Hartley v. Smith , 152 Ga. 723 ( 1922 )

Fish, C. J.

(After stating the foregoing facts.) The entire estate of 'the decedent, Hartle3q was set apart as a year’s support to his widow and minor children, “ after all the just debts are paid.” The judgment of the court of ordinary setting aside a year’s support, in which the language quoted appears, did not and could not legally impose upon the widow and the other beneficiaries of the year’s support any liability to pay the debts owing by the estate of the decedent. Of course the widow could, if so minded, have voluntarily discharged all the debts of her deceased husband’s' estate, and have taken it in its entirety, relieved from any liability. It is true that under the terms of the report of the appraisers and the judgment of the court of ordinary she and the children tooJc the entire estate after the payment of all of its just debts; that is, all the just debts had to be discharged before the beneficiaries of the year’s support could take the entire estate. And an administrator could have been appointed of the estate, whose duty it would have been to pay all of the just debts from the assets of the estate received by him, and whatever assets of the estate remained after the payment of the just debts and the expenses of administration would have gone to the widow and minor children as their year’s support. This procedure, however, was not followed; but the receivers of the bank, which they claim held the debt against the estate of the intestate for the sum of $300 owing by the decedent at the time of his death,' as a balance of unpaid subscription on the five shares of stock, brought this action against Ms widow as a debt due by her by reason of the fact that her husband owed it, and that the bank upon her solicitation had issued to her a certificate for the five shares of stock for which her husband held a like certificate at his death. The bank demanded the exhibition to it of the certified copy of the year’s support proceedings, before it would issue to her a certificate. The bank therefore had actual notice, from the copy of the proceedings exhibited to it, that only an interest to the amount of $300 had been set aside to the widow and children in the five shares of stock owned by the decedent. The widow did not expressly or impliedly agree or promise to pay the bank anything for the issuance by it to her of a certificate. It follows, that, whatever claim the bank may have against the estate of the decedent, it has no cause of action against the widow, upon which a general judgment could be obtained against her.

Our conclusion is that the judgment of the majority of the division of the Court of Appeals which affirmed the judgment of the trial court was error.

Judgment reversed.

All the Justices concur, except Beck, P. J., dissenting.