55 Ga. App. 500 | Ga. Ct. App. | 1937
Mrs. W. M. Hill applied to the court of ordinary for a year’s support out of the estate of her deceased husband. The appraisers made their return for $600, citation was issued, and A. O. Hill and Mrs. Paul English filed their caveat. When the objections to the allowance of the appraisers were made, counsel for the applicant, Mrs. Hill, dismissed the application, and the return of the appraisers was vacated. Counsel for Mrs. Hill then filed another application for a year’s support, new appraisers were appointed, a return was made for $1000 in land, citation issued, and caveat and objections were filed by the plaintiffs in error to the return of the second set of appraisers. The ordinary made the return of the appraisers the judgment of the court. The caveators appealed to the superior court, and the jury returned a verdict in favor of the applicant in the sum of $750 for a year’s support. A motion for new trial was overruled, and on this judgment the objectors assign error. The evidence shows that the applicant waited five years before applying for a year’s support; that soon after her husband’s death in 1930, she sold a great deal of property belonging to her husband’s estate, including mules, hogs, cattle, farming implements, farm products, and household furniture, and appropriated the money to her own use; that she sold two strips of land to the county for road purposes, and appropriated the money to her own use; that she received five years rent from the farm lands; that she received over $3000, out of which some expenses were paid; but, according to the evidence most favorable to the applicant, she has already received a net amount which was more than the jury, or the second set of appraisers, or the first set of appraisers, awarded her as a year’s support.
The special grounds of the motion for new trial are largely repetitions and reiterations of other grounds; and we will discuss only such principles invoked and involved, as we deem necessary to a proper determination of the case.
The second special ground of the motion alleges that the judge erred in charging the jury on an agreement between the applicant and the children and stepchildren of the applicant as to her taking the property used by her, as a gift; because on the trial he had
Ground 8 alleges that the court erred in charging the jury as follows: “Now, gentlemen, the court has charged you that under the law in no event must there be less than $100. Any amount above it, that if you should so determine, she is entitled to it. You may look to any advances made, or rather amounts received by, the widow from the assets of the estate. Take all of these facts in consideration in determining what should be fair and proper to set apart for the widow as a year’s support.” In giving this charge the court evidently intended to follow the law as embodied in the Code, § 113-1002, which provides a minimum of $100 for a year’s support. However, in the light of the pleadings and the evidence in this case, the charge, as given, was error. It is true that if the widow was entitled to a year’s support, it must have been, under the law, not less than $100; but this charge told the jury, in unqualified terms, that “in no event must there be less than $100,” and that they would determine what would be fair and proper to set apart for the widow. This charge virtually directed a verdict in favor of the applicant in an amount not less than $100. It strongly intimated an opinion that the widow had not already received the equivalent of a year’s support, as contended by the caveators, which was an issue in the case. Moreover, in view of the judge’s charge relative to the children agreeing that the widow should have the money she had already received as a gift, the court’s instruction to award the applicant not less than $100 strongly intimated an opinion that the children
Ground 9 alleges error, “Because the court, over objections of movants, denied to movants the right for movants’ attorney to make the concluding argument to the jury, in that the court, according to movants’ contention, erroneously ruled that the burden of proof was on the applicant, whereas, as a matter of law, the burden of proof was on the objectors which gave the objectors’ counsel the right to make the closing argument to the jury.” The bill of exceptions also shows that “before testimony was offered, the court ruled that the burden was upon the applicant, to which [ruling] objection was interposed by counsel for objectors and which objection was overruled.” “On the trial of an issue formed by objections filed by creditors of a deceased to the return of appraisers setting apart a year’s support to the widow, the burden of proof is on the objectors; and where both parties introduce evidence, counsel for the objectors are entitled to open and conclude the argument.” Lee v. English, 107 Ga. 152 (33 S. E. 39). “On the trial of an issue formed by objections filed by an assignee of adult children of a decedent to the return of appraisers setting apart a year’s support to the widow and minor children, the burden of proof is on the objector.” Jones v. Cooner, 142 Ga. 127 (82 S. E. 445); Robson v. Harris, 82 Ga. 153 (7 S. E. 926). “On the trial of an issue formed by objections of adult children of a decedent to a return of appraisers, setting apart a year’s support to the widow, the burden of proof is on the objectors.” Young v. Anderson, 19 Ga. App. 551 (91 S. E. 900). Under the foregoing authorities the burden was on the caveators successfully to traverse the prima facie right of the applicant to a year’s support; and the court erred in holding to the contrary and in denying to the objectors the right to open and conclude the argument. The foregoing authorities are differentiated from the case of Cheney v. Cheney, 73 Ga. 66, because
Judgment reversed.