Lowe v. Webb

• Decision Date: 12 July 1890
• Citation: 11 S.E. 845,85 Ga. 731
• Parties: Lowe. v. Webb.
• Court: Georgia Supreme Court

11 S.E. 845

85 Ga. 731

Lowe.

v.Webb.

Supreme Court of Georgia.

July 12, 1890.

Loss of Homestead—Merger.

In setting apart a year's support, Code Ga. 1882, 8 2574, provides that "the property so set apart shall vest in the widow and child or children, " and section 2271 provides that where two estates unite in the same person the less merged in the greater. Held, that where a widow's homestead is set apart as a year's support the homestead estate is thereby changed and merged into an absolute estate in fee, subject to her debts.

Error from superior court, Marion county; Smith, Judge.

R. B. Trippe and A. A. Dozier, for plaintiff in error.

Peabody & Brannon, for defendant in error.

Simmons, J. It appears from the record in this case that in the year 1869 a homestead was set apart for the use of Hannah Webb and her minor daughter; that in the year 1873 the husband died; and that in December of that year she filed her petition to the ordinary representing herself to be the widow of James Webb, lately deceased, and that his entire estate, both real and personal, did not exceed $500 in value, and prayed that commissioners be appointed to set aside the same to her and her minor daughter as a year's support. Commissioners were appointed, and they set aside the entire property, both real and personal, as not exceeding $500 in value, to Hannah Webb and her daughter as a year's support. Their report was made the judgment of the ordinary in 1874. After the year's support was set aside Hannah Webb incurred a debt, which was sued to judgment, and execution was issued and levied upon an undivided half interest in the land so set apart. She filed a claim to the land as the head of a family, setting up that it had been set apart to her and her husband as a homestead in 1869. The plaintiff in ti. fa. joined issue with her, and alleged that when she applied for and had set apart to her a year's support, which embraced the homestead which had been previously set apart to her, the year's support vested the title to the property absolutely in her and her minor child, share and share alike, and that her interest in the land was subject to the execution. Claimant's counsel demurred to this issue, and the court sustained the demurrer, and directed the jury to find the property not subject; to which the plaintiff in fi. fa. excepted.

We think that under the facts of this case the court erred in holding the property not subject. When the property was set apart to Mrs. Webb, in 1869, as a homestead, she had a life-estate in its use, and the death of her...