Vandigrift v. Potts

72 Ga. 665

Opinion

Jackson, Chief Justice.

The year’s support set apart for a widow and children was in land. Several years after it was so set apart, she married and sold the land. The children having arrived at majority, sued for their portion of the land, as heirs at law of the father, and as entitled to their shares of the land so set apart. The jury, under charge of the court, found against them, and from the refusal of a new trial they excepted. The question is, can they recover ?

1. We think that the marriage of the mother made a complete change of the relation of the parties and the status of the case. Her eye was no longer single towards the children. Her affections were divided, and in a large measure another’s. This court decided that she could sell for herself and her children, to feed and clothe them, when necessary to sell in order to support the household.,

* but here that household is broken up ; the mother is married, and another head, a stranger to the children, takes possession ; and'the home is sold, and another is bought, and title to that is not in the mother and children, but in the new husband and wife.. Ho not her letters of administration abate if she marry ? Here there was no administration, except her administration of this year’s support for herself and children, the title, the right to a support out of it, being equally in her and in them, and she holding theirs in trust for their support, and if the income support them and her, for them in fee.' Ho not her letters, her right-to sell this property, abate ? We think it would be dangerous to uphold the sale, under these circumstances, and so rule.

■ 2. The defendant here bought fairly, paid full price. .The husband and wife have' land, - it appears in the record, bought with his money, paid for the land of these children; they have been supported in part, perhaps, out of this land so bought; there are equities all around; and therefore, whilst we reverse the judgment for the defendant, and grant a new trial, we do so with the intimation that a bill in equity, making this husband and wife, as well as these plaintiffs, parties defendants, may adjust the equities between all concerned,- so as better to subserve the ends of justice than a naked issue between the present plaintiffs and the defendant..

Judgment reversed.

69 Ga., 369, and citations.