Opinion
35594.
DECIDED APRIL 18, 1955.
Year's support. Before Judge Perryman. Glascock Superior Court. September 21, 1954.
J. D. Godfrey, Casey Thigpen, for plaintiff in error.
Stevens Stevens, contra.
The caveat of the administratrix of a widow, who had applied for a second year's support, to the application of the administratrix of the defendant ceased husband for leave to sell the lands of his estate, failed to allege any valid reason why the leave to sell the lands should not be granted insofar as the interests of the widow's administratrix were concerned, and the superior court on appeal did not err in sustaining the motion to dismiss the caveat as amended.
DECIDED APRIL 18, 1955.
Mrs. Minnie Peebles May applied to the Court of Ordinary of Glascock County for a second year's support from the estate of her late husband, John V. May. Pending this application Mrs. Minnie Peebles May died.
Mrs. Alma May Braddock, as administratrix of the estate of John V. May, applied to the same court of ordinary for leave to sell land belonging to the estate of John V. May.
Mrs. Viola A. May, as administratrix of the estate of Mrs. Minnie Peebles May, filed a caveat to the application for leave to sell land. This caveat was overruled by the court of ordinary, and an appeal was made to the superior court. In the superior court the caveat was amended, an oral motion to dismiss the amended caveat was sustained and the caveat dismissed, and Mrs. Viola A. May excepts.
The caveat as amended was as follows: "1. That the estate of said deceased John V. May owns no real estate or any other property; that said deceased departed this life on May 19, 1951, leaving a will in which he willed all of his property to his wife Mrs. Minnie Peebles May for life, with remainder over to his children; that the said widow is now deceased and title to all property of the late John V. May has vested, under the terms of the will, in his children, subject to the rights of the widow to a second year's support, application for a second year's support having been made by the widow in her lifetime, and her administratrix is now seeking to have same set aside. 2. That the will of the said John V. May has been duly probated and the estate closed and his executor duly discharged, and the appointment of Mrs. Alma May Braddock, as administratrix was useless and a nullity, as there is now no estate of the deceased, John V. May, to be administered upon. 3. The alleged estate of John V. May owes no debts; the debts of the late Mrs. Minnie Peebles May, for board, nursing, hospital, medicine, doctor, funeral expenses and all other bills contracted since the death of the said John V. May, are not the debts of the estate of John V. May, but the estate of Mrs. Minnie Peebles May, and the estate of said Mrs. Minnie Peebles May should be given a second year's support for the purpose of paying said debts. 4. Caveator further shows that the debts of the estate of John V. May having been paid, that the title to the property is in the heirs of said John V. May under the terms of said will, and his executor having been discharged, the administratrix of the estate of John V. May has no right to sell the same for the purpose of paying debts or making distribution, and the said Mrs. Alma May Braddock, as administratrix, has no concern thereon or therewith, and for these reasons said application should be refused. 5. That under the will of the late John V. May, his widow, Mrs. Minnie Peebles May, was bequeathed a life-estate in his property, however, said widow never did go into possession of said property, nor reside upon property of said estate, and that said widow did not take under the will of said John V. May, but elected to take a year's support, and has already applied for and obtained one year's support; that said widow was not executrix upon [the] estate of John V. May and had nothing whatever to do with said estate having been kept together for more than one year. 6. That Mrs. Minnie Peebles May, the widow of the late John V. May, was an invalid and confined to her bed for several years prior to her death and is in dire need of a second year's support to pay her medical and nursing expenses."
The caveat to the application of the administratrix to sell the lands of the estate of John V. May is fatally defective in that:
1. It alleges that the title to the lands is in the heirs (legatees) under the will of John V. May, in which event the judgment for the second year's support would not be collectible from the administratrix of John V. May's estate, but pro rata from the legatees. Code § 113-821; Redfearn, Wills and Administration of Estates, 252, § 150. The only way in which the title to the lands could be in the legatees would be the fact of assent of the executor. Code § 113-801.
2. The caveat does not assign as a ground the fact that the caveatrix has elected or could elect to take property in lieu of money. In the absence of such a contention, it will be presumed that the caveator would be satisfied with a money judgment. In such a case, even if the administratrix was legally appointed after the executor had been discharged, and could legally sell the lands of the estate as such administratrix, the caveatrix could proceed against the administratrix to collect the year's support award, and she would have no ground for contesting the administratrix's right to sell the lands of the estate on the grounds stated in the caveat.
So, in any event so far as the grounds of the caveat show, the caveatrix could enforce whatever money judgment she obtains for a second year's support against either the legatees or the administratrix, and there is no occasion for objecting to the sale of the lands.
The superior court did not err in sustaining the motion to dismiss and in dismissing, on appeal, the amended caveat to the application for leave to sell.
Judgment affirmed. Quillian and Nichols, JJ., concur.