 12th day of February, 1901, and Ambrose Ehrlich was appointed administrator of his estate. Eight months after his death his widow, Lena Levy, died testate, and David Silverstein qualified as her executor. On April 10, 1902, Silverstein, as executor of the will of Lena Levy, filed an application, under the provisions of Civ. Code 1895, § 3465, for a year's support Ehrlich, as administrator, filed objection to the appointment of appraisers and to the setting aside of the year's support In his caveat he set up, as reasons why the year's support should not be allowed, that in the year 1881 David Levy applied for and had set aside from his property a homestead in certain real and personal property for the benefit of himself and his family, which at that time consisted of his wife, Lena Levy, and a daughter; that the homestead so set apart consisted of personal property which at the time of the filing of the caveat was probably not in existence, and a certain tract of land in Chatham county which was being administered by the caveator, and out of which, or its proceeds, the year's support, if allowed, must come; that said real estate comprises the whole of the estate of David Levy; that the land sought to be devised in the will of Lena Levy is the same as that set apart as a homestead to David Levy and his family, which is now being administered by the caveator as his administrator; that at the time of the death of David Levy, Lena Levy was the sole surviving beneficiary of the homestead estate, receiving the rents, issues, and profits thereof; that in the eight months intervening between the death of David Levy and that of his wife the latter made no application for a year's support out of the estate of her husband; that she had an estate for life or widowhood in the homestead property; and that at any time during this eight months she could have elected to apply for a year's support out of the homestead property. It was further averred that the failure to so apply for a year's support amounted to an election on her part to keep and enjoy the entire homestead property, and a relinquishment of her right to have a year's support set apart out of it After the hear ing before the ordinary of Chatham county the case was carried by appeal to the superior court, where it was heard by the judge, without the intervention of a jury, upon an agreed statement of facts, which does not materially differ from the statement already set out as taken from the caveat, except that it appears that the homestead was applied for in the year 1882, and that the daughter, who was in life at the time of the setting apart of the homestead, died prior to the death of her father, David Levy, and that the land embraced in the homestead consisted of 100 acres in the county of Chatham. It nowhere appears what the value of the land was, either at the time of the setting apart of the homestead or of the trial of the case. The judge of the superior court overruled the caveat, and granted the application of the executor for a year's support The administrator excepted.

Section 3465 of the Civil Code of 1895 provides that "among the necessary expenses of administration, and to be preferred before all other debts, is the provision for the support of the family, to be ascertained as follows: Upon the death of any person testate or intestate, leaving an estate solvent or insolvent, and leaving a widow, or a widow and minor child or children, or minor child or children only, it shall be the duty of the ordinary, on the application of the widow, or the guardian of the child or children, or any other person in their behalf, " to appoint appraisers, whose duty it shall be to set apart and assign to such widow and children, in property or money, "a sufficiency from the estate for their support and maintenance for the space of twelve months from the date of administration, in case there be administration on the estate, to be estimated according to the circumstances and standing of the family previous to the death of the testator or intestate, and keeping in view also the solvency of the estate. * * * The provision set apart for the family shall in no event be less than the sum of one hundred dollars, and if it shall appear upon a just appraisement of the estate that it does not exceed in value the sum of five hundred dollars, it shall be the duty of said appraisers to set apart the whole of said estate."

It will be seen that the question for our decision is whether, where an intestate dies leaving no property, except such as has been set apart under the provisions of article 9, § 1, of the Constitution (Civ. Code, § 5912), as a homestead for the benefit of himself and family, and his widow surviving him lives upon the property for several months without making any application for a year's support out of the property, her executor can, under the provisions of the Code section above quoted, have the property set apart as a year's support to her estate. In the case of Brown v. Joiner, 77 Ga. 232, 3 S. E. 157, it was held that under this statute, upon the death of the husband leavinga widow or minor children, "the provision for the support of the family specified therein vests in such widow and minor child or children; and, if the widow die before it has been set apart to her, this right to have the twelve months' support survives to her administrator, and he may apply to the ordinary to have this allowance made in as ample, full, and complete a manner as the widow could have done were she in life." At first glance this ruling would seem to control the case under consideration and to settle the question for our determination, and upon the argument in this court we were asked to review and overrule this decision. An examination of the original record in the case cited, however, shows that there is no question but that the language which we have quoted was obiter. No such question was before the court, and the direction given in the case was without authority. The record referred to shows that the widow had, through her attorney, applied for a year's support out of her husband's estate for herself and one minor child of her husband by a former marriage. The widow died on the day the ordinary appointed appraisers to set apart the year's support. The appraisers, under the order of appraisement, set apart to the dead woman a year's support out of the estate of her husband, and their finding was duly filed with the ordinary, and by him entered of record. Within 12 months from the filing of the return of the appraisers, a motion was made by the administrator of the husband's estate, in which all the heirs of the husband, as well as the guardian of the minor for whose benefit the year's support was asked, joined, to have the return of the appraisers set aside in so far as it allowed any amount for the widow, on the ground that she was dead at the time of the appraisement and at the time of the entry thereof on the records by the ordinary. This motion was granted by the ordinary, and, on an appeal to the superior court by the administrator of the deceased widow, the judgment of the ordinary was sustained. The case was brought to this court, and the sole question presented was as to whether, for the reasons urged, the proceedings of the appraisers were void. The court agreed with the judge of the superior court and with the ordinary, and affirmed the judgment refusing a new trial; and, in doing so, direction was given to the ordinary that the administrator of the deceased wife be allowed to make an application anew for her year's support;...

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