(Code 1981, §53-3-1, enacted by Ga. L. 1996, p. 504, § 10; Ga. L. 2020, p. 377, § 1-4/HB 865.)
Law reviews.- For article discussing decisions involving the year's support provision of the Georgia Code, see 3 Ga. St. B.J. 427 (1967). For article surveying recent legislative and judicial developments in Georgia's real property laws, see 31 Mercer L. Rev. 187 (1979). For article surveying legislative and judicial developments in Georgia's will, trusts, and estate laws, see 31 Mercer L. Rev. 281 (1979). For article surveying Georgia cases in the area of wills, trusts, and administration of estates from June 1979 through May 1980, see 32 Mercer L. Rev. 249 (1980). For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986). For annual survey article discussing wills, trusts, and administration of estates, see 51 Mercer L. Rev. 487 (1999). For survey article on wills, trusts, guardianships, and fiduciary administration for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006). For note, "Preventing Spousal Disinheritance in Georgia," see 19 Ga. L. Rev. 427 (1984). For note on 1991 amendment of former O.C.G.A. § 53-5-2, see 8 Ga. St. U.L. Rev. 216 (1992). For note on 1993 enactment of former O.C.G.A. § 53-5-1.1, see 10 Ga. St. U.L. Rev. 236 (1993).
COMMENTSubsection (a) carries forward subsection (a) of former OCGA Sec. 53-5-2. Subsection (b) carries forward former OCGA Sec. 53-5-1 and omits the 1979 effective date of the application of the year's support statute to widowers. This subsection also clarifies that both the spouse and the surviving minor children are entitled to year's support and uses the definition of year's support that appeared in former OCGA Sec. 53-5-2. The word "money" from that definition is omitted because the word is subsumed in the word "property". The omission is not intended to signal that money cannot be awarded. Subsection (c) carries forward former OCGA Sec. 53-5-1.1.
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Laws 1838, Cobb's 1851 Digest, p. 296, former Laws 1850, Cobb's 1851 Digest, p. 297, former Code 1863, § 2531, former Code 1868, § 2530, former Code 1873, § 2751, former Code 1882, § 2571, former Civil Code 1895, § 3465, former Civil Code 1910, § 4041, former Code 1933, § 113-1002, and former O.C.G.A. §§ 53-5-1 and53-5-2 are included in the annotations for this Code section.
Former O.C.G.A. Ch. 5, T. 53 was not unconstitutional, since former O.C.G.A. § 53-5-1 removed gender classification for year's support eligibility, and since the year's support statute when first adopted was not violative of the Constitution under court interpretations of that period. Adams v. Adams, 249 Ga. 477, 291 S.E.2d 518 (1982) (decided under former O.C.G.A. § 53-5-1).
Purpose.
- Prime purpose of this statute is to provide a suitable support and maintenance for the widow and minor children, if any, of a father who has died. The state gives the year's support a priority over all debts, even though reduced to judgment, and a priority over the taxes due the sovereign state. Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172, 165 S.E. 61 (1932) (decided under former Code 1933, § 113-1002).
Statute has for its purpose the joint support and maintenance of the widow and the minor children. It is based on considerations of public policy; and as the provisions of the statutes in reference thereto are to be construed in favor of the beneficiaries entitled to support, proceedings thereunder are to be construed in favor of the intended beneficiaries of the law. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002); Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951);(decided under former Code 1933, § 113-1002).
Beneficent purpose of the provision for a year's support is to see that the widow and minor children, upon the death of the husband and father, shall not be cut adrift, but shall have immediate relief by having set apart funds or property to carry them through the period of a year, taking into consideration the circumstances and standing of the family previous to the death of the husband, and also keeping in view the solvency of the estate. Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942) (decided under former Code 1933, § 113-1002).
Purpose of this statute is to provide a support for a limited period for those members of the family whom the deceased was, while in life, legally bound to support. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).
An award entered after the 1979 amendment of year's support statute, but from an estate of a decedent who died before the amendment, is valid. Lawrence v. Lawrence, 254 Ga. 692, 333 S.E.2d 610 (1985) (decided under former O.C.G.A. § 53-5-1).
When property is set apart to a widow and the widow's minor children the property is intended to be used for their joint support and maintenance. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).
Entitlement to a year's support award is a matter of status, and is established by demonstrating that the applicant belongs within one of the classes of intended beneficiaries codified in subsection (b) of former O.C.G.A. § 53-5-2. Gentry v. Black, 256 Ga. 569, 351 S.E.2d 188 (1987) (decided under former O.C.G.A. § 53-5-2); Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999);(decided under former O.C.G.A. § 53-5-2).
When one establishes that he or she is the spouse of the deceased, eligibility for year's support is also established. Gentry v. Black, 256 Ga. 569, 351 S.E.2d 188 (1987) (decided under former O.C.G.A. § 53-5-2).
Entitlement to the right to a year's support is a matter of status. It vests upon the death of the spouse. Wigley v. Hambrick, 193 Ga. App. 903, 389 S.E.2d 763 (1989), cert. denied, 193 Ga. App. 911, 389 S.E.2d 763 (1990) (decided under former O.C.G.A. § 53-5-2).
Year's support is designed to care for widow during the first year following her husband's death. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).
Award of property continues after the expiration of the year, so long as the property lasts, to be used for the support of the widow during her life and the children until the children are married or reach majority. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).
Personal items from the marital residence.
- Genuine issue of material fact existed as to whether certain personal items the executor demanded to be returned from a decedent's widow were taken from the marital residence and were thus included in the year's support awarded to the widow, making summary judgment improper. Rabun v. Rabun, 341 Ga. App. 878, 802 S.E.2d 296 (2017).
Year's support reflects public policy.
- Law does not require that a father provide for the support of his children after his death. Public policy, of course, favors the support of minor children by the father's estate after his death. Russell v. Fulton Nat'l Bank, 247 Ga. 556, 276 S.E.2d 641, overruled on other grounds, Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981) (decided under former O.C.G.A. § 53-5-2).
Courts favor year's support. Rakestraw v. Rakestraw, 70 Ga. 806 (1883) (decided under former Code 1882, § 2571); Cheney v. Cheney, 73 Ga. 66 (1884);(decided under former Code 1882, § 2571).
A year's support is an anomaly and special favorite of legislation and jurisprudence. Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).
Policy of the law is to protect this favored creature of the law and preserve the property or money set aside as a year's support for that purpose and none other. Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).
Year's support proceeds on the theory that a widow is entitled to it, regardless of everything else. Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1002).
