McNair v. Rabun

Hines, J. (After stating the foregoing facts.) A widow is entitled to a year’s support out of the estate of her husband, dying testate or intestate, and leaving an estate solvent or insolvent; and such year’s support is “to be preferred before all other debts, except as otherwise specially provided.” Civil Code (1910), § 4041. The husband can make no disposition of his property by will which will defeat the year’s support of his widow. This is so even where the husband in his will gives to his widow a life-estate in all his property, real and personal. Kinard v. Clay, 138 Ga. 544 (75 S. E. 636); Chambliss v. Bolton, 146 Ga. 734 (92 S. E. 204). It is true that a testator may, by his will, make provision in lieu of year’s support; and where such provision is accepted by the wife after the husband’s death, her year’s support will thereby be barred. Bass v. Douglas, 150 Ga. 678 (104 S. E. 625). Where a husband makes provision in his will in lieu of a year’s — 408 — support to which his widow is entitled, the election of the widow to take such provision or to apply for a statutory year’s support is governed by the same rules which regulate her election of dower. Civil Code (1910), § 4045. An election by the widow to take a child’s part in realty, in ignorance of the condition of the estate or of any fact material to her interest, does not bar her right to dower, unless the rights of third persons, acting bona fide upon her election, are disturbed or prejudiced. Civil Code (1910), § 5251; Tooke v. Hardeman, 7 Ga. 20. “If she elect between dower and a provision in lieu thereof or a child’s part of the realty in ignorance of the condition of the estate, she is not bound thereby, unless such election of dower would have the effect of prejudicing or disturbing rights acquired bona fide by third persons in consequence thereof.” Austell v. Swann, 74 Ga. 278. So if the testator makes provision for his widow in lieu of year’s support, and she elects to take such provision in lieu of such support, she is not bound by such election, if made in ignorance of the condition of his estate or of any other fact material to her interest. In the instant case, it appears from the undisputed evidence that the estate of testator was insolvent at the time of his death, or became so afterwards. The cause of the insolvency, according to the contention of plaintiffs, was due to carving out of the estate the year’s support granted to the widow, and by a slump in the value of the real estate of decedent. Anyway, the estate failed to pay the debts due by testator by the large amount of $15,000. The fair inference to be drawn from the evidence is that the estate was insolvent when the testator died and at the time the widow elected to take the testamentary provision in lieu of a year’s support, and that this election was made in ignorance of the fact that the estate was insolvent. This being so, the widow was not bound by her election from afterwards applying for a year’s support out of the estate of testator. But the plaintiffs contend that the title to the tract of land, on which the timber involved in this litigation is situated, had passed out of the estate of testator and had vested, by assent of the executor to the legacy, in the life-tenant for life, and into them as remaindermen; and that for this reason the court of ordinary was without authority and jurisdiction to set aside a year’s support in this land to the'widow. In passing upon this contention it is to be borne in mind that this tract of land did not constitute a portion — 409 — of the property which the testator devised to his wife in lieu of a year’s support and dower. Under the fifth item of the will, this tract was devised to the wife for and during her natural life, with remainder over at her death to testator’s brother, E. C. McNair, if' livihg, and if he were dead leaving child or children, to such child or children, who were to take per stirpes in lieu of their deceased parent. It is true that the assent by the executor to the legacy bequeathed to the life-tenant inured to the benefit of the remainder-men. Civil Code (1910), § 3895; Watkins v. Gilmore, 121 Ga. 488 (2) (49 S. E. 598); Toombs v. Spratlin, 127 Ga. 766 (4) (57 S. E. 59); Almand v. Almand, 141 Ga. 372 (2) (81 S. E. 228); Moore v. Turner, 148 Ga. 77 (95 S. E. 965). Generally the assent of the executor to a legacy in land or other property is irrevocable; and after the assent has been given and the inchoate title of the devisees has been thus perfected, the property so devised is no longer a part of the estate and can not be sold by the executor under an order of the court of ordinary authorizing its sale, because such order is void for want of jurisdiction. Watkins v. Gilmore, Moore v. Turner, supra. In such a case, if the assets of the estate are insufficient to pay debts, the creditors of the estate can follow the property devised into the hands of devisees and subject it to the payment of their claims. By analogy it is sought to apply this principle to bar a widow from having set aside to her a year’s support in land devised to her for life, with remainder over, where other 'property