Opinion
32672.
DECIDED MARCH 3, 1950.
Appeal; from Meriwether Superior Court — Judge Boykin. June 29, 1949.
W. S. Allen, N. F. Culpepper, for plaintiff.
S. B. Wallace, for defendant.
The widow, by conveying the land in question to secure a debt for $1077, which included a $400 note for which the land had been conveyed by security deed by her late husband, waived her right to a year's support out of the land in question to the extent of the legal title conveyed, and she was estopped from claiming a year's support from the land to this extent, at least. If there is any equity of redemption in the land over and above the said indebtedness, it may be that she would have a right to a year's support therefrom, provided she has not otherwise estopped herself from claiming the same. In these circumstances, the judgment of the trial court granting a new trial for the applicant will be affirmed.
DECIDED MARCH 3, 1950.
L. H. Hatchett died testate in 1936. His estate consisted of land. His wife, Mrs. Annie S. Hatchett, was given an estate for life or widowhood, with the remainder to their six children. A. F. Hatchett qualified as executor of the will. In 1947 the widow applied to the Ordinary of Meriwether County for a year's support, and the appraisers set apart the land for her. A. F. Hatchett, as executor of the will, and acting for the heirs, legatees, and creditors filed a caveat alleging, among other things, that his father died seized and possessed of the land, and that applicant was barred from receiving the year's support because in 1936 she, together with her six children, executed and delivered to C. P. Daniel's Sons their promissory note for a certain sum and to secure its payment executed and delivered to the said C. P. Daniel's Sons a security deed conveying the said land. The case was not tried by the ordinary, but was appealed by consent of the parties to the superior court. The widow applicant died pending the suit, and Catherine Fain, executrix of her will, was made a party. The case proceeded to trial in Meriwether Superior Court. An amendment was allowed and filed by the caveator claiming estoppel of the applicant. The case came on for trial before the judge and jury. A. F. Hatchett, the caveator and only witness, testified that he was executor of the last will of L. H. Hatchett, and that the only property his father had at the time of his death was the 100 acres of land. He identified a $400 note and a security deed to this 100 acres of land, dated August 6, 1936, signed by his father, and payable to C. P. Daniel's Sons. He further identified a $1077 note dated October 30, 1936, signed by his mother, Mrs. Annie S. Hatchett, the applicant, and all her children, payable to C. P. Daniel's Sons, and also a security deed dated the same day conveying the 100 acres of land to C. P. Daniel's Sons to secure the payment of the note. He testified that the $1077 note and security deed was signed at the special instance and request of his mother, Mrs. Annie S. Hatchett, and the $400 note that his father had executed and delivered to C. P. Daniel's Sons in his lifetime was included in the $1077 note. The aforementioned notes and security deeds were tendered in evidence. Counsel for the applicant admitted in open court that the notes and security deed signed by the applicant and her six children had not been paid, and that the same was a valid and subsisting debt and that the security deed had not been satisfied. The applicant did not testify or introduce a witness, for after the caveator had put in his evidence he moved the court to direct a verdict on the ground that the deceased had no title to the property at the time of his death, and the court sustained that motion and directed a verdict in favor of the caveator. The applicant made a motion for a new trial, which was granted, and the caveator excepted.
We do not think that the facts of this case bring it within the rule stated in the cases cited by the plaintiff in error to the effect that a court of ordinary has no jurisdiction to determine conflicting claims of ownership of property arising between a widow applying for a year's support and a person asserting title adversely to the estate of her deceased husband. The fact that the title is collaterally involved does not deprive the court of ordinary of jurisdiction. See Johnson v. Blackshear, 196 Ga. 652 ( 27 S.E.2d 316). The title to the 100-acre tract of land here involved had been conveyed by security deed to C. P. Daniel's Sons by L. H. Hatchett before his death to secure a note for $400 and the note was unpaid and the title to the land was in C. P. Daniel's Sons at the time of the death of L. H. Hatchett. A year's support to the widow cannot be legally set apart out of land where the title is in a third party by virtue of a security deed made by the husband before his death, while the debt secured by such deed remains unpaid. Only the equity of redemption in such land could be set apart to the widow as a year's support. The widow of L. H. Hatchett was not entitled to a year's support out of the 100-acre tract of land in question while the said deed thereto and the $400 remained outstanding and unpaid. Said deceased had willed his property, consisting only of the 100-acre tract of land, to his wife for life and the remainder to his children. After the will was probated, the widow and the six children, including the executor, made another security deed to C. P. Daniel's Sons to secure a note for $1077, and the $400 note was included in and made up part of the consideration of the $1077 note. The widow by making this deed waived her right to a year's support to the extent of the legal title conveyed by her and the heirs to secure the amount stated in the security deed and she is now estopped to claim a year's support in this land to that extent, at least. Smalley v. Bassford, 191 Ga. 642 ( 13 S.E.2d 662).
If there is any equity of redemption in this tract of land over and above the indebtedness represented by the $1077 note and security deed, it may be that the applicant would be entitled to a year's support therefrom, if she has not otherwise estopped herself from claiming the same.
In these circumstances, the judgment of the trial court in granting a new trial will be affirmed.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.