Widow of a deceased person is entitled to a year's support out of his estate, whether he dies testate or intestate. Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1002); Saxon v. Aycock, 72 Ga. App. 728, 34 S.E.2d 914 (1945);(decided under former Code 1933, § 113-1002).
Hinge upon which right of year's support hangs is legal obligation to support during lifetime of deceased. The granting of a year's support is an extension of that obligation beyond the life of the person so obligated, thereby creating a debt of the estate as a necessary expense of administration. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).
Statutes to be construed liberally.
- Statutes providing for a year's support and fixing its priority are to be construed liberally in favor of the dependents. Olmstead v. Clark, 181 Ga. 478, 182 S.E. 513 (1935) (decided under former Code 1933, § 113-1002); Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945); Howard v. Howard, 150 Ga. App. 213, 257 S.E.2d 336 (1979) (decided under former Code 1933, § 113-1002);(decided under former Code 1933, § 113-1002).
Solvency of estate immaterial.
- Year's support provided for by statute will be allowed whether the decedent's estate is solvent or insolvent. Hopkins v. Long, 9 Ga. 261 (1851) (decided under former Laws 1850, Cobb's 1851 Digest, p. 297); Jackson v. Corbin, 39 Ga. 102 (1869); McNair v. Rabun, 159 Ga. 401, 126 S.E. 9 (1924) (decided under former Code 1868, § 2530);(decided under former Civil Code 1910, § 4041).
On the filing of caveats the appraisers may take the question of solvency into consideration when determining the amount of support. Aiken v. Davidson, 146 Ga. 252, 91 S.E. 34 (1916) (decided under former Civil Code 1910, § 4041); McNair v. Rabun, 159 Ga. 401, 126 S.E. 9 (1924);(decided under former Civil Code 1910, § 4041).
Right to support for widow and minor children is absolute. Brown v. Joiner, 77 Ga. 232, 3 S.E. 157 (1886) (decided under former Code 1882, § 2571); Swain v. Stewart, 98 Ga. 366, 25 S.E. 831 (1896); Miller v. Miller, 105 Ga. 305, 31 S.E. 186 (1898) (decided under former Civil Code 1895, § 3465); Goss v. Harris, 117 Ga. 345, 43 S.E. 734 (1903); Anders v. First Nat'l Bank, 165 Ga. 682, 142 S.E. 98 (1928) (decided under former Civil Code 1895, § 3465);(decided under former Civil Code 1895, § 3465);(decided under former Civil Code 1910, § 4041).
Right to support cannot be divested by a contingency occurring after the right accrues. Goss v. Harris, 117 Ga. 345, 43 S.E. 734 (1903) (decided under former Civil Code 1895, § 3465); Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972);(decided under former Code 1933, § 113-1002).
Right to support may be divested by agreement. Clark v. Emerson, 141 Ga. 612, 81 S.E. 870 (1914) (decided under former Civil Code 1910, § 4041); Bates v. Burden, 148 Ga. 157, 96 S.E. 178 (1918);(decided under former Civil Code 1910, § 4041).
Because the husband's petition for divorce was filed hours before his death, the paragraph of the parties' post-nuptial agreement that went into effect if one spouse filed for a divorce controlled and provided that the wife was entitled to one-half of the items listed on an exhibit and not a year of support as sought by the wife. In re Estate of Boyd, 340 Ga. App. 744, 798 S.E.2d 330 (2017).
Award of year's support may operate to defeat intentions of testator.
- Whenever a year's support is carved out of property disposed of by will, the intention of the testator is defeated pro tanto, and there seems to be no greater antagonism in setting aside as a year's support a part of property which the executors have been directed to keep together than there is in taking property away from a person to whom it has been devised or bequeathed and devoting it to a year's support. In either case, the right to a year's support overrides the testator's instructions. Burch v. Harrell, 57 Ga. App. 514, 196 S.E. 205 (1938) (decided under former Code 1933, § 113-1002).
Year's support may not operate to divest minor heir of interest in property.
- Considering both the benevolent purposes of the year's support law as well as the clear intent of other laws to protect the rights and claims of minors, the award of a year's support cannot operate to divest a minor heir of the minor's interest in property unless it appears that appropriate steps were taken to protect the minor's interest. Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970) (decided under former Code 1933, § 113-1002).
Year's support may be set aside for fraud. Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982) (decided under former O.C.G.A. § 53-5-2).
Cited in Cleghorn v. Johnson, 69 Ga. 369 (1882); Farris v. Battle, 80 Ga. 187, 7 S.E. 262 (1887); Maddox v. Patterson, 80 Ga. 719, 6 S.E. 581 (1888); McDowell v. McMurria, 107 Ga. 812, 33 S.E. 709, 73 Am. St. R. 155 (1899); Hill v. Van Duzer, 111 Ga. 867, 36 S.E. 966 (1900); Wright v. Roberts, 116 Ga. 194, 42 S.E. 369 (1902); Sexton v. Burruss, 144 Ga. 192, 86 S.E. 537 (1915); Jones v. Wilkes, 146 Ga. 803, 92 S.E. 517 (1917); Ellis v. Hogan, 147 Ga. 609, 95 S.E. 4 (1918); Phillips v. Cook, 158 Ga. 151, 123 S.E. 108 (1924); Federal Land Bank v. Henson, 166 Ga. 857, 144 S.E. 728 (1928); Grant v. Sosebee, 173 Ga. 98, 159 S.E. 672 (1931); Rooke v. Day, 46 Ga. App. 379, 167 S.E. 762 (1932); State Banking Co. v. Hinton, 178 Ga. 68, 172 S.E. 42 (1933); National City Bank v. Welch, 53 Ga. App. 528, 186 S.E. 596 (1936); Hill v. Hill, 55 Ga. App. 500, 190 S.E. 411 (1937); Redwine v. Frizzell, 184 Ga. 230, 190 S.E. 789 (1937); Parks v. Gresham, 185 Ga. 470, 195 S.E. 728 (1938); Sweat v. Arline, 186 Ga. 460, 197 S.E. 893 (1938); Minchew v. Juniata College, 188 Ga. 517, 4 S.E.2d 212 (1939); Harrell v. Burch, 195 Ga. 96, 23 S.E.2d 434 (1942); Jones v. Federal Land Bank, 196 Ga. 419, 26 S.E.2d 731 (1943); Fulcher v. Fulcher, 75 Ga. App. 480, 43 S.E.2d 588 (1947); Bush v. Reconstruction Fin. Corp., 79 Ga. App. 25, 52 S.E.2d 515 (1949); McDaniel v. Selman, 79 Ga. App. 259, 53 S.E.2d 391 (1949); Carroll v. Hill, 80 Ga. App. 576, 56 S.E.2d 821 (1949); Dorsey v. Georgia R.R. Bank & Trust Co., 82 Ga. App. 237, 60 S.E.2d 828 (1950); Smith v. Brogan, 207 Ga. 