Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 4045, former Code 1933, §§ 113-1002 and 113-1007, and former O.C.G.A. §§ 53-5-2 and53-5-5 are included in the annotations for this Code section.

Testamentary provision in lieu of year's support must be clearly expressed.

- In case of testacy, in order to put the widow to an election between the provisions made in her favor in the will and her right to a year's support, such testamentary provision in her favor must be either expressly made in lieu of a year's support, or the intention of the testator to that effect must be deduced by clear and manifest implication from the will, founded on the fact that the claim of year's support would be inconsistent with the will or so repugnant to its provisions as necessarily to defeat them. Chambliss v. Bolton, 146 Ga. 734, 92 S.E. 204 (1917) (decided under former Civil Code 1910, § 4045); Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940); Bowen v. Bowen, 200 Ga. 572, 37 S.E.2d 797 (1946) (decided under former Code 1933, § 113-1007); Samples v. Samples, 107 Ga. App. 788, 131 S.E.2d 584 (1963); Studstill v. Studstill, 130 Ga. App. 803, 204 S.E.2d 496 (1974) (decided under former Code 1933, § 113-1007); Young v. Ellis, 250 Ga. 838, 301 S.E.2d 271 (1983);(decided under former Code 1933, § 113-1007);(decided under former Code 1933, § 113-1007);(decided under former O.C.G.A. § 53-5-5).

Widow's claim for a year's support is not barred by accepting provisions made for her in her husband's will when the will does not show a plain and manifest intention on the part of the testator that the provisions made for the wife should be in lieu of a year's support, although the will provides that the executors conduct certain farming operations and pay the profits thereof to the wife, and that his property be kept "intact" and none of the lands be sold unless absolutely necessary. Burch v. Harrell, 57 Ga. App. 514, 196 S.E. 205 (1938) (decided under former Code 1933, § 113-1007).

When husband's will provides that all of the property of the testator is devised to the widow and the daughter for life, with remainder over to other children of the testator, and that the property of the testator be kept intact as long as either the widow or daughter should live, the wife's claim for a year's support is inconsistent with and repugnant to the will and necessarily defeats the provisions of the will, in that the allowance of a year's support to the widow will defeat the testamentary scheme of the testator, which was to provide for his wife and daughter and to keep his estate intact so long as either of them should live. Therefore the widow may elect whether she will take a life estate under the will or a year's support. Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940) (decided under former Code 1933, § 113-1007).

When by the will the widow is devised a life estate in all of the testator's property, in order to put her to an election between the provisions of the will in her favor and her right to a year's support, such provisions in the will must be either expressly made in lieu of a year's support, or the intention of the testator to that effect must be deduced by clear and manifest implication from the will, founded on the fact that the claim of year's support would be inconsistent with the will or so repugnant to the will's provisions as necessarily to defeat the provisions. Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940) (decided under former Code 1933, § 113-1007).

When the will does not expressly require an election by the widow and there is no conflict of facts requiring submission to a jury, the trial court has the duty as a matter of law to determine if the will can be read to give the "clear and manifest implication" necessary to require an election of the widow. Studstill v. Studstill, 130 Ga. App. 803, 204 S.E.2d 496 (1974) (decided under former Code 1933, § 113-1007).

Will which did not provide that the devise of income from real property to the widow was in lieu of a year's support, as might have been done under the statute, does not preclude the widow's right to claim a year's support. Strickland v. Miles, 131 Ga. App. 300, 205 S.E.2d 880 (1974) (decided under former Code 1933, § 113-1007).

When the will devised to the widow a life estate in the marital home, and directed payment by the estate of taxes, insurance, and certain maintenance expenses on the family home, and it contained a further provision relative to income to the widow during her lifetime, inasmuch as the unquestioned desire of the testator was to provide certain basic needs to the wife during her lifetime, there was no manifest implication of the will that would require the widow to elect between a year's support and the benefits of the will. Young v. Ellis, 250 Ga. 838, 301 S.E.2d 271 (1983) (decided under former O.C.G.A. § 53-5-5).

Acceptance of testamentary provision as renunciation of right to year's support.

- Even though the will of a decedent provides that his widow shall take under the will only if she renounces her right to a year's support, she must do some act which shows her acceptance of that provision in lieu of a year's support. Walraven v. Walraven, 76 Ga. App. 713, 47 S.E.2d 148 (1948) (decided under former Code 1933, § 113-1007).

When after will was probated, widow was entitled, under the will's terms, to receive, use and consume as her own what she testified she had received, this would not bar her right to a year's support or require her to account therefor in having year's support set apart. Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1007).

Withdrawal of funds by a widow from a joint checking account with her deceased husband, after his death, is not tantamount to an election to take under the will of her deceased husband, particularly when there was evidence of excessive medical expenses of the widow following her husband's death. Howard v. Howard, 150 Ga. App. 213, 257 S.E.2d 336 (1979) (decided under former Code 1933, § 113-1007).

Estoppel.

- When a widow claims the legacy in lieu of a year's support made under the will and at the same time makes application to the ordinary (now probate judge) for a year's support, any interested person may file a caveat to the return of the appraisers, and may set up as a bar to the allowance of year's support an inconsistent election on the part of the widow, whereby under the provisions of the will she has estopped herself from such an allowance. Bowen v. Bowen, 200 Ga. 572, 37 S.E.2d 797 (1946) (decided under former Code 1933, § 113-1007).

Question of fact.

- Summary judgment was not proper when a question of fact remained as to whether the funds received by the surviving spouse passed to her outside the estate and did not constitute an election to take under the will and if she was therefore entitled to the statutory year's support. Wynn v. Wynn, 202 Ga. App. 679, 415 S.E.2d 287 (1992) (decided under former O.C.G.A. § 53-5-5).

