O.C.G.A. § 44-13-2 (2019)
Application for exemption by spouse, minor children or representative of dependents upon debtor’s refusal to apply
Should a debtor refuse to apply for an exemption under this article, the debtor’s spouse, any person acting on behalf of the minor children of the debtor, or any person acting on behalf of the dependents of the debtor may make such application; and it shall be as binding as if done by the debtor.
History
Ga. L. 1868, p. 27, § 13; Code 1873, § 2022; Code 1882, § 2022; Civil Code 1895, § 2843; Civil Code 1910, § 3393; Code 1933, § 51-702; Code 1981, § 4413-3; Code 1981, § 44-13-2, as redesig-
nated by Ga. L. 1983, p. 1170, § 2; Ga. L. 1986, p. 10, § 44.
Annotations
Editor’s notes. Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-3 as this Code section and rewrote
the Code section. The 1983 Act also repealed former Code Section 44-13-2, which was based on Ga. L. 1870, p. 70, § 4; Code 1873, § 2019; Code 1882, § 2019; Civil Code 1895, § 2842; Civil
Code 1910, § 3392; Code 1933, § 51-701; and which contained provisions concerning a wife’s homestead when separated from her husband.
JUDICIAL DECISIONS Sufficiency of allegations. - Allegations in an application for homestead in behalf of the applicant and her minor children, that she is a resident of the county in which the application is filed, and that her husband, who is a resident of the county, refuses to apply, are sufficient to give the ordinary (now probate judge) jurisdiction. Long v. Bullard, 59 Ga. 355, 1877 Ga. LEXIS 273 (1877); Gann v. McGee, 19 Ga. App. 13, 90 S.E. 976, 1916 Ga. App. LEXIS 6 (1916). See also Blacker v. Dunlop, 93 Ga. 819, 21 S.E. 135, 1894 Ga. LEXIS 426 (1894); Hughes v. Purcell, 135 Ga. 174, 68 S.E. 1111, 1910 Ga. LEXIS 467 (1910). Alleging refusal of husband. - The wife must unequivocally allege that the husband had refused to make the application. It would not suffice to allege merely that the husband “neglected or refused.” Hughes v. Purcell, 135 Ga. 174, 68 S.E. 1111, 1910 Ga. LEXIS 467 (1910). Where husband declared voluntary
bankruptcy prior to the application by his wife, the homestead did not protect the land. Smith v. Roberts, 61 Ga. 223, 1878 Ga. LEXIS 83 (1878). When husband’s assent presumed. - There being no evidence that the husband appeared before the ordinary (now probate judge) and objected to an application by his wife, by plea or otherwise, his assent thereto is presumed. Blacker v. Dunlop, 93 Ga. 819, 21 S.E. 135, 1894 Ga. LEXIS 426 (1894). Former application of husband dismissed. - Where the ordinary (now probate judge) dismissed an application of a husband without stating any ground therefor, this did not estop the wife of the applicant from making another application for exemption of the same and other property at a later date, alleging that her husband refused to apply. S.G. Mozley & Co. v. Fontana, 124 Ga. 376, 52 S.E. 443, 1905 Ga. LEXIS 718 (1905).
RESEARCH REFERENCES Am. Jur. 2d. 31 Am. Jur. 2d, Exemptions, § 30. 40 Am. Jur. 2d, Homestead, §§ 20, 21. C.J.S. 40 C.J.S., Homesteads, §§ 153, 158. ALR. Homestead rights of wife as affected by the fact that she does not live in state, 92 A.L.R. 1054.
Loss of homestead rights by wife through absence enforced by act of husband, 129 A.L.R. 305. Wife as head of family within homestead or other property exemption provision, 67 A.L.R.2d 779. Recovery of damages for breach of contract to convey homestead where only one spouse signed contract, 5 A.L.R.4th 1310.