Federal Land Bank of Columbia v. Henson

• Decision Date: 12 September 1928
• Docket Number: 6376.
• Parties: FEDERAL LAND BANK OF COLUMBIA v. HENSON.
• Court: Georgia Supreme Court

144 S.E. 728

166 Ga. 857

FEDERAL LAND BANK OF COLUMBIA v. HENSON.

No. 6376.

Supreme Court of Georgia

September 12, 1928

Syllabus by Editorial Staff.

Civ Code 1910, § 3931, providing that wife shall have child's part unless wife elects to take dower, must be construed together with section 5249, providing that dower may be barred by widow's election to take child's part of realty in lieu of dower, and entitled widow of intestate leaving children and realty, to share in realty with children, provided within one year of grant of letters of administration widow elects to take child's part in lieu of dower.

Where widow is entitled to dower or to child's part in real estate of deceased husband and elects to take child's part in lieu of dower, under Civ. Code 1910,§§ 3931, 5249 election may appear by writing duly signed and recorded in office of ordinary, or may appear by proof of circumstances sufficient to show that within time allowed by law widow affirmatively elected to take child's part.

In petition to enjoin widow from prosecuting her application for year's support, evidence that widow within year from grant of administration served notice on administrator of election to take child's part in estate and applied to court of ordinary for statutory year's support was sufficient to show prima facie that widow elected to take child's part in realty within 12 months after grant of letters of administration, as required by Civ. Code 1910, §§ 3931, 5249.

Under Civ. Code 1910, § 4041, providing that provision for support of family is necessary expense of administration to be preferred before all debts, widow may obtain year's support for herself if there are no minor children; and if there are minor children, year's support is for benefit of both widow and children.

Civ Code 1910, § 4041, making provision for support of family necessary expenses of administration to be preferred before all other debts, does not exclude widow from taking child's part in realty if she has year's support assigned to her.

Under Civ. Code 1910, § 4041, not limiting time after death of husband within which application for year's support shall be made, mere lapse of time will not as matter of law bar right to apply for statutory year's support.

In application by widow for year's support, ordinary should consider long lapse of time between death of husband and widow's application in connection with other facts tending to show widow had received support from estate, or had waived it expressly or impliedly, in determining amount to be granted or whether application should be wholly refused.

Privy in estate to heir of deceased husband may in court of ordinary contest with widow her right to and amount of year's support out of estate of her deceased husband.

In proceedings to enjoin widow from prosecuting her application for year's support, evidence as to widow's relinquishment of property to another, who conveyed land, procurement by grantee of loan thereon from mortgagee, and as to widow's knowledge thereof held not to demand finding that widow was estopped from asserting right to child's part in estate left by deceased, or from prosecuting before court of ordinary her application for year's support.

To secure year's support out of land which had been conveyed by adult child and loan procured thereon from plaintiff by grantee, cancellation of deed was not essential to establishment of widow's right to year's support or child's part in distribution of estate.

In suit by mortgagee of land to enjoin application for year's support by former owner's widow, testimony that, prior to consummation of sale to mortgagee's immediate predecessor, former husband told purchaser that he could not buy property without widow's assent, and that purchaser replied that "he could," held properly admitted.

In suit to enjoin widow's application for year's support, in which widow claimed to have served administrator with notice of election as widow to take child's part in estate, within less than year after grant of administration, record in court of ordinary relating to appointment of administrator on estate of deceased husband held properly admitted over objection that it was irrelevant.

In mortgagee's suit to enjoin application for year's support by former owner's widow, evidence of notice by widow to administrator within year after grant of administration of election as widow to take child's part of estate, and of widow's want of knowledge or consent to child's conveyance of property, which was mortgaged to plaintiff, and evidence of support received by widow, held sufficient to support verdict awarding widow interest in property as distributee in estate, and allowing her to continue prosecution of application for year's support.

Error from Superior Court, Gordon County; C. C. Pittman, Judge.