642, 63 S.E.2d 647 (1951); Harnesberger v. Davis, 86 Ga. App. 41, 70 S.E.2d 615 (1952); Holland v. Froklis, 89 Ga. App. 768, 81 S.E.2d 317 (1954); In re Engram, 156 F. Supp. 342 (M.D. Ga. 1957); United States v. First Nat'l Bank & Trust Co., 297 F.2d 312 (5th Cir. 1961); Samples v. Samples, 107 Ga. App. 788, 131 S.E.2d 584 (1963); Williams v. Ross, 228 F. Supp. 751 (N.D. Ga. 1963); Park v. Minton, 229 Ga. 765, 194 S.E.2d 465 (1972); Gibson v. McWhirter, 230 Ga. 545, 198 S.E.2d 205 (1973); Strickland v. Trust Co., 230 Ga. 714, 198 S.E.2d 668 (1973); Payne v. Bradford, 231 Ga. 487, 202 S.E.2d 422 (1973); Walker v. Smith, 130 Ga. App. 16, 202 S.E.2d 469 (1973); Barone v. Adcox, 235 Ga. 588, 221 S.E.2d 6 (1975); Clavin v. Clavin, 238 Ga. 421, 233 S.E.2d 151 (1977); Davenport v. Davenport, 243 Ga. 613, 255 S.E.2d 695 (1979); Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981); Nationwide Mut. Ins. Co. v. Walls, 546 F. Supp. 30 (S.D. Ga. 1982); Nationwide Mut. Ins. Co. v. Gay, 165 Ga. App. 293, 299 S.E.2d 611 (1983); Young v. Ellis, 250 Ga. 838, 301 S.E.2d 271 (1983); Hughes v. Hughes, 169 Ga. App. 850, 314 S.E.2d 920 (1984); Powell v. Thorsen, 253 Ga. 572, 322 S.E.2d 261 (1984); Gentry v. Black, 178 Ga. App. 284, 342 S.E.2d 729 (1986); Byrd v. McKinnon, 189 Ga. App. 768, 377 S.E.2d 686 (1989); State Farm Mut. Auto. Ins. Co. v. Day, 195 Ga. App. 823, 394 S.E.2d 913 (1990); Wynn v. Wynn, 202 Ga. App. 679, 415 S.E.2d 287 (1992); Baulding v. Turner, 208 Ga. App. 548, 430 S.E.2d 836 (1993); Cabrel v. Lum, 289 Ga. 233, 710 S.E.2d 810 (2011).
Application Generally
1. In General
When obligation is continuously recognized for two years preceding death without challenge by deceased, the deceased's estate is subject to debt of year's support. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).
Award of year's support to spouse upheld.
- When co-executors failed to include in the record on appeal the transcript of the hearing on the decedent's spouse's petition for a year's support and the order showed that the probate court properly considered a lump sum death benefit payment to the spouse from the decedent's employer, there was no basis in the record for the court to reverse an award to the spouse under O.C.G.A. § 53-3-1(c). In re Estate of Battle, 263 Ga. App. 73, 587 S.E.2d 140 (2003).
Denial of application of year's support upheld.
- Summary judgment in favor of a caveator, and against a wife, on the wife's application for year's support from the estate of the wife's decedent husband was properly denied as the wife opted instead to accept a $5,000 bequest from the husband's will in lieu of a year's support under a prenuptial agreement which was found to be valid, binding, and enforceable, and the wife failed to show any evidence of duress, coercion, fraud, misrepresentation, unconscionability, or changed circumstances which would have voided the agreement. Hiers v. Estate of Hiers, 278 Ga. App. 242, 628 S.E.2d 653 (2006).
Superior court's order reversing a year's support award in the amount of $30,000, along with title to a vehicle and antique furniture, and instead enforcing an oral agreement for an equal division of the assets of the estate after payment of all expenses was proper as: (1) the surviving wife failed to testify as to the amount of money needed to maintain the standard of living for a period of 12 months after the decedent husband died; (2) the wife presented no evidence of any income earned during the marriage; (3) no evidence documenting the wife's medical expenses incurred during the marriage was presented; and (4) the wife's testimony about the decline in the standard of living was relevant under O.C.G.A. § 53-3-7(c)(3), but provided little guidance to the court. Taylor v. Taylor, 288 Ga. App. 334, 654 S.E.2d 146 (2007), cert. denied, 2008 Ga. LEXIS 322 (Ga. 2008).
Denial of spouse's petition for year's support improper.
- Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383, 724 S.E.2d 797 (2012).
2. Arbitrary Exclusion of Minor Children
Arbitrary exclusion of minor children from application prohibited.
- To arbitrarily discriminate against the minor child under the application for 12 months' support, and so set apart to the widow the entire assets of an insolvent estate, is such as to render such action nugatory and void; and a judgment based on such action is void as a matter of law. De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933) (decided under former Civil Code 1910, § 4041).
When the appraisers assumed that it was not compulsory on them to set aside any portion of the estate for the benefit of the minor, who was, so far as the record shows, more dependent upon his father's estate for support and maintenance than the widow who received the entire net amount of the insolvent estate, the appraisers acted under a mistake of law causing the judgment thereby obtained to be set aside. De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933) (decided under former Civil Code 1910, § 4041).
When the entire estate is set aside to the widow alone, arbitrarily excluding any minor children by depleting the assets of the estate, the award of the appraisers to the widow must be disallowed. Collins v. Collins, 110 Ga. App. 569, 139 S.E.2d 459 (1964) (decided under former Code 1933, § 113-1002).
Vesting
1. In General
Applicability and purpose.
- Right to year's support by a widower is a vested right, superior to any encumbrances or debts or other legal entitlement of or to the estate, including bequests to legatees under a testate deceased; it is intended to protect the widow or widower and minor child and children even if the award overrides a testamentary bequest to another. Goodman v. Independent Life & Accident Ins. Co., 196 Ga. App. 783, 397 S.E.2d 56 (1990) (decided under former O.C.G.A. § 53-5-2).
Widow is entitled to a year's support to be set apart to the widow out of the estate of the widow's deceased husband, whether he died testate or intestate, and this right is absolute and is superior to all other claims against the estate, except as provided by law. Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940) (decided under former Code 1933, § 113-1002).
