Birt v. Brown

TVhere a year’s support, upon application of the widow, has been duly and ■ regularly set apart to her from the estate of her deceased husband by proceedings in the court of ordinary, to which no exceptions were filed, and from which no appeal was taken, a petition to the ordinary by the widow seeking to vacate such judgment with the view of having set aside to her the entire estate which she alleges is worth less than §500, is demurrable, when the only ground for the relief sought is a mistake of the appraisers, made before the application for a year’s support was filed, by including in their inventory property which did not belong to the estate, and which, ■ if eliminated from their return, would have reduced their estimate of the value of the estate to less than §500. Especially is this true when it does not appear from the petition that the facts therein stated were not known to the petitioner, and could not have been ascertained by the exercise of ordinary diligence, before the final judgment sought to be set aside was rendered.

Certiorari. Before Judge Hart. Putnam superior court. March term, 1898. The petition of Ann Birt to the court of ordinary alleged: Petitioner’s husband, Mack Birt, died in September, 1896. ]j). M. Brown was duly appointed and qualified as administrator of his estate, and on January 8, .1897, appraisers were appointed to appraise the real and personal property of the estate, which they did, the inventory and appraisement, which are of record in said court, being as follows: One house and lot, $400, blacksmith-shop and lot and tools, $100, household and kitchen furniture, described, $8.75, making a total of $508.75. On January 8, 1897, petitioner, as widow of the deceased, applied to said court for a year’s support out of the estate. The administrator acknowledged service of the petition. Appraisers were appointed who set aside $100 and the household and kitchen furniture as a year’s support. On March 8, 1897, their return was made the judgment of the court. The blacksmith-shop and lot and tools, included in the appraisement of the property of the estate, 'were not a part of the estate, but were the property of one Rainey, the same having been, on March 1, 1895, sold to Rainey for taxes as the property of Mack Birt and Anna Taylor, and a deed executed to him by the sheriff, and the same not having been redeemed within twelve months. Said property was returned in the inventory and appraisement as the property of Mack Birt through instructions of the attorneys acting for the administrator, which instructions were given by reason of a mistake as to the time when the property was sold to Rainey; and the return of the same as the property of Mack Birt amounted to a legal fraud upon petitioner. The estate in this particular is the same now as it was when first appraised, no part of it having been sold or otherwise disposed of. E. M. Brown is still the administrator. Petitioner prays that the return of the appraisers of the estate of Mack Birt be amended by striking therefrom the blacksmith-sliop and lot, and that the return of the appraisers of the year’s support be so amended that it shall set aside to the petitioner the entire estate, amounting to only $408.75, as a year’s support, thus conforming to the statute. By amendment it was prayed that the judgment admitting to record the return of the appraisers appointed'to set aside the year’s support be set aside, vacated, and revoked, and that the appraisers appointed to set kside the same be directed to amend their return, or to make a new return, so that the return should set aside to the petitioner as a year’s support the entire estate of the deceased. The petition was dismissed on general demurrer by the administrator, and this ruling was sustained on certiorari.