Fountain v. Hendley

Bleckley, Chief Justice. 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 seized. 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, with 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 guardians and trustees of minor children. Code of 1878, §§5135, 2002-2039. The husband of Mrs. Hendley having'died after the homestead system was established, although his lands descended to her and the children as heirs at law, she might, according to several decisions of this court (see cases cited below), have taken a homestead as the head [622] of a family only; but she did not elect to pursue that course. She applied in both characters, to wit, as the head of a family and as guardian. We think the effect of so doing was to take a homestead in the former character in her own share of the land — her own undivided interest therein, and in the latter character in the shares of the children — their undivided interest as co-heirs with her. This construction gives effect to her whole act and makes her application consistent. No other that we can think of will harmonize the two characters in which she made the application and obtained the homestead. There is quite as much reason for holding that she got no homestead as the head of a family, as there is for holding that she got none as guardian. It appears from the petition that the minors have all attained their majority; and this being so, the homestead in their behalf is terminated, and their respective shares in the property are now subject to their own control and no longer to her control. The homestead which she took as the head of a family still perhaps subsists, but it is restricted, as we have seen, to her undivided share in the property. The petition alleges that a partition in kind of the land cannot be made; and if so, we see no obstacle to rendering a final decree, at the proper time, 'to make partition by sale. For this purpose the petition is still pending, and we discuss the subject only for the purpose of expressing our dissent from the reasoning upon which the j udge placed his denial of the injunction and the appointment of a receiver. While we overrule his reason, however, we leave his judgment to stand. For as these parties arc all kindred, and as no great length of time will probably elapse until a final decree can be had, we think there is not such irreparable mischief to any of them likely to happen as to make such an extreme measure as the appointment of a receiver, etc. appropriate to the case. [623] As to the right of widow to take ■ homestead as the head of a family, see Hodo vs. Johnson, 40 Ga. 439; Faircloth vs. St. Johns, 44 Ga. 603; Raley vs. Ross, 59 Ga. 862; Gerding vs. Beall, 63 Ga. 561; Hodges vs. Hightower, 68 Ga. 281; Groover vs. Brown, 69 Ga. 60; Bridwell vs. Bridwell, 76 Ga. 627; Lee vs. Hale, 77 Ga. 1; Deyton vs. Bell, 81 Ga. 370. In Madden vs. Jones, 75 Ga. 680, the right was limited to the distributive share of the widow, but the death of the husband occurred before the laws of descent were modified by the homestead system. As to the right of minor children to have homestead on separate application in their behalf, see Roff vs. Johnson, 40 Ga. 555. J udgment affirmed.