Whitt v. Ketchum

10 S.E. 503, 84 Ga. 128

Opinion

Bleckley, Chief Justice.

The support contemplated by section 2571 of the code is that of the widow and minor children for twelve months. But if the allowance'be set apart, not severally to each member, but to the family as a whole, and al of it is not consumed, we think the residue, whether in money or property, stands over to be used afterwards by the widow and such of the children as continue minors, until there is no longer either widow or minor in the family. If the allowance be in land, it is not subject to partition, so long as there is either a widow or minor child to be supported. The land is subject to sale by the widow for the purpose of deriving a support from it for herself and any minor child, and this right she could not exercise consistently with the right of any of the children to have partition, so long as there is a minor child to be supported.

This view of the law is, we think, not only consistent with the scheme of the statute, but is harmonious with the cases heretofore decided by this court on the general subject, some of which are : Tabb v. Collier, 68 Ga. 641; Cleghorn v. Johnson, 69 Ga. 369; Steed v. Cruise, 70 Ga. 168; Woodbridge v. Woodbridge, 70 Ga. 733; Cheney v. Cheney, 73 Ga. 66 ; Stewart v. Stewart, 74 Ga. 355; Cox v. Cody & Co., 75 Ga. 175; Farris v. Battle, 80 Ga. 187; Broion v. Joiner, 80 Ga. 486.

It follows that there was no error in dismissing the proceeding for partition in the present case.

Judgment affirmed.