2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 3 - Year's Support
§ 53-3-9. Vesting of Title to Property Set Apart

1. Except as otherwise provided in Code Section 53-3-8, title to the property set apart shall vest in the surviving spouse and child or children or, if there is no surviving spouse, in the children, share and share alike; and the property shall not be administered as the estate of the deceased spouse or parent.
2. When property is set apart as a year's support for the benefit of the surviving spouse alone, the spouse shall thereafter own the same in fee, without restriction as to use, encumbrance, or disposition.

(Code 1981, §53-3-9, enacted by Ga. L. 1996, p. 504, § 10.)

- For article discussing title by year's support, see 2 Ga. B.J. 45 (1940).

This section carries forward former OCGA Sec. 53-5-10.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4084, former Code 1933, § 113-1006, and former O.C.G.A. § 53-5-10 are included in the annotations for this Code section.

Title to property set apart as a year's support to a widow and minor children vests in them for such purpose, share and share alike. Moore v. Pittman, 185 Ga. 619, 196 S.E. 50 (1938) (decided under former Code 1933, § 113-1006).

- Property duly set apart to the widow, or widow and minor child, of an intestate as a year's support vests in them, and is not subject to be administered as a part of the estate of the deceased husband or father. Holamon v. Jenkins, 50 Ga. App. 129, 177 S.E. 262 (1934) (decided under former Code 1933, § 113-1006).

When property owned by one at the time of one's death is set apart to one's minor children as a year's support, the title thereto vests in such children share and share alike, and a child's arrival at majority does not divest his or her legal interest. Pardue Medicine Co. v. Pardue, 194 Ga. 516, 22 S.E.2d 143 (1942) ??? (decided under former Code 1933, § 113-1006).

When a year's support was set aside to the widow and three minor children jointly under former Code 1933, § 113-1002, the title thereto vested in them for their joint support and maintenance, and the other children had no interest therein. When the minor children married or attained their majority, the right of support and maintenance from the property set aside as a year's support belonged to the widow alone as long as the property lasted or as she lived, and she was entitled to its use and control. She could sell the property for her maintenance and support. The children who have attained their majority have no right to participate in its consumption or its control. King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1006).

When uncontradicted evidence showed that the application for a year's support made by widow was not admitted to record, and there was no judgment by the ordinary (now probate judge) making the return of the appraisers the judgment of the court of ordinary (now probate court), title to the property did not vest in the widow under a valid year's support proceeding. Miles v. Blanton, 211 Ga. 754, 88 S.E.2d 273 (1955) (decided under former Code 1933, § 113-1006).

Interest of a minor child in the estate awarded is not divested upon the child reaching majority, and upon the death of the child's mother, the child is entitled to the child's proportionate interest in such of the property as remains unconsumed. Barber v. Dunn, 225 Ga. 134, 166 S.E.2d 572 (1969) (decided under former Code 1933, § 113-1006).

Title to property set apart to a widow and child or children, as a year's support vests in the family to the exclusion of all debts, "except as otherwise specially provided" by law. Bank of Hampton v. Smith, 177 Ga. 532, 170 S.E. 508 (1933) (decided under former Civil Code 1910, § 4044).

- When property is set aside to a widow and minor children in gross, the widow and minor children become owners of the property in common, and share equally in the title. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1006).

When an application for a year's support is made by a widow for herself and her minor child, the law contemplates that an award shall be made to such widow and minor child in gross, and not that awards shall be made to them separately; so that, although the legal title will vest in them share and share alike, the use of the entire property shall be a joint one for the support of both the mother and the child, and of neither to the exclusion of the other, so long as the widow lives and until the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500, 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1006).

When property is set apart as a year's support for the benefit of the widow alone, she owns the property in fee, without restriction as to use, incumbrance, or disposition. Strickland v. Strickland, 99 Ga. App. 531, 109 S.E.2d 289 (1959) (decided under former Code 1933, § 113-1006).

- If necessary, the property awarded to a widow and minor child may be consumed or exhausted, and so long as it lasts, it will be subject to exclusive use by the widow during her life, after the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500, 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1006).

Property awarded to the widow alone as a year's support may be freely sold or encumbered like any other property. Pierce v. Moore, 244 Ga. 739, 261 S.E.2d 647 (1979) (decided under former Code 1933, § 113-1006).

