Cole v. Elfe , 23 Ga. 235 ( 1857 )

By the Court —

Lumpkin, J.

delivering the opinion.

We differ from the Court below, in holding that the fan'i ily of the intestate were not entitled to a support out of the the assets of the estate, as against the mortgage lien of the Building and Loan Association. The Acts of 1838 and 1850, (Cob 296 and 298,) created this reservation for the maintenance of the widow and children, “ notwithstandii any debts, dues og obligations which the testator or intesta might owe.” S OSJ

■ What is the conflicting claim here, but a debt or obligation, secured by mortgage ? and one contracted too in tl e face of this most beneficent provision of the law. It is argued that by displacing the mortgage lien, you divest a verted right, whereas the very converse of the proposition , s true. Set aside this allowance and you do in truth divest a vested right, and one of which like the wife’s inchoate rigl d to dower, the husband cannot deprive her. The one is as perfect as the other, both being contingent upon the prii ? death of the husband for their consummation.

These statutes are abiding memorials of the wisdom an I humanity of the Legislature. We know of no condition t r. life more pitiable than to turn into the streets, without s, day’s preparation, the widow and offspring of one, upon whom they have relied for their daily bread, and to expose them to wretchedness, and perhaps inconceivable ruin, before they can find the means of support by their own labor. To fritter away these Acts, we should be faithless to our high vocation. Rather let us uphold them in all their amplitude. Credit is given in reference to them, consequently no one has a right to complain.

But we know of no adequate remedy at law, to enforce this right. And in the present case, we think the better, if not the only remedy is, to file a bill against the administrator, to compel him to execute the award made by the commissioners. The Loan Association may or may not be made a party at the option of the complainants. If made a party, it would be bound by the decree, and thus all further litigation would be prevented.

The complainants would be entitled of course to recover rent since the property has been withheld.

Judgment affirmed with directions.