had been given her by her husband by his will in lieu of dower and year’s support, and when she had elected to take such devise in lieu thereof, in ignorance of the fact that the estate was insolvent, which rendered the legacies worthless. We do not think that this state of facts would deprive the court of ordinary of jurisdiction to set apart to the widow a year’s support, nor do we think that the judgment of the court of ordinary setting apart the same would be void for lack of jurisdiction. While the Code declares that a year’s support is “to be preferred before all other debts,” the claim of a widow to such support out of the estate of her deceased husband is not, strictly speaking) a debt due her by the estate. It is an “incumbrance higher than any debt.” Barron v. Burney, 38 Ga. 264, 269; Goss v. Harris, 117 Ga. 345, 347 (43 S. E. 734). “The provision for year’s support is a branch of the statute of distributions, and ‘the persons entitled to it are just as — 410 — much and as absolutely entitled as they are, in .case of intestacy, to a distributive share of the residue after the year’s support is deducted and all debts are paid. It is a branch of the statute of distributions, and prescribes how the estate of a deceased person, to this extent, is to be disposed of. Creditors are left out, and adult children are left out, until this much of the estate is withdrawn from it; then they are admitted for participation in the balance. They have no right to anything except by the statute of distributions.” Farris v. Battle, 80 Ga. 187 (7 S. E. 262); Phelps v. Daniel, 86 Ga. 363, 366 (12 S. E. 584); Swain v. Stewart, 98 Ga. 366 (25 S. E. 831); Jones v. Cooner, 142 Ga. 127, 129 (82 S. E. 445). The claim of a widow is likewise superior to legacies given by her husband in his will. Kinard v. Clay, Chambliss v. Bolton, supra. As soon as the husband dies, whether. testate or intestate, his widow acquires, by the statute of distributions, a vested interest in his estate for a year’s support, which interest is superior to all claims of creditors, legatees, or .adult children of the deceased. “Whenever a right by law has attached by reason of widowhood, there must be some law by which it is divested, or it will remain.” Swain v. Stewart, supra. This vested interest to a year’s support .in the estate of her husband is not defeated where she elects to take property given her by him in his will in lieu of a year’s support and dower, where her election is made in ignorance of the fact that the estate is insolvent and the property so given to her will be swept away in order to pay the debts of the testator. Such ineffectual election will not bar the widow from afterwards having set aside a year’s support in the property so expressly given to her in lieu of year’s support and dower, and in other land devised by the testator to her for life with remainder to others. While the assent of the executor to the legacy bequeathed to the life-tenant inured to the benefit of the remaindermen and vested the title to the property in the life-tenant and remaindermen, such vesting of the title was defeasible by reason of the fact that the election of the widow to take property given her by her husband in his will in lieu of a year’s support was in ignorance of the insolvency of his estate, and such devise proved to be wholly ineffectual to afford her such support. Being still entitled to a year’s support, the court of ordinary had jurisdiction to have such year’s support set apart to — 411 — the widow in the property so bequeathed to her for life, with remainder over. Civil Code (1910), § 4041. When such property was so set apart, the title thereto vested in the widow. Civil Code (1910), § 4044. The life-estate of the widow in this land under this devise was thus merged into a legal estate in fee. Lowe v. Webb, 85 Ga. 731 (11 S. E. 845); Goodell v. Hall, 112 Ga. 435 (37 S. E. 725). The title to this land which vested in the remainder-men by the assent of the executor to the legacy to the wife for life was thus divested and defeated by the judgment of the court of ordinary setting apart this land to her as a year’s support; and the judgment of the court of ordinary so setting apart said year’s support was not void for lack of jurisdiction. A contrary holding would wholly defeat the widow’s right to such support in case of a fruitless election. As we have seen, the court of ordinary has exclusive jurisdiction in setting apart to a widow a year’s support out of the estate of her husband who died testate or intestate; and such year’s support is superior to any claim of legatees under his will. When the widow applied for a year’s support and the appraisers made their return awarding to her the same, embracing the land on which the timber in dispute is located, the administrator caveated said return. Among other grounds of caveat, he set up that the husband in his will had given the widow certain property in lieu of a year’s support and dower, to which legacy the executor had assented; that, with full knowledge of the condition of the estate, the widow accepted in lieu of dower and year’s support all the property bequeathed to her in lieu