Tabb et al. vs. Collier

Supreme Court of Georgia1882-02

68 Ga. 641

Summary · law.co

Holding. Where an ordinary has set apart property as a year's support for a widow and children, the widow may sell land so designated with the ordinary's approval and apply the proceeds to family support without additional court authorization, and the heirs cannot recover the property on grounds that the sale lacked express statutory authority or that the ordinary's approval was procedurally irregular. The judgment was affirmed.

The children of George M. Tabb brought an ejectment action against S. J. Collier to recover their interest in land. After their father's death, the land was designated as a year's support for the widow and children. The widow, with the ordinary's approval endorsed on the deed, sold the land to Sanders (under whom Collier claimed title), and the proceeds were applied to support the family. The children later sought to recover the property, arguing that title vested in them and could only be divested through a regularly authorized sale.

The court held that when an ordinary sets apart property as a year's support for a widow and children, that property vests in them. However, if the property consists of land unsuitable for direct family use, the widow may convert it to money for support purposes with the ordinary's approval, without requiring additional court authorization. The court reasoned that requiring further judicial procedures would impose impractical delays on a destitute family with no other means of survival. The court rejected the children's argument that the sale was invalid due to procedural irregularities, finding that the ordinary's judgment deserves deference and cannot be collaterally attacked absent a clear lack of jurisdictional facts.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Authority of the ordinary to approve sale of land set apart as year's support
Whether heirs can challenge a sale of year's support property on procedural grounds
Power to convert land into liquid assets for family sustenance
Collateral attack on judgments of the ordinary

Procedural posture

The children brought an action of ejectment against the subsequent title holder to recover land that had been set apart as year's support and sold by the widow with the ordinary's approval.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Crawford, Justice.

This was an action of ejectment brought by the children of George M. Tabb against S. J. Collier, to recover their interest in a lot of land of which their father died possessed.

The record shows that some years after the death of the father, there being no administrator or executor upon his estate, the land was set apart as a year’s support for the widow and these children ; that after being so set apart it was sold to one Sanders, under whom Collier claims; that Sanders and the widow went to the ordinary, she set forth before him the manner in which she intended to appropriate this money for the benefit of herself and her children, which was approved by him; that the children, seven in number, were feeble, unable to do much work, and the family were in rather destitute circumstances, having no other means of support; that the deed was then executed and endorsed on the back as follows: “ Court of ordinary, November 18th, 1869. I approve the within deed, passed an order for the sale of the same.” It was also shown that Sanders refused to buy without the approval was endorsed on the deed; that he paid the money to the ordinary, and he paid it to the widow.

The vital and controlling issue made upon the trial of this case was that the title to this land vested in the widow and children of the deceased, and having so vested it could only be divested by a sale regularly authorized by the ordinary, or by a chancellor in the mode pointed out by law.

There is no question but that the provision so made, is to be for the benefit of the entire family, and is to be, as is declared by law, for a year’s support to them, but is not to be administered as apart of the estate. This, then,being so, does it not follow by necessary implication that if this property so set apart is not adapted to the use of the family, that it may, without the aid of courts or chancellors, be converted and made available for the purposes intended ? We do not understand that, to be enjoyed, further notices, guardians, and orders are to be obtained to change land, already given for support, into bread before it is to be allowed. To do so would consume not less than two months, and in most cases longer, during which time a family having, as is shown in this case, nothing else to live upon, would come to want.

We hold, therefore, that where a year’s support has been set apart by the ordinary, the same vests in the widow and children ; and if the same be in land, and the widow by the approval of the ordinary sells it and appropriates the proceeds thereof to the support of the heirs at law, they cannot recover the same because there is no express power given the ordinary to order the sale, or because the approval of the ordinary to such sale was irregular. 50 Ga., 568.

But it is insisted that this family had a year’s support before this was set apart, the husband and father having been dead some years before the application was made, and cases are cited to sustain that view. The principle here invoked is- to be applied before, not after, the final judgment of the ordinary has been pronounced. Every presumption is in favor of their judgments, nor are they to be collaterally attacked except where the record shows a want of jurisdictional facts.

Under the facts as disclosed by the record in this case, the verdict was right, and the judge committed no error in overruling the motion for a new trial.

Judgment affirmed.