142 Ga. 127 | Ga. | 1914
Mrs. Mary E. Jones, formerly Mrs. J. A. Peeples Jr., for herself and minor children, applied to the ordinary of Camden county to have a year’s support set apart in the property of her deceased husband, J. A. Peeples Jr., alleged to have been a resident of that county at the time of his death. The appraisers reported that they had set apart a tract of land of the value of $300, which was the only property of the decedent to be found. J. E. Cooner filed a caveat on the ground, amongst others, that J. A. Peeples Jr., at the time of his death, was a resident of the State of Alabama, and under the laws of that State his widow and children were not entitled to a year’s support. The evidence of the caveator related principally to the residence of Peeples in Alabama at the time of his death. A verdict was rendered for the caveator; and the applicant moved for a new trial, which was refused, and she excepts.
In Mitchell v. Word, 64 Ga. 208, the intestate died in Florida, owning personal property in Georgia. The widow removed from Florida to Georgia after her husband’s death, and made application for a year’s support out of his estate. This court held that by comity the application could be made here, especially if there were no debts against the intestate in the State of his domicile; yet the amount of the allowance would be regulated by the law of Florida. The decision seems to have proceeded on the theory that personal property, wherever it may be, is to be distributed, in case of intestacy, according to the law of the domicile of the intestate. The decision was by two Justices, and Jackson, J., dissented, upon the ground that the year’s support of the family is a part of the expenses of administration, and must, therefore, be regulated by the law of the forum where administration is had; and that if administration
"Where the property out of which the year’s support is sought consists of land, there can be no doubt that the law of the State where the land is located must control in its administration. Otherwise it would be to hold that the law of the domicile of a non-resident intestate would control the inheritance laws of this State, in the distribution of land located within its limits. We do not approve the doctrine of the majority opinion in the case of Mitchell v. Word, supra. If the widow has the right to apply to the Georgia court for an allowance out of property located in Georgia, .it would seem that the Georgia law should control the amount of that allowance. We therefore think that a non-resident widow is entitled to apply for, and have set apart, a year’s support in land located in this State, owned by her deceased husband, whose domicile was in another State at the time of his death. In view of the fact that the case was made to turn on the issue of the residence of the applicant’s husband at the time of his death, the charge was harmful error, in that the jury were instructed in effect that the burden of proof was on the applicant to show that her husband died in Camden county, -in order for her to prevail, which would not have been necessary, even if the rule as to the burden of proof had been properly stated. Judgment reversed.