Maddox v. Patterson

Bleckley, Chief Justice. In Farris vs. Battle, last term, (80 Ga. 187,) the court held that the family, of an intestate who died domiciled in Georgia, were entitled'to a year’s support out of his estate, to the exclusion of creditors, although they were not themselves residents of the State and never had been. The family in that case consisted of a widow and minor children. In the present case, the application is by a minor child, and the only point, or at least the material point of distinction is, that the parents had been divorced before the death of the husband-and father. He died in this State, and administration was granted upon his. effects here. There had been a total divorce between him and his wife, granted in March, 1881. The judgment awarded the custody of their only child to the mother; and about six months after the rendition of the final judgment granting a divorce, the mother and child removed from this State to Missouri; and they were still residents of that State at the time this application was made. The judgment of divorce did not grant alimony, .either permanent or temporary, to the wife or- the child ; and so far as appears, there was no discharge of the father from his obligation to support his child. It is alleged that, on account of the divorce, and because of the non-residence of the child at the time of the father’s death, the child would not be entitled to the year’s support; but we think otherwise. It is the minor child of this intestate, and that entitles it to-this special statutory provision in its behalf for a year’s support. It does not come in competition with any other child or set of children. It -does not appear that the husband and father, after the divorce, was ever married again, or that he left any family except this - one minor child; and it appears that the child is his sole heir at law. It seems to us that she is entitled, under the principle of the case of Farris vs. Battle, to have the year’s support set aside to her, and the court below so held. Judgment affirmed.