- When a widow was awarded her deceased husband's real property as a year's support, the property was subject to sheriff's sale for the widow's personal debts. Martin v. Jones, 266 Ga. 156, 465 S.E.2d 274 (1996) (decided under former O.C.G.A. § 53-5-10).

Because the law does not confer upon the appraisers the power to direct that the fund be paid to a widow over a period of time, husband's estate is not held together during the time that the fund is in the hands of husband's legal representative subject to the use of the widow; estate of the husband is divested of any interest in the money. May v. Braddock, 92 Ga. App. 302, 88 S.E.2d 539 (1955) (decided under former Code 1933, § 113-1006).

- While the widow is entitled, after the child or children reach majority, to the possession of the entire property for her support and maintenance, and has the right to sell the property for such purpose, this does not include the power to give the children's share of the property to another by will. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1006); Barber v. Dunn, 225 Ga. 134, 166 S.E.2d 572 (1969);(decided under former Code 1933, § 113-1006).

When property is set apart as a year's support for the benefit of the widow alone, the fee vests in her, and she can make a testamentary disposition of the unconsumed portion thereof; and, accordingly, the petition of another seeking to recover an interest in the property as an heir at law failed to set forth a cause of action. Hiers v. Striplin, 210 Ga. 293, 79 S.E.2d 539 (1954) (decided under former Code 1933, § 113-1006).

- Judgment setting apart a year's support is not void on the ground that the appraisers have not filed with their report a plat of the land set apart. Smith v. Smith, 187 Ga. 743, 2 S.E.2d 417 (1939) (decided under former Code 1933, § 113-1006).

When no caveat to widow's application for support was filed, and citation had issued and been published as required by law, a court of equity would not set aside the judgment of the court of ordinary (now probate court) for irregularities. Smith v. Smith, 187 Ga. 743, 2 S.E.2d 417 (1939) (decided under former Code 1933, § 113-1006).

Judgment setting apart a year's support to a widow and her minor children has the same binding force and effect as that of any other judgment rendered by a court of competent jurisdiction and cannot be collaterally attacked. Wayne County Bd. of Comm'rs of Rds. & Revenue v. Reddish, 220 Ga. 262, 138 S.E.2d 375 (1964) (decided under former Code 1933, § 113-1006).

- When all of the beneficiaries of a year's support cease to exist as such, any of the property set aside which may be unconsumed belongs to them or their heirs in common. Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1006).

Cited in Pullen v. Johnson, 173 Ga. 581, 160 S.E. 785 (1931); Davis v. City of Atlanta, 182 Ga. 242, 185 S.E. 279 (1936); Dowdy v. Dowdy, 187 Ga. 26, 199 S.E. 191 (1938); Whitfield v. Maddox, 189 Ga. 878, 8 S.E.2d 54 (1940); Gaddy v. Harmon, 191 Ga. 563, 13 S.E.2d 357 (1941); Harnesberger v. Davis, 86 Ga. App. 41, 70 S.E.2d 615 (1952); Calloway v. Dubose, 89 Ga. App. 513, 80 S.E.2d 62 (1954); Strain v. Monk, 212 Ga. 194, 91 S.E.2d 505 (1956); Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960); United States v. First Nat'l Bank & Trust Co., 297 F.2d 312 (5th Cir. 1961); Outlaw v. Outlaw, 121 Ga. App. 284, 173 S.E.2d 459 (1970); Strickland v. Trust Co., 230 Ga. 714, 198 S.E.2d 668 (1973); Barone v. Adcox, 235 Ga. 588, 221 S.E.2d 6 (1975); Adams v. Adams, 249 Ga. 477, 291 S.E.2d 518 (1982); Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982).

RESEARCH REFERENCES

Am. Jur. 2d.

- 31 Am. Jur. 2d, Executors and Administrators, §§ 324 et seq., 330 et seq.

- 34 C.J.S., Executors and Administrators, §§ 470, 482.

- Widow's or family allowance out of decedent's estate as surviving death or marriage of widow or minor children, or attainment of majority by children, 144 A.L.R. 270.

Nontrust life estate expressly given for support and maintenance, as limited thereto, 26 A.L.R.2d 1207.

Rights in survival benefits under public pension or retirement plan as between designated beneficiary and heirs, legatees, or personal representative of deceased employee, 5 A.L.R.3d 644.