Trial court erred in granting summary judgment against a widow where she testified that she was unaware of her year's support rights at the time of her election to take two real-property bequests under the will and the executor presented no evidence that she knew the condition of the estate at that time. Brown v. Estate of Brown, 246 Ga. App. 332, 539 S.E.2d 824 (2000) (decided under former O.C.G.A. § 53-5-5).

Grant of life estate to widow under will does not preclude award of year's support. Adams v. Adams, 249 Ga. 477, 291 S.E.2d 518 (1982) (decided under former O.C.G.A. § 53-5-2).

Testamentary gift in addition to a year's support.

- Widow's claim for a year's support is not barred by accepting provisions made for her in her husband's will when the will does not show a plain and manifest intention on the part of the testator that the provisions made for the wife should be in lieu of a year's support, although the will provides that the executors conduct certain farming operations and pay the profits thereof to the wife, and that his property be kept "intact" and none of the lands be sold unless absolutely necessary. Burch v. Harrell, 57 Ga. App. 514, 196 S.E. 205 (1938) (decided under former Code 1933, § 113-1002).

Life estate in widow.

- When under a will the widow is given a life estate in all of the property, it is correct and proper for the appraisers to carve her year's support allowance out of the remainder interest, when that is the only interest, other than the life estate, created by the will. Saxon v. Aycock, 72 Ga. App. 728, 34 S.E.2d 914 (1945) (decided under former Code 1933, § 113-1002).

Widow is entitled to a 12 months' support out of the estate of her deceased husband, notwithstanding the fact that he left to her by will, which was probated over her caveat thereto, a life estate in all of his property real and personal. Russell v. Hall, 245 Ga. 677, 266 S.E.2d 491 (1980) (decided under former Code 1933, § 113-1002).

Will provisions in lieu of year's support.

- Testator can make provisions in the testator's will for the benefit of his widow and in lieu of a year's support, and when this is done the widow must elect as between the provisions of the will for her benefit and her right to a year's support. Saxon v. Aycock, 72 Ga. App. 728, 34 S.E.2d 914 (1945) (decided under former Code 1933, § 113-1002).

When husband's will provides that all of the property of the testator is devised to the widow and the daughter for life, with remainder over to other children of the testator, and that the property of the testator be kept intact as long as either the widow or daughter should live, the wife's claim for a year's support is inconsistent with and repugnant to the will and necessarily defeats the provisions of the will, in that the allowance of a year's support to the widow will defeat the testamentary scheme of the testator, which was to provide for his wife and daughter and to keep his estate intact so long as either of them should live. Therefore, the widow may elect whether she will take a life estate under the will or a year's support. Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940) (decided under former Code 1933, § 113-1002).

Waiver by electing to take inconsistent benefit.

- When a husband as the head of a family has a homestead set apart for himself and wife, and the widow after his death continues upon the property constituting the homestead for a great number of years, enjoying during that period the rents, issues, and profits of the homestead, she will not be allowed, after the expiration of such a time, to take a year's support out of the homestead property, but will be conclusively presumed to have made an election in favor of the enjoyment of the homestead as such, and against the right to have a year's support set apart to her. McDaniel v. Kelley, 61 Ga. App. 105, 5 S.E.2d 672 (1939) (decided under former Code 1933, § 113-1002).

In case of testacy, in order to put the widow to an election between the provisions made in her favor in the will and her right to a year's support under the statute, such testamentary provision in her favor must be either expressly made in lieu of year's support, or the intention of the testator to that effect must be deduced by clear and manifest implication from the will, founded on the fact that the claim of year's support would be inconsistent with the will or so repugnant to its provisions as necessarily to defeat them. Clark v. Clark, 62 Ga. App. 738, 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1002); Rogers v. Woods, 63 Ga. App. 195, 10 S.E.2d 404 (1940);(decided under former Code 1933, § 113-1002).

Widow may waive her statutory right to a year's support by her election to take an inconsistent benefit. Smith v. Sanders, 208 Ga. 405, 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).

Cited in McNair v. Robun, 159 Ga. 401, 126 S.E. 9 (1924); Smalley v. Bassford, 191 Ga. 642, 13 S.E.2d 662 (1941); Johnson v. City of Blackshear, 196 Ga. 652, 27 S.E.2d 316 (1943); Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947); Strother v. Kennedy, 218 Ga. 180, 127 S.E.2d 19 (1962); Russell v. Hall, 245 Ga. 677, 266 S.E.2d 491 (1980); Hiers v. Estate of Hiers, 278 Ga. App. 242, 628 S.E.2d 653 (2006).

Am. Jur. 2d.

- 80 Am. Jur. 2d, Wills, § 1416.

C.J.S.

- 34 C.J.S., Executors and Administrators, § 342.

ALR.

- Right of one who elects against will to share in lapsed legacy, 26 A.L.R. 91.

Does surviving spouse who elects against will take by way of distributive share or by way of inheritance from deceased spouse, 160 A.L.R. 429.

Election by spouse to take under or against will as exercisable by agent or personal representative, 83 A.L.R.2d 1077.

Waiver of right to widow's allowance by postnuptial agreement, 9 A.L.R.3d 955.

Extension of time within which spouse may elect to accept or renounce will, 59 A.L.R.3d 767.

Conflict of laws regarding election for or against will, and effect in one jurisdiction of election in another, 69 A.L.R.3d 1081.

Liability for administration expenses of spouse electing against will, 89 A.L.R.3d 315.

Construction, application, and effect of statutes which deny or qualify surviving spouse's right to elect against deceased spouse's will, 48 A.L.R.4th 972.