2020 Georgia Code
Title 53 - Wills, Trusts, and Administration of Estates
Chapter 5 - Probate
Article 1 - General Provisions
§ 53-5-7. Proof of Codicil

If a codicil republished a will except as to any amendment contained in the codicil and clearly identified the will that was republished, proof of the codicil is proof of the will.

(Code 1981, §53-5-7, enacted by Ga. L. 1997, p. 1352, § 9.)

- For article commenting on the enactment of this Code section, see 14 Ga. St. U.L. Rev. 313 (1997).

ANALYSIS

• General Consideration
• Pleading and Practice

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Laws 1838, Cobb's 1851 Digest, p. 296, former Laws 1850, Cobb's 1851 Digest, p. 297, former Code 1863, § 2531, former Code 1868, § 2530, former Code 1873, § 2751, former Code 1882, § 2571, former Civil Code 1895, § 3465, former Civil Code 1910, § 4041, former Code 1933, § 113-1002, and former O.C.G.A. §§ 53-5-1 and53-5-2 are included in the annotations for this Code section.

Pleading and Practice

1. Distribution Generally

Statute is a branch of the statute of distributions, and prescribes how the estate of a deceased person to this extent is to be disposed of; creditors are left out and adult children are left out, until this much of the estate is withdrawn from it, and then creditors and adult children are admitted for participation in the balance. Smith v. Sanders, 208 Ga. 405, 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).

Provision for a year's support is a branch of the statute of distribution, and the persons entitled to it are just as much and as absolutely entitled as they are in case of intestacy to a distributive share of the residue after the year's support is deducted and all debts are paid. Creditors are left out, and adult children are left out, until this much of the estate is withdrawn from it, when they are admitted for participation in the balance; they have no right to anything except by the statute of distributions. Rimes v. Graham, 199 Ga. 406, 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).

- Statute prescribes those who are to benefit thereunder, and the ordinary rules of inheritance designate the heirs of a decedent. Neither is dependent upon the other, and the statute of distributions does not determine who are entitled to a year's support. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).

"Ordinary law of distribution" and law governing year's support are entirely distinct and independent. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).

Question of whom deceased is bound by law to support is not answered by determination of one's heirs at law. Woodes v. Morris, 247 Ga. 771, 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).

- In Georgia, the rules of inheritance, as fixed by statute, use the words "child" or "children" without mentioning therein an adopted child or children. Nevertheless, by virtue of the adoption statutes an adopted child or children take under the statute of descent as natural children of lawful birth. For example, under the rules of inheritance, upon the death of the husband without lineal descendants, the wife is his sole heir, and upon the payment of his debts, if any, may take possession of his estate without administration. But, under the provisions of the adoption statute and the rights of inheritance conferred by it, an adopted child of the deceased husband, like a lineal descendant of the deceased, will deprive the wife of the right to take his entire estate as sole heir at law, without administration; and this is true because the statute fixing the rules of inheritance must be construed in pari materia with the adoption statute. A similar situation exists as to the statute providing for a year's support to the widow and minor children of a deceased husband and father. Thornton v. Anderson, 207 Ga. 714, 64 S.E.2d 186 (1951) (decided under former Code 1933, § 113-1002).

2. Caveat

All persons interested in administration of estate may file caveat to application.

- Not only heirs, legatees, and creditors of an estate, but also all other persons concerned in the legal administration of the assets thereof, including a cosurety of the decedent on a bond on which suit has been brought, may interpose a caveat to an application for a year's support. Wardlaw v. Wardlaw, 41 Ga. App. 538, 154 S.E. 159 (1930) (decided under former Civil Code 1910, § 4041).

It is not necessary for an administrator to be a party to a caveat to a year's support. Wardlaw v. Wardlaw, 41 Ga. App. 538, 154 S.E. 159 (1930) (decided under former Civil Code 1910, § 4041).

- When caveators produce no evidence as to the standing of the family or the manner in which the deceased and the applicant had lived prior to death, caveators have failed to produce one of the necessary elements of evidence to show that the amount set aside to the applicant was more than the applicant was entitled to as a year's support. Hayes v. Hay, 92 Ga. App. 88, 88 S.E.2d 306 (1955) (decided under former Code 1933, § 113-1002).

Statute does not require notice to the applicant for a year's support of the filing of a caveat to the application; it is the duty of the applicant to keep informed as to regular proceedings in the case, and any ignorance of such proceedings, resulting from failure to perform that duty, will not afford ground for ousting the court of the court's jurisdiction to try the issue raised by the caveat, and to set aside the judgment upon that issue. Davis v. City of Atlanta, 182 Ga. 242, 185 S.E. 279 (1936) (decided under former Code 1933, § 113-1002).

3. Judgment

Superior court appeal subject to summary judgment.

- An appeal of an application for a year's support award by a probate court is a de novo proceeding in the superior court and, as such, the appeal is subject to the established procedures for civil actions, thus entitling a party to invoke summary judgment. Bright v. Knecht, 182 Ga. App. 820, 357 S.E.2d 159 (1987) (decided under former O.C.G.A. § 53-5-2).

- Although a judgment for year's support would have ranked ahead of payment of debts, the mere fact that plaintiffs by relationship occupied a position which would entitle the plaintiffs to apply for and obtain such a judgment, would not entitle the plaintiffs, without having it allowed in the only way provided by law to have a recovery against the administrator and the administrator's surety. A year's support to be enforceable must be manifest in a judgment. It is not in existence as such until such judgment. Howard v. Davis, 192 Ga. 505, 15 S.E.2d 865 (1941) (decided under former Code 1933, § 113-1002).