2. Vesting of Right to Year's SupportRight of widow of decedent to a year's support is a "vested" right, and the courts are jealous of any attempt to encroach upon it. Seiden v. Southland Chenilles, Inc., 195 F.2d 899 (5th Cir. 1952) (decided under former Code 1933, § 113-1002).
Statute permits separate portions of a decedent's estate to be set aside as year's support to the widow and to children of the deceased. Collins v. Collins, 110 Ga. App. 569, 139 S.E.2d 459 (1964) (decided under former Code 1933, § 113-1002).
Right to year's support vests upon death of deceased.
- Right to a year's support out of the estate of a deceased, which is given to the widow and minor children by statute, vests upon the death of the deceased. Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933) (decided under former Code 1933, § 113-1002).
Right to a 12 months' support vests immediately on death of decedent. Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858, 151 S.E. 796 (1930) (decided under former Civil Code 1910, § 4041).
Right to a year's support vests in a widow and minor children at the time of the death of the husband and father. Farmers Bank v. Williams, 188 Ga. 789, 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002); Seiden v. Southland Chenilles, Inc., 195 F.2d 899 (5th Cir. 1952);(decided under former Code 1933, § 113-1002).
Right to a year's support vests in the widow and minor children, if any, immediately upon the death of the husband. McDaniel v. Kelley, 61 Ga. App. 105, 5 S.E.2d 672 (1939) (decided under former Code 1933, § 113-1002).
3. Vesting of Title
Title to property set aside as a year's support vests in the widow and minor children; the interest of a minor in the title is not divested upon the minor's reaching majority, and upon the death of the widow, if she survives the minor's majority, and the majority of any remaining children, the minor is entitled to the minor's proportionate interest in such of the property as then remains unconsumed. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).
Year's support for a widow can be set apart to her only from the estate of her deceased husband; and if property included therein does not as a matter of fact constitute a part of his estate, the judgment of the court of ordinary (now probate court) simply will not attach to such property, but will be void as applied thereto. Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316 (1943) (decided under former Code 1933, § 113-1002).
Year's support can only be set aside from property interests which were a part of the decedent's estate at the time of her death. A judgment of the probate court is void as to any property set aside which was not a part of the decedent's estate at her death. Johnson v. Johnson, 199 Ga. App. 549, 405 S.E.2d 544 (1991) (decided under former O.C.G.A. § 53-5-2).
Widow receives such title as husband had.
- When property is set apart to a widow as a year's support she receives just such title as her deceased husband had, and acquires no greater title by reason of the setting apart to her. Stephens v. Carter, 215 Ga. 355, 110 S.E.2d 762 (1959) (decided under former Code 1933, § 113-1002).
All that the year's support award does is vest in the widow whatever interest, legal or equitable, that husband had in the property. Stephens v. Carter, 215 Ga. 355, 110 S.E.2d 762 (1959) (decided under former Code 1933, § 113-1002).
Year's support may be set apart out of any assets to which the husband or father had legal title at the time of his death. In addition thereto, property in which the deceased had an equity at the time of his death may be set aside for a year's support. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).
Provision for periodic payment from fund.
- When the appraisers of estate set aside as a year's support to the widow a sum of money in the hands of the husband's administrator, with the provision that the sum be turned over to the widow in periodic payments, no objection being filed to the return of the appraisers, absolute title to the fund vests in the widow from the time the return is made to the ordinary (now probate judge). May v. Braddock, 92 Ga. App. 302, 88 S.E.2d 539 (1955) (decided under former Code 1933, § 113-1002).
Award from trust.
- Even if no legal title remained in the decedent at her death, if her estate retained an equitable interest as beneficiary of the alleged trust, a year's support may include an award of such interest. Johnson v. Johnson, 199 Ga. App. 549, 405 S.E.2d 544 (1991) (decided under former O.C.G.A. § 53-5-2).
Title must be in decedent at the time of death in order for a year's support to be assignable from specified property. Scruggs v. Morel, 22 Ga. App. 93, 95 S.E. 316 (1918) (decided under former Civil Code 1910, § 4041).
Year's support may not attach to alienated property.
- Widow is not entitled to have a year's support set apart in land to which the husband during his lifetime conveyed all his title, since such year's support can only be set aside from property of the estate of the husband. Plowden v. Plowden, 47 Ga. App. 751, 171 S.E. 388 (1933) (decided under former Code 1933, § 113-1002).
A judgment of the court of ordinary (now probate court) allowing a year's support for the family of deceased will not attach to property which has been conveyed away by the deceased prior to his death and is no longer a part of his estate; the rule is the same as applied to the legal title, although the property was conveyed as security only. Richey v. First Nat'l Bank, 180 Ga. 751, 180 S.E. 740 (1935) (decided under former Code 1933, § 113-1002).
When the father of certain minor children made a deed conveying to them a lot of land already encumbered, and actually delivered the deed to them, they were not estopped, after the death of the father, from claiming a year's support out of the proceeds of the sale of the land under an execution in favor of certain creditors of the estate, by reason of the fact that the deed had been delivered to them and they had received it, and that therefore the land was no longer a part of the estate of the deceased father. Pierce v. J.A. Alford & Sons, 180 Ga. 327, 179 S.E. 84 (1935) (decided under former Code 1933, § 113-1002).
4. Unconsumed Property
Unconsumed property generally.
- General allowance from the estate of a decedent for a year's support, if not consumed during the year, will stand over for the support of the widow and minors afterwards so long as they are members of the family and fill this description. Children attaining majority or ceasing by marriage to be of the family, cannot, during that time coerce partition of land thus allowed and set apart, the whole land being charged with the support of the family. Whitt v. Ketchum, 84 Ga. 128, 10 S.E. 503 (1889) (decided under former Code 1882, § 2571).
Disposition of unconsumed property upon death of widow.
- Because the statute expressly states that the year's support for the family may be set aside on the application of the widow, when it is set aside, the provision so made inures to the benefit of the class named in the statute. Accordingly, a widow and three children, who are unmarried minors and members of the family at the time of their father's death, are vested with an undivided one-fourth interest each in the lands set apart under the year's support; and the interest which minors take under a year's support is not divested upon reaching majority; and after the widow's death such children are entitled to their proportionate interest in the unconsumed property; and the proportionate interest of the widow under the year's support goes to her heirs at law upon her death intestate. Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).
5. Lack of Administration No Bar to Vesting
Year's support not dependent upon qualification of legal representative.
