Bridges v. Brady

158 Ga. 886 | Ga. | 1924

Lead Opinion

Beck, P. J.

(After stating the foregoing facts.)

When the documentary evidence set forth in the statement of facts was offered in evidence the plaintiffs objected to its admission, on the grounds: (1) That the return of appraisers recited the name of the deceased to be J. L. Brownlee, and not C. L. Brownlee; (2) that the order providing for citation was without date and specified the deceased to be C. L. Brownlee and the beneficiaries to be Florence Brownlee and six minors; (3) that the judgment of the ordinary was void for the reason that it contained no date, nor does it appear therefrom that it was signed in the regular term of the court of ordinary or at chambers; (4) that the description contained in said return of appraisers, being “50 acres, more or less,” was too indefinite and uncertain. The grounds of objection were overruled. The first objection, that the name of the deceased is recited to be “J. L.” instead of C. L. Brownlee in the return of the appraisers, is without merit, in view of evidence introduced showing that the letter J was used for the letter C by mistake, and that the return of the appraisers dealt with the estate of C. L. Brownlee, the decedent, and set apart the same for the purposes indicated in the return.

The second and third exceptions to the evidence are also without merit. The fact that the order providing for citation was without date, and that the number of minors should have been stated as live instead of six, did not render the evidence inadmissible. These amount, at the most, only to irregularities, and do not affect the validity of. the return of the appraisers.

The fourth objection is that “the description contained in said return of appraisers, being ‘50 acres, more or less/ is too indefinite and uncertain to afford a basis for recovery.” In the case of McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655), it was said: “The judgment setting apart the year’s support being, in effect, a conveyance to her of the interest of her deceased husband in the property, the description of the property must be such as to render it capable of identification. If the description is so vague and indefinite that the property cannot be identified, the title to the estate is not divested by the judgment setting apart a year’s support. That certainty which is required in a deed, or other conveyance, is also required in a judgment setting apart a year’s support, certainly so far as land is concerned. If the judgment now in question had purported on its face to have set apart all of the property, or all of the lands, of the deceased, parol evidence would have been admissible to show what lands were owned by the deceased. But there is nothing in the judgment to indicate that it was the intention of the commissioners to set apart the entire estate.” And a similar doctrine is laid down in other eases. In the instant case the decedent owned as much as 75 acres of land; and it appears as a fact established in this record that 25 acres of this land, subsequently to the date of the judgment approving the return of the appraisers, was ordered to be sold, because a sale was necessary for the purpose of paying the debts of the estate.

But while the return of the appraisers in the present case was defective in the respect pointed out, we are further of the opinion that the amendment to the return of the appraisers was admissible in evidence, and, having been admitted, it cured the defect. The return of the appraisers was not entirely void; it had the effect of setting apart as a part of the year’s support certain articles of personalty; and the defective description of the land which the appraisers attempted to set apart could be amended, and was amended. The introduction in evidence of the amendment was objected to upon the grounds, that the original return of the appraisers and the judgment based thereon were void; that the petition to amend the return of the appraisers and the judgment allowing the amendment show upon their face that they were filed upon the same day, and consequently the judgment was entered up “without notice;” that it does not appear that the order and judgment had been admitted to record; that the judgment admits the petition to record upon the minutes of the court; and that it appears that said petition and judgment had not been recorded as required by law. We do not think that any of these reasons are valid reasons for refusing the admission in evidence of the petition to amend and the judgment allowing the amendment. The irregularities in the matter of record did not constitute sufficient ground to reject the amendment and the judgment allowing it. Nor did the want of notice constitute a valid ground for the rejection of the evidence. Such grounds might possibly have been a sufficient basis for objection if they had been raised in proceedings by creditors of the estate, had such been contesting the validity of the year’s support. But the plaintiffs are the children of the decedent, out of whose estate the year’s support was carved, and they were minors at the time of setting apart the year’s support; and that places them, relatively to the question at issue, in a very different position from that which would have been occupied by creditors. In the case of Seeland v. Denton Realty Corporation, 148 Ga. 628 (97 S. E. 681), which was a case dealing with the question of an amendment to the return of appraisers appointed to set aside a year’s support, and where the return was defective as in the present case, it was said: “This was done upon the application of the widow acting for herself and the minor children. As we have said, we do not think the report as it stood was entirely void for indefiniteness of the description of the lot of land. Nor do we think that the children could raise that question in this .case, inasmuch as they were virtually the petitioners in the application for the amendment of the description of the property which rendered that description definite and certain. Service of proceedings upon them was not necessary. This ruling, which is controlling upon the main question in this case, requires no elaboration, as in a recent case before this court a decision was rendered controlling upon the question stated. In the case of Hendrix v. Causey, 148 Ga. 164 (96 S. E. 180), it was said: Nn a proceeding to set apart a year’s support for a widow and minor children out of the property of the deceased husband, the widow may act for the minor children as well as herself. Civil Code, § 4041; Ferris v. Van Ingen, 110 Ga. 102 (7), 118 (35 S. E. 347). In such a case the minor children are as plaintiffs, and the judgment obtained is in their behalf. The notice required by law of an application for year’s support and the return of the appraisers is for the benefit of persons whose interests are adversely affected by the judgment, and not for the widow and minors for whose benefit the judgment is rendered. Neither the widow nor the minor children can complain that others do not have proper notice of the proceedings. See Galloway v. Vestal, 135 Ga. 707-11 (70 S. E. 589). The plaintiff in this ease was one of the minors for whose benefit the year’s support was set apart.’ ” See also Lane v. Jackson, 151 Ga. 584 (2) (107 S. E. 846).

Judgment affirmed.

All the Juslices concur, except

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Dissenting Opinion

Russell, C. J.,

dissenting. The -item in the return of the appraisers setting apart a year’s support, which designates a tract of land merely as “50 acres, more or less, $250,” is too vague and indefinite in description to be capable of enforcement; and the return of the appraisers is not subject to amendment after there has been a judgment entered upon their return. In my opinion, the failure to date the order for citation, and the order and judgment of the ordinary being without any date at which it purported to have been rendered, as well as the fact that the number of minors for whose benefit in part the year’s support was being-allowed exceeded the number of minors actually in existence, and the further fact that no notice of the application to amend the return had been given, required that the amendment tendered in evidence should be rejected.