Judgment of the court of ordinary (now probate court) allowing a year's support is a judgment of a court of general jurisdiction, and the presumption is that everything necessary to be done was done. Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858, 151 S.E. 796 (1930) (decided under former Civil Code 1910, § 4041).

After a judgment by a court of ordinary (now probate court) setting aside a 12 months' support, that court cannot suspend or vacate such judgment merely to let in a defense which should have been offered before judgment. Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858, 151 S.E. 796 (1930) (decided under former Civil Code 1910, § 4041).

- Every presumption is in favor of the judgment of the ordinary (now probate judge) setting apart a year's support; and it cannot be collaterally attacked, except when the record shows want of jurisdictional facts. Smith v. Smith, 187 Ga. 743, 2 S.E.2d 417 (1939) (decided under former Code 1933, § 113-1002).

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, § 113-1002).

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, § 113-1002).

A widow who applies for and obtains a year's support for herself and her minor children living with her, acts for the minor children as well as herself. In such case the minor children are as plaintiffs, and the judgment obtained is in their behalf. The result is that both widows and their minor children who invoke and obtain judgments granting them property out of the estates of deceased husbands and fathers cannot afterwards repudiate the judgments which they have secured for their own benefit. The position thus occupied by the minors living with their mother is very different from that of creditors, or adult heirs such as other children who were sui juris when the support was set apart. Jones v. Federal Land Bank, 189 Ga. 419, 6 S.E.2d 52 (1939) (decided under former Code 1933, § 113-1002).

Judgment of the ordinary (now probate judge) confirming and admitting to record the return of duly appointed appraisers, setting apart to a widow and minor children a year's support consisting of described property, "subject to just debts owed by" the deceased husband and father, is not void on the ground that the property has been set apart subject to existing debts of the deceased. Griffin v. Wood, 196 Ga. 510, 26 S.E.2d 921 (1943) (decided under former Code 1933, § 113-1002).

When the final judgment of the ordinary (now probate judge) setting apart a year's support has been rendered, it is too late to attack that judgment. Smith v. Smith, 73 Ga. App. 567, 37 S.E.2d 439 (1946) (decided under former Code 1933, § 113-1002).

Judgment approving the return of commissioners setting aside a year's support, when all the proceedings are regular, cannot be attacked as fraudulent because interested parties could have successfully resisted the judgment had the parties interposed timely objection. Brownlee v. Brownlee, 203 Ga. 377, 46 S.E.2d 901 (1948) (decided under former Code 1933, § 113-1002).

Judgment awarding the year's support to the widow bears the presumption that everything necessary to authorize the judgment was properly done. Such judgment is not subject to a collateral attack except for a want of jurisdiction apparent on the face of the record. Stephens v. Carter, 215 Ga. 355, 110 S.E.2d 762 (1959) (decided under former Code 1933, § 113-1002).

When defendants in year's support action in pleading the record in the year's support proceeding, allege that the executors in their caveat interposed as a defense a marital contract and the bequest to the widow in the husband's will in lieu of a year's support, and these defenses were adjudicated adversely to the estate in prior proceeding this is binding on the defendants. Stephens v. Carter, 215 Ga. 355, 110 S.E.2d 762 (1959) (decided under former Code 1933, § 113-1002).

4. Jurisdiction

Probate court has general jurisdiction.

- In a proceeding to set apart a year's support, the court of ordinary (now probate court) is a court of general jurisdiction as to such matter. Smith v. Smith, 187 Ga. 743, 2 S.E.2d 417 (1939) (decided under former Code 1933, § 113-1002).

In response to a widow's application for year's support, the probate court could only award her property belonging to her husband's estate and had no jurisdiction to determine whether the property was vested in the widow, her husband's estate, or in a bankruptcy estate. McClure v. Mason, 228 Ga. App. 797, 493 S.E.2d 16 (1997) (decided under former O.C.G.A. § 53-5-2).

Original jurisdiction of a court of ordinary (now probate court) in a year's support proceeding is exclusive, and fact that the estate is in the hands of a trustee or receiver will not affect the right of the widow to proceed for it. Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858, 151 S.E. 796 (1930) (decided under former Civil Code 1910, § 4041).

Courts of ordinary (now probate courts) have exclusive jurisdiction to set aside a year's support. Cox v. Stowers, 204 Ga. 595, 50 S.E.2d 339 (1948) (decided under former Code 1933, § 113-1002).

- Widow is entitled to a year's support under the laws of Georgia, provided the deceased husband left any property out of which, or the proceeds of which, it may be set aside to her. If the intervention of a bankruptcy proceeding prevents appropriate action by the state court having jurisdiction, then the bankruptcy court, which exercises equitable jurisdiction, should act, and do that which ought to have been done. Seiden v. Southland Chenilles, Inc., 195 F.2d 899 (5th Cir. 1952) (decided under former Code 1933, § 113-1002).

- Court of ordinary (now probate court) has no jurisdiction to try and determine conflicting claims of ownership of property, arising between a widow applying for the setting apart of a year's support and a person asserting title adversely to the estate of her deceased husband. Richey v. First Nat'l Bank, 180 Ga. 751, 180 S.E. 740 (1935) (decided under former Code 1933, § 113-1002).

Probate court has no jurisdiction to try conflicting claims of title to real property on an application for a year's support. Johnson v. Johnson, 199 Ga. App. 549, 405 S.E.2d 544 (1991) (decided under former O.C.G.A. § 53-5-2).

- Consent decree of a court of another state which, in part, seeks to transfer title to realty in this state that had previously been set aside to a widow and minor children as a year's support, shows upon its face that, insofar as transferring title to realty, the court was without jurisdiction of the subject matter; and accordingly, that part of the decree is not such a judgment as comes within the full faith and credit clause of the Constitution. King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002).