- Right to a year's support accrues upon the death of the husband or parent, and not upon the qualification of the legal representative of the estate. Nixon v. Nixon, 196 Ga. 148, 26 S.E.2d 711 (1943) (decided under former Code 1933, § 113-1002).
Procurement of the year's support is not dependent upon an administration of the estate. Nixon v. Nixon, 196 Ga. 148, 26 S.E.2d 711 (1943) (decided under former Code 1933, § 113-1002).
Appraisers
1. Duties
Language of statute was mandatory, for the statute declares that it shall be the duty of the appraisers to set apart and assign "to such widow and children." De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933) (decided under former Code 1933, § 113-1002).
Duties of appraisers generally.
- When a widow makes application, for a year's support for herself and the minor child of the deceased husband by a former marriage, and the order of the ordinary (now probate judge) appointing appraisers directs them to set apart a year's support for the widow and minor child, it is the duty of the appraisers to set apart and assign to such widow and child a sufficiency for their maintenance and support for the space of 12 months from the date of administration, if there be such. De Jarnette v. De Jarnette, 176 Ga. 204, 167 S.E. 526 (1933) (decided under former Code 1933, § 113-1002).
On an application by a widow for a year's support the duties of the appraisers are purely ministerial. Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935) (decided under former Code 1933, § 113-1002).
2. Return
Award of the appraisers is prima facie correct, and the burden is on objectors to disapprove the award's correctness. Smith v. Smith, 115 Ga. 692, 42 S.E. 72 (1902) (decided under former Civil Code 1895, § 3465); Touchton v. Mock, 91 Ga. App. 689, 86 S.E.2d 699 (1955);(decided under former Code 1933, § 113-1002).
When appraisers have set aside a year's support to a widow, and a caveat thereto has been filed by the administrator of the estate, irrespective of whether the burden of proof rests on the widow or on the administrator, the return of the appraisers makes a prima facie case for the widow, and, in the absence of any evidence tending to show the circumstances and standing of the family before the death of the husband, or as to the solvency of the estate, a verdict in favor of the claimant sustaining the return of the appraisers is demanded as a matter of law. Wilson v. Wilson, 54 Ga. App. 770, 189 S.E. 71 (1936) (decided under former Code 1933, § 113-1002).
When the appraisers set aside, as a year's support to the widow, property valued at $300.00, and the only evidence in rebuttal of the presumption of the correctness of the year's support was that various sums of money from the sale of property of the estate had been paid to the widow by the administrator, and there was still unpaid an indebtedness against the estate of $150.00, and there was no evidence tending to show that the value of the property set aside as a year's support was in excess of the amount necessary for the support of the widow, estimated according to the circumstances and standing of the family previous to the death of the husband, although the property set aside may have consisted of all of the estate and no assets were left with which to pay the indebtedness, the evidence was insufficient to rebut the presumption of the correctness of the return of the appraisers. Wilson v. Wilson, 54 Ga. App. 770, 189 S.E. 71 (1936) (decided under former Code 1933, § 113-1002).
When excessiveness of the award of a year's support is the sole issue involved, the return of the appraisers is prima facie correct, the burden is upon the party disputing the return to show otherwise, and in the absence of evidence tending to show the circumstances and standing of the family before the testator's death or as to the solvency of the estate, a verdict sustaining the return is demanded as a matter of law. Bright v. Knecht, 182 Ga. App. 820, 357 S.E.2d 159 (1987) (decided prior to 1986 amendment of former O.C.G.A. § 53-5-2).
Caveat as remedy for incorrect or improper return.
- When objections to the return of the appraisers to set apart and assign a 12 months' support to the widow and children of a decedent have been filed and sustained, so as to have the effect of amending the return, the return of the appraisers and the judgment may be recorded, and will be effective to set apart as a 12 months' support the property or money included in the report as corrected and amended by the judgment. Davis v. City of Atlanta, 182 Ga. 242, 185 S.E. 279 (1936) (decided under former Code 1933, § 113-1002).
If, in making their return, the appraisers have acted upon insufficient or misleading information as to the property owned by the decedent at the time of decedent's death, or as to any other relevant fact upon which their return may in part be predicated, the law provides a remedy for any person whose legal rights may be injuriously affected thereby, by giving to such person the right to caveat the return; and, upon a trial of the issue thus raised before the ordinary (now probate judge), all the relevant facts may be developed by competent and legal evidence introduced for this purpose, and the return, if incorrect and improper, under the facts disclosed, may be corrected. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).
Return of appraisers not vitiated by mere irregularities.
- Mere irregularities, such as the number of minors being mistakenly stated in other portions of the proceedings, do not have the effect of vitiating the return of the appraisers in the year's support proceedings. Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).
Failure of the appraisers in year's support proceeding to take the prescribed oath is an irregularity which alone will not vitiate their return. Smith v. Smith, 187 Ga. 743, 2 S.E.2d 417 (1939) (decided under former Code 1933, § 113-1002).
Appraisers not required to place value upon property.
- It is not required by law, nor is it essential to the return, that the appraisers specifically find the value of the property, or in the return place a value upon the property. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).
Widow's right to a year's support is not affected by the appraisers' dereliction of duty for which the widow is not responsible. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).
Ordinary's (now probate judge) duty is ministerial, unless objections are filed to the return of the appraisers; but, when objections are filed, the ordinary discharges a judicial function in determining their validity. Shingler v. Furst, 52 Ga. App. 39, 182 S.E. 72 (1935) (decided under former Code 1933, § 113-1002).
Character of Award
Appraisers or jury to determine character of year's support.
- It is for the appraisers or the jury, as the case might be, to determine whether the year's support allowance should be in money to be charged to the property of the estate, or should be in property of the estate measured by money. Calhoun Nat'l Bank v. Slagle, 53 Ga. App. 553, 186 S.E. 445 (1936) (decided under former Code 1933, § 113-1002).
Widow is entitled to have a year's support allowance in property, instead of cash, unless the appraisers or the jury should determine to the contrary, and a year's support to a widow and children may be set apart from property of which their husband and father died possessed, to be estimated according to the circumstances and standing of the family previous to the death of their husband and father. Calhoun Nat'l Bank v. Slagle, 53 Ga. App. 553, 186 S.E. 445 (1936) (decided under former Code 1933, § 113-1002).
There is no provision of law by which the widow is bound to accept cash offered by the judgment creditors of her husband, in lieu of a year's support allowance, even though the amount offered is the amount at which the appraisers had valued the year's support allowance set apart by them. Calhoun Nat'l Bank v. Slagle, 53 Ga. App. 553, 186 S.E. 445 (1936) (decided under former Code 1933, § 113-1002).
