Martin v. Gaissert

Hill, J. The right to a second year’s support allowed to a widow out of the estate of her deceased husband is a statutory right, and can be obtained only by conforming to the condition' of the statute. The Civil Code, § 4041, provides for the setting apart of a year’s support to a widow, or to a widow and minor child or children, or to a minor child or children only, and is ranked among the expenses of administration, to be preferred before all debts other than the exceptions made in sections 4048 to 4050, inclusive. By section^ 4043 a second year’s support may be had by the widow, provided she comes within the terms of that statute. One of the prerequisites is, that “there are no debts to pay.” It becomes material to inquire, therefore, whether there are “debts to pay” in this ease. The evidence shows that the widow herself has filed suits against the estate, amounting to several thousand dollars, for money claimed to be due her by the estate. It can not be held, at least at the instance of one asserting herself to be a creditor of the estate, that under these circumstances there are “no debts to pay.” It certainly was not the intention cf the statute to allow the widow, or widow and minor child or children, or minor child and children only, while there is pending litigation against the estate, by repeated applications year after* year, to exhaust the estate and thus defeat the purpose of the [696] will of the testator. It will be borne in mind that this is not a case of intestacy and pending litigation, where the estate is to be kept together until the litigation ends, or for other reasons. But this is a case where the testator has provided by will for the support of his widow. By the 3d item of his will he directs “that all the net income of my real estate, including notes and moneys, be equally divided between my wife, Mollie 0. Martin, and my son, Steven B. Martin, my wife to receive her part of the income as fast as collected during her natural life.” The plaintiff in error has already had one year’s support, amounting to $2,300. The first year’s support is intended for the purpose of providing for the necessities of the decedent’s family for twelve months, within which time the executor is required to collect the debts due to the estate and assent'to and turn over the legacies devised by the will. The record in the present case shows that the income from the property devised in item 3 of the testator’s will has been turned over to the widow. Whether this amount is sufficient for her support is not for our decision. But to hold that it is not, and that a year’s 'support can be set aside year after year, and thus exhaust the estate, would be to set aside her husband’s will, as said by Mr. Justice Simmons in the case of Hill v. Lewis, 91 Ga. 796 (18 S. E. 63). In that case, pp. 798-799, he said: “To allow a widow . to have the whole property set apart to her as a support for all the years she has lived on it, would be to allow her to set aside her husband’s will of her own volition, and to deprive the remaindermen of the provision left for them by their father. We are sure the law will not authorize such a proceeding.” The effect of such policy would be to consume the whole .estate before final distribution, which was never contemplated by the lawmakers, or by the testator. But it is insisted that under the ruling in the case of Woodbridge v. Woodbridge, 70 Ga. 733, although there are debts to pay, if there is still enough left over of the estate to supply the widow’s wants, she should be paid her second year’s support. The argument is, that the question at last is between the widow and the creditors of the estate. This view leaves entirely out of consideration legatees and remaindermen under the will, who certainly have rights—to say nothing of the testator’s intention. If no one were interested but the widow and the creditors of the estate,- this position might [697] be tenable, and especially when the widow was both the applicant for the year’s support and the creditor, as in the present ease; but it leaves entirely out of consideration the testamentary scheme and those who are interested as legatees or remaindermen under the will. It is further insisted that this court held in the Woodbridge case, supra, that the widow need not allege in her application that there are no debts to be paid, as‘that would be a matter of defense. We have examined the Woodbridge case, including the original record, and what was there said to the effect that “if the estate, under the facts, should prove sufficient to pay off the debts and also provide a reasonable support for the widow during the time the same may be kept together, then the widow is entitled to such allowance,” was obiter dictum. The statute is plain and unequivocal that the widow is entitled to the second year’s support under the condition named: “and there are no debts to pay.” We can not enlarge the statute beyond the limits prescribed by' the legislature. It is within their province, and not ours, to extend the provisions of the statute, if they so desire. Until such time as they see fit to do so, we must construe the statute as we find it. The record shows that there are debts to pay, relatively to the applicant in this case; and therefore the court did not err in directing a verdict for the defendant. Judgment affirmed. All the Justices concur.