of these claims; that she had enjoyed the profits thereof ever since the death of testator; and that with such knowledge she had accepted from the executor-the land on which the timber in question was located, and which had been devised to her for life, with remainder over to plaintiffs; that she took possession thereof, bad received the rents and profits thereof for the years 1920, 1921, and 1922, and had lived upon the same.. On the hearing the court of ordinary found against all grounds of caveat, and made the return of the appraisers the judgment of the court. The administrator appealed to the superior court, in which a jury found in favor of the widow. Judgment was thereupon rendered, making the return of the appraisers the judgment of that court. In that proceeding the administrator with the will annexed represented — 412 — the plaintiffs in the instant case. Both the court of ordinary and the superior court had jurisdiction to determine whether the widow was entitled to a year’s support in the land on which this timber was located, and the question whether the widow was debarred from claiming a year’s support in this land because of her acceptance of the legacies given her in the will of her husband. . It was likewise a question for determination by these courts whether the widow accepted the legacies given in lieu of dower and year’s support in ignorance of the insolvency of the estate at the time she made her election. Both courts having jurisdiction of the subject-matter and both having decided in favor of the right of the widow to this year’s support, we think the plaintiffs are concluded by this judgment, the same not being void for want of jurisdiction in either court. Plaintiffs can not now reopen the question whether the widow’s election to accept the testamentary provision in lieu of her year’s support was made in ignorance of the condition of the estate, or whether it was made with knowledge of the condition of the estate. This question was made and decided against them both in the court of ordinary and in the -superior court; and they are now estopped to have the question again decided in this proceeding. The plaintiffs further insist that the widow is barred by the decree rendered in the ease brought in the superior court by Babun as next friend for these minor children, to enjoin her from cutting the timber on this land, in which case a judgment perpetually enjoining her from so doing was rendered. In that case the plaintiffs were asserting title to this land as remaindermen, and the widow was setting up title thereto for life under the legacy in the will hereinbefore’ set out. In that case it was adjudged to be a waste by the life-tenant to cut the timber; and this being so, she was perpetually enjoined as a life-tenant from cutting it. At that time she had not applied for a year’s support, and none had been set aside to her, embracing this land. The subject-matter of that suit was not the same as the subject-matter of this suit. In that suit it was adjudged that the widow, as a life-tenant, had no right to cut and remove this timber. The judgment in that suit, to be binding upon the widow in this suit, must'have been an adjudication of the same subject-matter. Civil Code (1910), § 4335; A. judgment is conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might — 413 — have been put in issue in the cause wherein °tlie judgment was rendered. Civil Code (19Í0), § 4336. The right of the widow to a year’s support was not put in issue and could not have been put in issue in that case. The subject-matters of the two suits are different. Therefore the judgment in the former ease is not binding upon the widow in this case. The plaintiffs next insist that the widow’s election to take the provision given her in the will in lieu of her year’s support bars' her right to such support, because their rights as remaindermen will be prejudiced by her now having such support set apart in this land. By making her election in this matter, even where she does so in ignorance of the condition of the estate, or of some fact material to her interest, the widow will be barred, if “the rights of third persons acting bona fide upon her election” will “be disturbed or prejudiced.” Civil Code (1910), § 5251. Legatees do not fall within the class of persons designated in this section. The fact that their legacies will be destroyed by setting aside to the widow a year’s support is not sufficient to bar the widow. This section refers to purchasers and others, who for value and in good faith acquire title or some interest in the property of the estate, sought to be set aside as a year’s support. Nor does the fact that the legatees, while the widow claimed this land as life-tenant and they claimed it as remaindermen, under the will of the testator, paid counsel to bring a proceeding to enjoin the widow as life-tenant from cutting the timber on this land, in which they were successful, bring them within this class of persons. In view of the rulings above made, we think that the trial judge erred in granting the injunction, and that his judgment should be reversed. Judgment reversed. All the Justices concur, except