86 Ga. App. 41 | Ga. Ct. App. | 1952
The first question presented is whether or not the defendants in error, the appellants in the Superior Court of Lincoln County, upon an appeal from the ruling and judgment of the Ordinary of Lincoln County to that court, 'could properly appeal from this order and judgment of the ordinary granting the application of the plaintiff in error (the appellee in the superior court and the petitioner before the ordinary), for leave to convey certain lands, which had been previously set apart as a year’s support to herself and six minor children; or whether they should have applied to the superior court for the writ of certiorari directed to the ordinary. It is insisted by the plaintiff in error that certiorari was the only and exclusive remedy or method by which the defendants in error could obtain a review of the order, ruling and judgment of the ordinary granting to the plaintiff in error leave to convey these lands.
The plaintiff in error filed her petition with the ordinary for leave to convey the lands which had theretofore, in 1923, been
This proceeding is brought by a widow directly to the ordinary under the provisions of said statute (Ga. L. 1937, pp. 861 et seq.; Code, Ann. Supp., §§ 113-1023 et seq.), for leave to convey certain lands which had been set apart as a'year’s support for herself and six minor children, who were at the time sui juris, to which objections were interposed, and on the hearing the' ordinary granted said application for leave to convey. Thereupon, within the time allowed by law, the objectors or caveators (now the defendants in error) appealed from the order, ruling and judgment of the ordinary to the superior court of the county. This appeal was brought under the provisions of said statute, quoted above (Code, Ann. Supp., § 113-1029). Code § 6-201, relating to appeals from the ordinary in general, provides that “An appeal shall lie to the superior court from any decision made by the court of ordinary, except an order appointing a temporary administrator; provided that whenever an appeal shall be taken from a decision of the ordinary, made under section 113-1229, such appeal shall not operate as a supersedeas, unless the executor or administrator shall first give a good and sufficient bond, payable to the ordinary and his successors in office, in such sum
The judge of the superior court did not err in holding that an appeal was a proper method for the defendants in error to seek a review of the judgment of the ordinary, granting to the plaintiff in error leave to convey the lands set apart as a year’s support for herself and the minor children.
When said appeal, which was de novo, came on for hearing in the superior court of said county, the appellants (now defendants in error) introduced three warranty deeds which were made by the appellee (now the plaintiff in error) to the lands set apart by the ordinary of said county in October, 1923, as a year’s support to the plaintiff in error, as the widow of B. T. Harnesberger, and their six minor children, to wit: (1) a warranty deed conveying described lands by the plaintiff in error to J. 0. Harnesberger, dated January 8, 1944; (2) a warranty deed executed by the plaintiff in error to Guy William Harnesberger on September 14, 1946, conveying described lands; (3) a warranty deed by the said plaintiff in error, dated January 25,1947, conveying described lands to Guy William Harnesberger. These deeds conveyed the fee-simple title, and the grantees thereof were children of the plaintiff in error and her late husband, B. T. Harnesberger, being of age, at the time of the conveyances. The three parcels of land conveyed constituted the property set apart to the plaintiff in error and said minor children for a year’s support. The record does not disclose that any objection to the introduction of these deeds was'made by the plaintiff in error. Upon the admission of these deeds in evidence, the defendants in error moved to dismiss the proceedings instituted by the plaintiff in error to obtain leave from the ordinary of said county to convey the lands theretofore set apart to her and the six minor children, the
This proceeding was brought under and pursuant to the provisions of the act of 1937 (Ga. L. 1937, pp. 861 et seq.; Code, Ann. Supp., §§ 113-1023 et seq.). Code (Ann. Supp.) § 113-1023 provides that, “Where property is set apart as a year’s support for the benefit of the widow alone, she shall thereafter own the same in fee, without restriction as to use, incumbrance, or disposition.” The section of said act immediately following (Code, Ann. Supp., § 113-1024) provides: “Where property is set apart as a year’s support for the joint benefit of the widow and her minor child or children, a conveyance or incumbrance of the same, or any or all parts thereof, by the widow shall convey or incumber the title and interest of the widow and shall be binding and conclusive upon her. The purchaser or lender shall not be responsible for the proper use or application of the proceeds.” Therefore, it appears that, by virtue of the provisions of the statute under which the proceedings for leave to convey were brought by the
The plaintiff in error had previously conveyed the property
Judgment affirmed.