The award of a year's support to a widow holding the security deed should be made of the equity of redemption as to the remainder interest, or of the remainder interest subjected to the outstanding security deed, rather than in the value of the remainder interest before deducting the debts against the estate. Strickland v. Miles, 131 Ga. App. 300, 205 S.E.2d 880 (1974) (decided under former Code 1933, § 113-1002).
Widow entitled to interest following delayed payment.
- When a cash award of a year's support to a widow could not be paid until four years after the judgment, the widow was entitled to interest from the date of the judgment. Clark v. Georgia R.R. Bank & Trust Co., 182 Ga. 472, 185 S.E. 716 (1936) (decided under former Code 1933, § 113-1002).
Inclusion of medical services in year's support authorized.
- If the circumstances of the decedent, and the standing of decedent's family during decedent's lifetime, were such as to warrant reasonable medical attention to the wife, in the event such were necessary, if such medical services are required by the widow during the year following the death of the husband, the medical services should be considered in fixing the amount to be allowed her as a year's support. Walraven v. Walraven, 76 Ga. App. 713, 47 S.E.2d 148 (1948) (decided under former Code 1933, § 113-1002).
Amount
Setting aside of whole estate valued in excess of $1,600.00.
- Statute, which requires that the whole estate, when the estate's value is $1,600.00 or less, be set aside for a year's support, does not inhibit the setting aside of the whole estate when the estate's value exceeds $1,600.00, and the question of whether or not the amount set aside by the appraisers is excessive is one of fact solely for the determination of the jury. Edwards v. Addison, 187 Ga. 756, 2 S.E.2d 77 (1939) (decided under former Code 1933, § 113-1002).
Theory of this statute is that the amount set aside be "a sufficiency from the estate for support and maintenance for the space of 12 months from the date of administration." Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).
Dependency.
- Amount to be set apart for a year's support is governed in part by dependency. Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).
Sufficiency estimated according to circumstances of family.
- Year's support to a widow and children may be set apart from property of which their husband and father died possessed, the same to be either in property or money, and to be "a sufficiency from the estate for their support and maintenance for the space of 12 months . . . estimated according to the circumstances and standing of the family previous to the death" of their husband and father. Lang v. Hopkins, 10 Ga. 37 (1851) (decided under former Laws 1850, Cobb's 1851 Digest, p. 297); Cheney v. Cheney, 73 Ga. 66 (1884);(decided under former Code 1882, § 2571).
Other support available.
- When the surviving wife had no other support available except welfare, which she had not sought, and her daughter's voluntary contributions from her own personal assets, such resources did not need to be weighed in the mix of the statute's contemplated "support available." Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).
Whole amount allowed the widow should be sufficient to support and maintain the widow, including necessary medical service, in keeping with the circumstances and standing of the family previous to the death of the husband; due regard being had to the solvency of the estate. Walraven v. Walraven, 76 Ga. App. 713, 47 S.E.2d 148 (1948) (decided under former Code 1933, § 113-1002).
Consideration of lifestyle prior to death.
- Upon the trial of an issue formed by a caveat to the return of the appraisers setting aside a year's support, evidence of the size of the estate and amount of property owned by the wife individually during the lifetime of the husband is immaterial and irrelevant. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).
An inquiry into the circumstances and standing of the family for the purpose of setting aside a year's support to the widow must be limited to the circumstances and standing of the family as affected by the estate of the deceased husband. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).
Evidence was insufficient to establish the fact that a passenger automobile sold to a widow (a sharecropper) was a necessity of life, so as to make funds set aside to her and her minor children as a year's support subject to an execution for the balance due on the purchase price of the automobile. Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).
In determining the year's support to be set apart for a beneficiary entitled to it, consideration should not be given to provision otherwise made for such beneficiary. Byrd v. Byrd, 223 Ga. 24, 153 S.E.2d 422 (1967) (decided under former Code 1933, § 113-1002).
One-time purchases, repairs, and expenses.
- Probate court was not forbidden by law to accommodate the need, in the year following testator's death, for one-time purchases, repairs, and expenses which would restore the testator's spouse's standard of living during marriage. Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).
Evidence of "cruel treatment" of decedent by widow.
- Probate court did not abuse the court's discretion in setting aside decedent's house and furnishings, where evidence of the widow's "cruel treatment" toward decedent was conflicting, and the mere fact that the court may have slightly miscalculated the widow's gross income or living expenses was of no consequence in light of the entire record. Bell v. Bell, 201 Ga. App. 218, 411 S.E.2d 47 (1991) (decided under former O.C.G.A. § 53-5-2).
Medical expenses.
- Provision for reasonable medical attention to the surviving spouse during the year following testator's death, when it is necessary and the circumstances and standing of the family before the death would warrant it, may be considered in fixing the amount of year's support. Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).
A $10,000.00 award for a year's support was not contrary to law and evidence, nor arbitrary and grossly insufficient, since the trial court did not abuse the court's discretion in the manner in which the court applied the statutory year's support determination methods of subsections (b) and (c) of former O.C.G.A. § 53-5-2. Baker v. Baker, 194 Ga. App. 477, 390 S.E.2d 892 (1990) (decided under former O.C.G.A. § 53-5-2).
Time period considered in determining standard of living.
- Court did not err in weighing into the balance the standard of living which the surviving wife was able to maintain during her marriage to the testator before the life-altering, terminal disability which deprived them both of their accustomed lifestyle since: (1) the statute does not limit consideration to the year before the death or any particular time other than "prior to the death of the testator or intestate"; (2) the right to year's support is founded on status, and the surviving wife enjoyed the status of spouse from 1972 to 1996; and (3) the court was not required to blind itself to the fact that the greatly reduced standard of living was occasioned by the very circumstance which rendered the surviving wife urgently needy in the 12 months subsequent to her husband's death. Driskell v. Crisler, 237 Ga. App. 408, 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2).
Since there was conflicting evidence as to the value of the widow's separate estate, the value of the property she was awarded as year's support, her needs, and her standard of living prior to her husband's death, the court did not abuse the court's discretion in making the award. McClure v. Mason, 228 Ga. App. 797, 493 S.E.2d 16 (1997) (decided under former O.C.G.A. § 53-5-2).
Jury authorized to increase or decrease appraiser designated year's support.
- When authorized by the pleadings and evidence in a trial de novo, the court should charge that the jury may find that the applicant is entitled to more or less than the appraisers designated as a reasonable year's support for the applicant. Hayes v. Hay, 92 Ga. App. 88, 88 S.E.2d 306 (1955) (decided under former Code 1933, § 113-1002).
