Mulherin v. Kennedy

• Court: Georgia Supreme Court
• Writing for the Court: SIMMONS
• Citation: Mulherin v. Kennedy, 120 Ga. 1080, 48 S.E. 437 (Ga. 1904)
• Decision Date: 12 August 1904
• Parties: MULHERIN v. KENNEDY.

48 S.E. 437

120 Ga. 1080

MULHERIN

v.KENNEDY.

Supreme Court of Georgia.

Aug. 12, 1904.

WIDOW'S ALLOWANCE—OBJECTIONS BY CREDITORS — APPEAL — MARSHALING ASSETS —DECREE— CONCLUSIVENESS —TRUST COMPANIES — CHARTER— SUPERIOR COURTS—TERMS—JURISDICTION—INSTRUCTIONS.

1. Where a widow applies to the court of ordinary for a year's support, to be set apart out of her deceased husband's estate, and appraisers are appointed, who set apart and assign to her certain specified property, a creditor may file objections to the report on the ground that the amount allowed the widow is excessive, and that the appraisers failed to take into consideration the solvency or insolvency of the deceased husband's estate; and there is no error in overruling a demurrer to such objections.

2. If upon the trial the ordinary overrules the objections of the creditor, and approves the report of the appraisers, and enters a judgment setting apart the property as a year's support, an appeal to the superior court, entered by the creditor, suspends the judgment, and the widow has no vested right to the property in fee until the judgment is affirmed in the superior court. The only effect of the judgment appealed from is to prevent the alienation of the property. Civ. Code 1895, §§ 5340, 5352.

3. If, subsequently to the appeal, the administrator of the deceased husband files an equitable petition to marshal the assets of the estate, and alleges that the appealing creditor claims to own a portion of the land set apart as a year's support, and that other creditors claim other portions thereof, and prays that they and the widow interplead, a decree finding in favor of the creditors, and that the title to the property set apart as a year's support was in the creditors at the time of the husband's death, binds not only the administrator, but the heirs of the deceased and his widow. This is true although the administrator of the widow, who had died pending the litigation, was dismissed from the bill before decree. The facts of this case differ from those in Robson v. Harris, 7 S. E. 926, 82 Ga. 153, 155, relied upon by the plaintiff in error. In that case the administrator was not a party to the suit. The present case differs, also, from Marshall v. Charfand. 31 S. E. 791, 100 Ga. 42. In that case the widow had a judgment setting apart her year's support; there was no appeal from this judgment, and her rights had become vested as against the estate of the deceased husband; and her rights in the property so taken therefrom and given her could not be affected by the judgment in a suit subsequently instituted against such estate.

4. The act of 1898 (Acts 1898, p. 78), authorizing the Secretary of State to grant charters to trust companies with banking privileges, is not violative of paragraph 18 of section 7 of article 3 of the Constitution of this state (Civ. Code 1895, § 5780). The companies providedfor in that act are embraced within...