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Petition for injunction. Before Judge Lilly. Colquitt Superior Court. October 5, 1953.
WORRILL, Justice.
Where property is set apart as a year's support for the benefit of the widow alone, the fee vests in her, and she can make a testamentary disposition of the unconsumed portion thereof; and, accordingly, the petition of another seeking to recover an interest in the property as an heir at law, failed to set forth a cause of action.
Mrs. Rubye S. Hiers filed in Colquitt Superior Court, against W. E. Striplin and R. E. Striplin, Jr., a petition which alleged substantially the following: The petitioner is the daughter and the defendants are sons of R. E. Striplin, who died intestate May 12, 1945, and the above stated parties together with their brother were his sole heirs at law. At the July, 1945, term of the ordinary's court the entire estate, consisting of the 140-acre home place and all the personal property connected therewith, was set aside to their mother as a year's support. In the fall of 1952 she leased the land to a named person for the year 1953, and the tenant gave her a rent note for $700. Mrs. R. E. Striplin, the mother of petitioner and the defendants, died February 13, 1 953, leaving as her sole heirs at law the above stated parties. Upon her death the petitioner and defendants became tenants in common of the lands and joint owners of all personalty set aside in the year's support. All parties to the case are non-residents, and a receiver should be appointed to take charge of the personalty and to collect the rent note at maturity. On February 16, 1953, the defendant W. E. Striplin filed for probate an alleged will purporting to have been made by Mrs. R. E. Striplin, in which she attempted to devise and bequeath to her son R. E. Striplin, Jr., all of the realty and personalty set apart to her under the year's support, which case is now pending. The testatrix was without authority in law to devise or bequeath any property arising out of the year's support, and the devise to R. E. Striplin, Jr., is void. A fair and equitable division of the realty and personalty cannot be made and a sale with an equitable division of the proceeds is necessary. The defendants are insolvent, and equitable relief is necessary to avoid a multiplicity of actions. The petitioner prayed: that process issue; that a receiver be appointed and an accounting had; that the defendants be enjoined from changing the status of the property that a declaratory judgment be rendered finding that the petitioner and the defendants are tenants in common of the realty and joint owners of the personalty; that a sale of the realty and personalty be decreed and, after an accounting, that the proceeds be equitably divided; and that the petitioner have general equitable relief.
The defendants filed to the petition a general demurrer, which the trial judge sustained and dismissed the action, and the petitioner excepted.
"Where property is set apart as a year's support for the benefit of the widow alone, she shall thereafter own the same in fee, without restriction as to use, encumbrance or disposition." Ga. L. 1937, p. 861; Code (Ann. Supp.) 113-1023. Title to property so set apart to the widow alone vests absolutely in her (Code 113-1006; Smith v. Smith, 187 Ga. 743, 745, 2 S. E. 2d 417), and her right to a year's support survives her death. Smith v. Sanders, 208 Ga. 405 (67 S. E. 2d 229).
Counsel for the plaintiff in error recognizes the above principles, but insists that a widow can not devise her unconsumed portion of a year's support, because the whole theory of the statute is based on the Biblical-injunction to protect the widow while in life; and that after her death the general laws of descent and distribution should take effect as to any unconsumed portion thereof. Walden v. Walden, 191 Ga. 182 (12 S. E. 2d 345), cited and relied on by both sides, involved property that was set aside to a widow and one minor child. The child became of age, and thereafter the widow died leaving a will wherein she undertook to devise the property to another son. This court properly held that the widow could not give to another by will the former minor's interest in the property. However, as pointed out in that decision, the property did not revert to the estate of the deceased husband, and the language used on p. 192, that "we reach the view under the authorities, that when all of the beneficiaries of a year's support cease to exist as such, any of the property set apart which may be unconsumed belongs to them or their heirs in common," does not require a finding, as contended, that, where property is set apart as a year's support for the benefit of the widow alone, she can not make a testamentary disposition thereof.
It follows that a widow in the above circumstances can devise property set apart for her benefit alone. Accordingly, the petition of a child, who was sui juris at the time the property was set apart, seeking to recover an interest as an heir at law, failed to set forth a cause of action, and the trial judge did not err in dismissing the action on general demurrer. See Redfearn on Wills (Rev. ed.) 528, 292; 21 Am. Jur. 561, 317.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., not participating.
Hoyt H. Whelchel, Hoyt H. Whelchel, Jr., contra.
P. Q. Bryan, for plaintiff in error.
Saturday May 23 03:38 EDT

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