Stewart v. Stewart

74 Ga. 355, 1884 Ga. LEXIS 383

• Court: Supreme Court of Georgia
• Decided: December 2, 1884
• Status: Published

Opinion

Hall, Justice.

[Laura Stewart brought an action of ejectment against Amy Stewart. The plaintiff’s title depended on the setting apart to her of the property in dispute as a year’s support from the estate of her deceased husband. It appeared that upon his death, leaving a widow and no minor children, she applied for a year’s support, and the ordinary appointed appraisers for that purpose, stating in his order so appointing them, that if, upon a just appraisement, they should determine that the entire estate was not worth above $500.00, they were “ authorized and directed ” to set aside the entire estate as a year’s support. The appraisers found that the value of the estate 'was less than $500.00, and set it aside as a year’s support for the widow. No objection was filed to their return, and it was duly entered of record. On the close of the plaintiff’s testimony, the defendant moved for a non-suit, which was refused, and the decision of the case was adverse to him. By his bill of exceptions, he made two points in respect to the refusal of the non-suit and the charge of the court:

(1.) That a widow, without a minor child, is not entitled, under the law, to have the entire estate of her deceased husband, when it is less than five hundred dollars, set apart to her as a year’s support, but is entitled to only a reasonable support out of the same, to be j udged of by the .appraisers.

(2.) That the order of the ordinary appointing the appraisers, by its terms, took away from them all 'discretion as to the amount to be set apart as a year’s support, in case they should find the value of the estate to be less than five hundred dollars, and required them to set apart the whole of it for this purpose.]