Fountain v. Hendley

• Decision Date: 23 March 1889
• Citation: 9 S.E. 666,82 Ga. 616
• Parties: FOUNTAIN et al. v. HENDLEY et al.
• Court: Georgia Supreme Court

9 S.E. 666

82 Ga. 616

FOUNTAIN et al. v. HENDLEY et al.

Supreme Court of Georgia

March 23, 1889

Syllabus by the Court.

A widow, both in the character of the head of a family and the guardian of her minor children, having, in 1872, applied for and obtained a homestead in the real estate of her husband who died after the constitution of 1868 was adopted, the effect of so doing was to obtain a homestead as the head of a family in her own undivided share, and a homestead as the guardian of her minor children in their undivided shares. All the children having attained their majority, the latter homestead has terminated, and the children are not entitled to enjoy their respective shares of the premises; but, under the facts of this case, the judge below did not abuse his discretion in refusing to grant an injunction and appoint a receiver.

Error from superior court, Pulaski county; KIBBEE, Judge.

On April 12, 1872, Edna Hendley filed with the ordinary a petition for a homestead in the property of her husband, John A. Hendley, (who had died in December, 1871,) for the benefit of herself and her minor children, naming them. In this petition the land from which the homestead was sought to be set apart is referred to as the home place, and the numbers of the land lots are given. The minors having become of age or married, a petition to the superior court for injunction receiver, and division of the estate was filed by all of them except W. L. Hendley, who was made a party defendant with Edna Hendley. The prayers are that the homestead be declared void and of no further force; for injunction against collecting rents, selling timber, further renting, etc., for account by defendants for the use, rents, and profits of the land; for receiver to take charge of and rent the land, under direction of the court, until disposed of; that the land be sold for partition and division; and for general relief. The injunction and receiver were refused, the court holding as follows. "The homestead right is not severable, and where, after the death of the husband, the widow applies for and obtains a homestead out of the estate of her husband for herself and children, all of whom are minors at the time of the application, the homestead estate did not expire upon the last child coming of age. The widow occupies the double position of a quasi trustee and also a beneficiary and the homestead remains during her widowhood. The heirs at law in this case were all minors,--all parties to the homestead proceedings. They continued as beneficiaries until they arrived at age, and the widow as long as she remains a widow. To divide out the homestead would, in effect, partially destroy it." The plaintiffs excepted.

Martin & Smith, for plaintiff in error.

Jordan & Watson, contra.

BLECKLEY C.J.

The facts are stated in the official report. Mrs. Hendley, in 1872, obtained a homestead in all of the realty of which her husband died seised. She applied for it both as the head of a family and as guardian for her minor children. There were various irregularities and omissions in the proceedings, but we treat them as substantially sufficient. We differ however, from the court below in the construction of their legal effect. The constitution of 1868, and the statutes carrying the same into effect, gave the right of homestead both to the heads of families and to the...