On the retrial of a case in the superior court, the return of the appraisers may be changed or modified as to the amount of property set apart. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).
Jury's duty is to determine from the evidence how much would be a sufficiency from the estate for the widow's support and maintenance for the space of 12 months to be estimated according to the circumstances and standing of the family previous to the death and keeping in view also the solvency of the estate. Carter v. Carter, 139 Ga. App. 548, 228 S.E.2d 708 (1976) (decided under former Code 1933, § 113-1002).
Jury authorized to make general estimate as to value of property.
- Since it is not required that the specific property set aside as a year's support should be of any specific value, but only that it be a sufficiency, either in itself or when taken in connection with money, for the support of the applicants for one year, the jury, in setting aside specific property for a year's support, may, from the general nature and description of the property as it appears from the evidence, without any evidence otherwise as to its value, make a general estimate of the value of the property and determine its sufficiency as respects its value for a year's support. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).
Valuation of property.
- Verdict which sets aside as a year's support specifically designated property, each item of which is in the verdict specifically valued by the jury, together with a designated sum of money, is not, insofar as it estimates the value of the property set aside in a sum in excess of the estimated value of the same property contained in the return of the appraisers, invalid or without evidence to support it, in the absence of any evidence as to the value of the property. Daniel v. First Nat'l Bank, 50 Ga. App. 632, 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).
Court is not required in the court's written order to assign a monetary value to any property awarded. McClure v. Mason, 228 Ga. App. 797, 493 S.E.2d 16 (1997) (decided under former O.C.G.A. § 53-5-2).
Support of the family of a deceased person should be paid out of the general funds of the estate, without regard or reference to the solvency or insolvency of the estate. Matthews v. Manhattan Life Ins. Co., 55 Ga. App. 204, 189 S.E. 858 (1937) (decided under former Code 1933, § 113-1002).
Priority
Year's support is the highest claim against an estate, whether testate or intestate. Smith v. Sanders, 208 Ga. 405, 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).
Among the necessary expenses of administration is the provision for the support of the family of the deceased, which can be accomplished only by an application for a year's support and for each year thereafter that the estate is kept together. White v. Wright, 211 Ga. 556, 87 S.E.2d 394 (1955) (decided under former Code 1933, § 113-1002).
Year's support is on the same footing as expenses of administration, and is not subject to the law of distribution of estates or to debts against an estate, or liens against the property, except where it is made so by law. Robson v. Harris, 82 Ga. 153, 7 S.E. 926 (1888) (decided under former Code 1882, § 2571); Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930);(decided under former Civil Code 1910, § 4041).
Year's allowance is upon the footing of expenses of administration; indeed, a part of them. Smith v. Sanders, 208 Ga. 405, 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).
A 12 months' support is not a debt, but is an encumbrance higher than a debt. Barron v. Burney, 38 Ga. 264 (1868) (decided under former Code 1863, § 2531); Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858, 151 S.E. 796 (1930);(decided under former Civil Code 1910, § 4041).
Year's support is one of the necessary expenses of administration and is an encumbrance higher than any debt. Montgomery v. McCants, 49 Ga. App. 324, 175 S.E. 397 (1934) (decided under former Code 1933, § 113-1002).
Vesting of year's support to exclusion of other debts.
- Title to property set apart to a widow and child or children, in pursuance of the law, as a year's support for the family of the decedent, vests in the family to the exclusion of all debts, "except as otherwise specially provided" by law. Bank of Hampton v. Smith, 177 Ga. 532, 170 S.E. 508 (1933) (decided under former Code 1933, § 113-1002).
Allowance of a year's support from property belonging to the husband's estate is to be taken as higher than any debt and is to be regarded as a part of expenses of administration. Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942) (decided under former Code 1933, § 113-1002).
Although the law provides that the year's support is to be preferred above "all other debts," the provision for a year's support is not a debt at all, but is an encumbrance higher than any debt. Smith v. Sanders, 208 Ga. 405, 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).
Provision for the support of the family of the decedent is classed as one of the necessary expenses of administration, and is made for a class as a whole, and not for the benefit of one or some of that class. Ennis v. Ennis, 207 Ga. 665, 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).
The year's support takes precedence even of taxes due the state. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4041).
Claim of a widow for a year's support is superior to legacies given by her husband in his will. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).
Money set aside as a year's support cannot be subjected to the claim of creditors of the wife, other than those creditors who have provided or furnished the family with support or the necessities of life. Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).
Property received by the widow as a year's support is exempt from levy for any but debts created for her actual maintenance and support. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).
Property of a decedent may be sold free from a year's support only under the provisions of Ga. L. 1955, p. 731, § 1 by a sale or conveyance made under court order or under power contained in a will by the representative prior to the setting apart of such year's support. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).
Year's support superior to judgment for alimony.
- While a judgment for alimony, payable in monthly installments of money, creating a special lien on land may not be classed as an ordinary debt, being more than such a debt, it is a debt within the meaning of the law, providing that a year's support to the family of the deceased shall be "preferred over all other debts." Wainwright v. Morrow, 180 Ga. 120, 178 S.E. 155 (1935) (decided under former Code 1933, § 113-1002).
Priority status of year's support predicated on public policy.
- Year's support set apart to a widow and minor children takes precedence, not only over debts due by the decedent, but even of taxes which are due the state; and this is based upon a sound public policy looking to the protection of widows and children out of the estate of a decedent for the space of 12 months, and until such time as they may provide support for the future. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4041).
Title of widow subordinate to prior lien.
- When the decedent husband, under a foreclosure of his security deed, acquired title to the property subsequently set apart to his widow as a year's support, after the lien of a paving assessment had attached thereto, her title was subordinate to such lien of the city, and the court did not err in so holding. Paulk v. City of Ocilla, 188 Ga. 69, 2 S.E.2d 642 (1939) (decided under former Code 1933, § 113-1002).
Year's support is superior to liens created by the decedent, or liens arising by operation of law during the decedent's ownership, except for purchase money. Tomlinson v. City of Adel, 169 Ga. 758, 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4041).
While it is true that, except as to conveyances of title to secure debt, a year's support is superior to liens created by a decedent, or liens arising by operation of law during decedent's ownership, and the widow thus takes the interest of the decedent stripped of all such inferior claims, the title of the widow to the property set apart as a year's support is not superior to liens which had already adhered against the property before the decedent husband acquired the property. Paulk v. City of Ocilla, 188 Ga. 69, 2 S.E.2d 642 (1939) (decided under former Code 1933, § 113-1002).
