24659 | Ga. Ct. App. | Jul 13, 1935
The sisters and brothers of a deceased testatrix brought a bail-trover action against the husband of the testatrix to recover described argeles of household and kitchen furniture and a “silver set” of 54 pieces. The answer of the defendant admitted his refusal to deliver possession and claimed sole ownership of all the property. He further denied that he was or had ever been in possession of the silver set. The original will of the testatrix, under which 'the plaintiffs claimed, and oral testimony that it had been duly probated, were admitted without objection. The will contained a bequest to the defendant husband “ during his lifetime, or until his remarriage,” of “my personal effects in our home, consisting of household and kitchen furniture, and at his death or upon his remarriage” directed that “said personal effects shall be equally divided among my brothers and sisters.” One of the plaintiff sisters was the executrix of the will. A provision in the will directed payment of debts from the proceeds of two $500 bonds, and payment of any balance thereof to a named legatee. The evidence was undisputed that the testatrix died three years before the trial, that the defendant had recently remarried, and that the property claimed was then in his possession at his home. There was no sort of evidence as to the nature and character of the silverware, or as to its prior use in the home of the testatrix, other than the testimony of the executrix that she had “seen the silver in [the] home” of the testatrix, who told her that “there was 54 pieces.” Under the conflicting testimony as to the value of the property, ranging from $100 to $600, the jury returned a verdict for $277, “including silverware valued at $25.” The motion for new trial contains only
1. The defendant in his answer to the bail-trover petition having admitted that he refused to deliver possession, and having set up his own claim as sole owner of the property, it was unnecessary for the plaintiffs to prove a demand. Moore v. Ramsey, 144 Ga. 118 (86 S.E. 219" court="Ga." date_filed="1915-09-18" href="https://app.midpage.ai/document/moore-v-ramsey--legwen-5580531?utm_source=webapp" opinion_id="5580531">86 S. E. 219).
2. While “ ordinary hearsay testimony is wholly without probative value” (Spencer v. Wright, 48 Ga. App. 126, 172 S.E. 91" court="Ga. Ct. App." date_filed="1933-12-18" href="https://app.midpage.ai/document/walker-v-state-5623566?utm_source=webapp" opinion_id="5623566">172 S. E. 91; Bull v. Carpenter, 32 Ga. App. 637, 639, 124 S.E. 381" court="Ga. Ct. App." date_filed="1924-09-19" href="https://app.midpage.ai/document/bull--son-v-carpenter-5616375?utm_source=webapp" opinion_id="5616375">124 S. E. 381), yet “a verdict based upon secondary evidence introduced without any objection may be valid, and the same is true where the verdict rests upon sufficient testimony possessing probative value, even though such testimony would not have been competent if a timely and appropriate objection had been made at the trial.” Georgia Coast &c. R. Co. v. Herrington, 14 Ga. App. 539 (2) (81 S.E. 814" court="Ga. Ct. App." date_filed="1914-05-14" href="https://app.midpage.ai/document/georgia-coast--piedmont-railroad-v-herrington-5607127?utm_source=webapp" opinion_id="5607127">81 S. E. 814); Hutchinson v. State, 8 Ga. App. 684 (70 S.E. 63" court="Ga. Ct. App." date_filed="1911-01-31" href="https://app.midpage.ai/document/hutchinson-v-state-5604719?utm_source=webapp" opinion_id="5604719">70 S. E. 63). The verdict for the plaintiffs was therefore not unauthorized because it rested in part upon an original will and oral testimony that it had been duly probated, in the absence of any objection to this manner of proving the will and probate.
3. “Unless otherwise directed, the debts of a testator should be paid out of the residuum. If it prove to be insufficient, then gen-. eral legacies must abate pro rata to make up the deficiency. If they are insufficient, then specific legacies should abate in the same manner. If the executor has assented to the legacies, and the legatees are in possession, after exhausting the assets in the hands of the executor, the creditor may proceed against each legatee for his pro rata share.” Code of 1933, § 113-821. “All property, both real and personal, in this State, being assets to pay debts, no devise or legacy passes the title until the assent of the executor is given to such devise or legacy.” § 113-801. However, “the assent of the executor may be presumed from his conduct,” as well as shown by his expressed words. § 113-802; Clay v. Clay, 149 Ga. 725 (101 S.E. 793" court="Ga." date_filed="1920-01-17" href="https://app.midpage.ai/document/clay-v-clay-5582932?utm_source=webapp" opinion_id="5582932">101 S. E. 793); Citizens Bank of Vidalia v. Citizens &c. Bank,
4. The term “household furniture” covers articles necessary or ornamental to a house in furnishing, equipping, and fitting it for the use of its occupants. Such a term in a will is to be construed according to the manifested intention of the testator in the light of the surrounding circumstances. Although judicial precedents are few and somewhat conflicting, where a silver service or silverware has been in daily use in a household, ministering to the necessity, convenience, or comfort of the occupants, it is ordinarily construed to be “household furniture” the same as chairs, beds, tables,
5. The verdict in favor of the plaintiffs for “$277 including silverware valued at $25” being authorized except as to the item of silverware, the judgment denying a new trial is affirmed upon condition that the plaintiffs, at or before the time the remittitur is made the judgment of the trial court, shall write off such item from their recovery; otherwise the judgment is reversed.
Judgment affirmed on condition.