Action by the Federal Land Bank of Columbia against J. B. Henson, administrator. Judgment for defendant, plaintiff's motion for new trial was overruled, and plaintiff brings error. Affirmed.

Widow's right to year's support or child's part in distribution of estate held not to require cancellation of deed to realty by adult child.

W. E. Rash died in 1910, leaving a widow and one child, W. T. Rash, who was an adult and commonly called Wylie Rash. There was no administration until January, 1925. The estate consisted of a tract of land containing 55 acres, more or less, on which at the time of his death the deceased resided and cultivated a farm. Four months after the grant of the administration the widow made application to have a statutory year's support set apart out of the land. The Federal Land Bank, claiming as a remote grantee of W. T. Rash as sole heir at law of W. E. Rash, deceased, instituted an action against the widow to enjoin her from prosecuting her application for a year's support. The grounds of complaint alleged in the original petition were, first, that plaintiff was absolute owner of the land; second, that the widow was estopped, as against the plaintiff from asserting a right to a year's support to be set apart out of the land. The alleged grounds of estoppel were (a) that after the death of her husband the defendant continuously remained on the property and received a support therefrom for a period of four years, and then moved away; (b) that at the time she left the property she relinquished control thereof and gave it to her son; (c) that four years thereafter, in 1918, W. T. Rash with full knowledge and consent of the widow executed a bond for title to the property to J. W. Fuller, plaintiff's immediate grantor, who went in possession of the land under the bond for title; (d) that thereafter in 1922 W. T. Rash executed a warranty deed to Fuller in order that Fuller might procure a loan on said property from petitioner; that the defendant knew that the title was being placed in Fuller for the purposes above stated, and allowed the loan to be made without disclosing to petitioner that she claimed any interest in the property. The defendant filed a demurrer; also an answer in which she denied plaintiff's ownership of the land and the alleged grounds of estoppel. The defendant also filed a cross-petition, elaborating her denial of the alleged grounds of estoppel, and praying for cancellation of the bond for title and deed from W. T. Rash to Fuller. The defendant also filed an amendment to her original answer, in which she pleaded defensively all the matters set up in the cross-action, and further alleged that in July, 1925, she exercised and expressed her right of election, as the widow of W. E. Rash, to take a "child's part" of the real estate of W. E. Rash, who left no heir at law except defendant and his son, W. T. Rash. She denied that plaintiff had a loan deed to the property, but alleged that, if it has, it has other described property as security for the debt in which defendant has no interest, and that plaintiff should be first required to exhaust such security before resorting to the property involved in this case. The amendment also denied that defendant had misled the plaintiff or had done any act to estop her from asserting her rights in the premises. The court overruled the defendant's general demurrer, and refused to rule upon certain special grounds of demurrer, but sustained the plaintiff's general demurrer to the defendant's cross-action.

The case proceeded to trial, and a verdict was returned in favor of the plaintiff. The defendant's motion for new trial was overruled, and she excepted and assigned error also on the antecedent rulings above mentioned. The judgment of the trial court was reversed (see 162 Ga. 839, 134 S.E. 923). When the case was returned to the trial court the plaintiff for the purpose of meeting the grounds of special demurrer, amended its petition by setting out an abstract of title under which it claimed. The abstract of title showed that plaintiff claimed directly under a commissioner's deed executed in pursuance of a sale to petitioner, based on a judgment of foreclosure, in the United States court, for a loan deed executed in 1922 by Fuller to petitioner. It also showed that Fuller claimed 46 acres of the land under a deed directly from W. T. Rash, executed in 1922 in pursuance of a bond for title executed by Rash in 1918, and the remaining nine acres under a chain of deeds commencing in a deed from W. T. Rash executed in 1918 to J. W. Keefe, and intermediate conveyances extending down to Fuller. The abstract also showed that in 1922, W. T. Rash executed directly to Fuller a deed purporting to convey the said 9 acres. The plaintiff's amendment alleged that the defendant knew of the sales by W. T. Rash to Keefe and Fuller and acquiesced in those sales, and that Keefe and Fuller and those claiming...