Hardy v. Hardy , 143 Ga. 703 ( 1915 )

Beck, J.

1. This was a proceeding by which it was sought to subject certain property held by a widow for herself and as guardian of a minor child, which had been set apart to them as a year’s support, to an alleged indebtedness of her deceased husband. There was no indebtedness or liability directly from the widow or the child to the creditor, but he was an alleged creditor of the decedent. Property in the hands of one person can not be subjected to a general debt against another, unless such debt has been first reduced to -judgment, or unless there is a proceeding coincidently to reduce it to judgment. In the present instance there was neither a judgment against the administrator of the deceased person nor a proceeding to obtain a judgment; and without this there could be no subjection of the property which had been set apart as a year’s support to such alleged indebtedness of the decedent, whether the other contentions in regard to the manner of the setting apart of the . year’s support were good or not. Accordingly, it was error to overrule the demurrer to the petition.

2. This case differs from those in which it has been held that where there is no administration and the widow, being the sole heir, takes possession of the property, and there are no other debts than that sued on, the creditor of the decedent may maintain his suit against the widow; and it differs also from cases wherein, under the provision of § 3998 of the Civil Code, the creditor of the decedent is seeking to compel the' distributees to contribute pro rata to the payment of his debt. This statute last cited covers cases in which, without notice of an existing debt, the estate has been distributed to the heirs; and such are not the facts in the instant ease. Judgment reversed.

All the Justices concur.