While a lien arising by operation of law after one's death could hardly be a "debt" within the purview of former Code 1933, § 113-1002, it may be a "claim against the estate" within the meaning of former Code 1933, § 113-1508. Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316 (1943) (decided under former Code 1933, § 113-1002).
Management and Control
Widow, as the head of the family, is vested with the exclusive right to manage and control the property for the joint benefit of herself and minor children, and, after the marriage or majority of the children, for the benefit of herself alone for life, including the power to sell the entire interest in the property for such purpose. King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002); Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976);(decided under former Code 1933, § 113-1002).
If necessary, the property awarded to a widow and minor child may be consumed or exhausted, and so long as it lasts it will be subject to exclusive use by the widow during her life, after the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500, 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1002).
When realty is set aside as a year's support to a widow and three minor children, and all the minors have since attained their majority, the title is vested in them jointly, subject to the right of the widow to sell the entire interest for her maintenance and support. King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002).
When a year's support was set aside to the widow and three minor children jointly, the title thereto vested in them for their joint support and maintenance, and the other children had no interest therein. When the minor children married or attained their majority, the right of support and maintenance from the property set aside as a year's support belonged to the widow alone as long as she lives or the property lasted, and she was entitled to the property's use and control. She could sell the property for her maintenance and support. The children who have attained their majority have no right to participate in the property's consumption or its control. King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002).
Once the children attain their majority, title remains vested in them jointly, subject to the right of the widow to sell all or part of the property for her maintenance and support. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).
Widow may maintain suit to control property.
- Although property set aside as a year's support may have been set aside to the widow and minor children, the widow nevertheless has the right to control the property, and can, in her own name, maintain a suit in trover for the property's conversion. Philpot v. Ramsey & Hogan, 47 Ga. App. 635, 171 S.E. 204 (1933) (decided under former Code 1933, § 113-1002).
Power of widow to encumber property restricted.- Although the Georgia cases have held that when there is a widow and no minor children, complete title vests in the widow, the cases nevertheless restrict her power to encumber her year's support unless for actual need for her maintenance. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).
Widow as quasi-trustee of minor children.
- Under the right of the widow to dispose of property set apart for the support of herself and her minor children under her care, even without an order of court, she acts as the quasi-trustee of the minor children, who with herself are entitled to all of the support. She may thus not only lawfully sell, but lawfully execute a mortgage or security deed conveying the property to obtain funds for such support, or for the purpose of building or repairing a dwelling for herself and such children. Jones v. Federal Land Bank, 189 Ga. 419, 6 S.E.2d 52 (1939) (decided under former Code 1933, § 113-1002).
Award to widow and minor children made in gross.
- When an application for a year's support is made by a widow for herself and her minor child, the law contemplates that an award shall be made to such widow and minor child in gross, and not that awards shall be made to them separately; so that, although the legal title will vest in them share and share alike, the use of the entire property shall be a joint one for the support of both the mother and the child, and of neither to the exclusion of the other, so long as the widow lives and until the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500, 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1002).
When property is set aside in gross, the widow and minor children become owners in common, and share equally in the title. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).
Georgia law without doubt permits, and in some cases requires, separate portions of the estate to be set aside as a year's support to the widow and children of the deceased. Gale v. Stewart, 105 Ga. App. 767, 125 S.E.2d 694 (1962) (decided under former Code 1933, § 113-1002).
Child is not divested of the child's interest upon reaching majority while the widow is alive or while any of the child's siblings are still minors, even though the child is not entitled to the control or possession of the property or to any support therefrom. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).
Use and possession of a sui juris child's undivided interest is merely postponed to the child until the death of the widow and the reaching of age of majority of all the children. Tribble v. Knight, 238 Ga. 84, 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).
When all of the beneficiaries of a year's support cease to exist as such,
- any of the property set aside which may be unconsumed belongs to them or their heirs in common. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).
Testamentary disposition by widow of children's share prohibited.
- While the widow is entitled, after the child or children reach majority, to the possession of the entire property for her support and maintenance, and has the right to sell the property for such purpose, this does not include the power to give the children's share of the property to another by will. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 53-5-2 are included in the annotations for this Code section.
Payment of tax liability prior to award of year's support.
- Award of year's support cannot divest a tax lien which has already been paid in full and satisfied prior to the award. 1985 Op. Att'y Gen. No. U85-45 (decided under former O.C.G.A. § 53-5-2).
RESEARCH REFERENCES
Am. Jur. 2d.
- 31 Am. Jur. 2d, Executors and Administrators, §§ 662, 677 et seq.
C.J.S.- 34 C.J.S., Executors and Administrators, § 430 et seq.
ALR.
- Right of nonresident to widow's or child's allowance out of estate of one who was domiciled in state, 26 A.L.R. 132.
Bank deposit to credit of decedent or other indebtedness to him as subject to widow's or family allowance or other estate exemption, as affected by right of bank to apply deposit, or of other debtor to assert counterclaim or setoff, 108 A.L.R. 773.
Family allowance granted widow as payable from community interests of decedent and widow, 9 A.L.R.2d 529.
Effect of extrajudicial separation on surviving spouse's right to widow's allowance, 34 A.L.R.2d 1056.
Conclusiveness of statement or decision of accountant or similar third person under contract between others requiring property to be valued by him, 50 A.L.R.2d 1268.
Right of nonresident surviving spouse or minor children to allowance of property exempt from administration or to family allowance from local estate of nonresident decedent, 51 A.L.R.2d 1026.
Who is included in term "family" or "household" in statutes relating to family allowance or exemption out of decedent's estate, 88 A.L.R.2d 890.
Effect of testamentary gift on widow's right to fixed statutory allowance or allowance for support, 97 A.L.R.2d 1319.
Statutory family allowance to minor children as affected by previous agreement or judgment for their support, 6 A.L.R.3d 1387.
Waiver of right to widow's allowance by postnuptial agreement, 9 A.L.R.3d 955.
Eligibility of illegitimate child to receive family allowance out of estate of his deceased father, 12 A.L.R.3d 1140.
Right to partial distribution of estate or distribution of particular assets, prior to final closing, 18 A.L.R.3d 1173.
Family allowance from decedent's estate as exempt from attachment, garnishment, execution, and foreclosure, 27 A.L.R.3d 863.
Waiver of right to widow's allowance by antenuptial agreement, 30 A.L.R.3d 858.
Validity of inter vivos trust established by one spouse which impairs the other spouse's distributive share or other statutory rights in property, 39 A.L.R.3d 14.
Extension of time within which spouse may elect to accept or renounce will, 59 A.L.R.3d 767.