Holamon v. Jenkins

• Decision Date: 12 November 1934
• Docket Number: 23966.
• Citation: 177 S.E. 262,50 Ga.App. 129
• Parties: HOLAMON v. JENKINS et al.
• Court: Georgia Court of Appeals

177 S.E. 262

50 Ga.App. 129

HOLAMON v. JENKINS et al.

No. 23966.

Court of Appeals of Georgia, Second Division

November 12, 1934

Syllabus by Editorial Staff.

Property duly set apart as year's support vests in intestate's widow, or widow and minor children, and is not subject to administration as part of intestate's estate (Civ. Code 1910, § 4044).

Where return of appraisers setting apart year's support is not objected to, and, after due citation and notice, is recorded by ordinary, record has binding effect, and ordinary cannot modify return; but where objections are filed, ordinary discharges judicial function in determining issues made by return and objections, and can amend or alter return (Civ Code 1910, § 4044, and § 4043 as amended by Laws 1918, p 122).

Where appraiser's return setting apart entire estate of intestate as year's support was not objected to and was recorded by ordinary, ordinary's modification of return to allow payment of stated debt of intestate was invalid, and hence creditor's assignee could not obtain letters of administration (Civ. Code 1910, § 4044, and § 4043 as amended by Laws 1918, p. 122).

Error from Superior Court, Worth County; R. Eve, Judge.

Petition by J. O. Holamon for letters of administration, to which Mrs T. B. Jenkins and another filed a caveat. To review a judgment sustaining the caveat and denying letters of administration, petitioner brings error.

Affirmed.

J. H. Tipton, of Sylvester, for plaintiff in error.

R. S. Foy, of Sylvester, and C. W. Foy, of Butler, for defendants in error.

Syllabus OPINION.

JENKINS Presiding Judge.

1. Property duly set apart to the widow, or widow and minor child, of an intestate as a year's support vests in them, and is not subject to be administered as a part of the estate of the deceased husband or father. Stringfellow v. Stringfellow, 112 Ga. 494, 37 S.E. 767; Hendrix v. Causey, 148 Ga. 164, 166, 96 S.E. 180; Civil Code (1910), § 4044.

2. Where no objection is filed to the return of appraisers setting apart a year's support to a widow under the Civil Code, § 4043, as amended by Laws 1918, p. 122, and the return, after due citation and notice, is recorded by the ordinary, "such a record has the binding force and effect of any other judgment," without the need of any other act by the ordinary or power on his part to modify the return. Watson v. Watson, 143 Ga. 425, 427, 85 S.E 324, 325; Jackson v. Warthen, 110 Ga. 812, 814 (2), 36 S.E. 234; Selph v. Selph, 133 Ga. 409, 410 (2), 65 S.E. 881; Moore v. Moore, 126 Ga. 735, 738, 55 S.E. 950; Fulghum v. Fulghum, 111 Ga. 637, 36 S.E. 602, 37 S.E. 774. This for the reason that unless objections are filed, any further duties on the part of the ordinary are purely ministerial. If, however, objections are filed, the rule is different, and he thereafter discharges a judicial function in determining the issues made by the return and the objections, and, in such event, he is not without power to amend or alter the...