Foster v. Turnbull

Lumpkin, J. (After stating the facts.) 1. Where an application has been made by a widow for the setting apart of a year’s support from the estate of her deceased husband, notice is required to be .given to the representative of the estate, if there is one; and if there is none, no notice is required. Civil Code, §3465. Here notice was given to the administrator. After appraisers have been appointed and made their return, the ordinary issues citation and publishes notice, “as required in the appointment of permanent administrators,” citing all persons concerned to show cause why the year’s support should not be granted. “If no objection is made after the publication of said notice for four weeks, or if made is disallowed, the ordinary shall record the return so made in a book to be kept for this purpose; if an appeal be taken, pending the appeal the family shall be furnished with necessaries by the representative of the estate.” Civil Code, §3467. It is alleged in this case that there was a judgment at the first term, which appears to have been after notice, citation, and publication as required by law. After that it was too late to file objections. In Jackson v. Warthen, 110 Ga. 812, citing Parks v. Johnson, 79 Ga. 567, it was held that exceptions must be filed at or before the first term of the court of ordinary, and are too late if filed after that time, although no action has been taken upon the application. It was not held, however, that, as matter of law, no action could be taken by the ordinary until the expiration of the first term.. The language of section 11467, quoted above, indicates a right to act sooner. If the contention of the caveators be correct, the return must lie in the office unrecorded, and the widow and children, if any, must wait for their support until an entire term of court has elapsed, in order to see if any one wishes to object. Such is not the intention of the law. If this application, in respect to hearing as well as notice, is analogized to the appointment of a permanent administrator, such an application stands for disposition at the first term, unless regularly continued. Civil Code, §3394; Parks v. Johnson, 79 Ga. 567, 568. Objections may be filed at or before that term. If filed at the term, they should be filed before final action has been taken by the ordinary on the application. If the case stands for trial at the [656] first term, where objections are filed, surely it does not have to. wait till the term has expired, if no objections are filed. 2. The plaintiff in error could not have the judgment opened and file objections as matter of right; and, treated as matter of discretion, there was no abuse of discretion in refusing to allow this, to be done. See on this subject McCandless v. Conley, 115 Ga. 50; Black Judg. §§297, 305; Harris v. Breed, 38 Ga. 299; Estes v. Ivey, 53 Ga. 54. Judgment affirmed. All the Justices concur.