This appeal presents for decision questions as to procedure for handling year’s support petitions.
Alonzo H. Knowles, resident in Bartow County, died testate on October 2, 1970. At that time he was married to Lula V. Knowles but they had been separated for one and one-half years prior to his death. Decedent’s will dated June 6, 1969, probated in solemn form on October 8, 1970, by his son, Frank A. Knowles, as executor contained no power of private sale and devised his entire estate to his son in fee simple. Apparently under the impression that the bequest of the entire estate vested title in him to a mobile home he made a private sale of this trailer. At daté of death decedent had an equity interest in this mobile home subject to title being in Midland Guardian Company of Georgia for the balance of the purchase price which was covered by credit life insurance. The purchase price debt was paid off by the credit life insurer.
On November 4, 1970, the widow applied to the Bartow Ordinary’s Court for a year’s support. On November 10 the ordinary appointed five individuals as appraisers and on *644 that same date had three of the appraisers "sworn to perform their duty according to law.” On the same date the three appraisers received such information as they desired from the attorney representing the widow concerning the estate and thereupon made their return. This report recited that there was "assessed and set apart as being necessary for the support and maintenance of said widow the sum of approximately $3,750, which the said widow has selected [sic] to take as follows: the mobile home . . .” which was specifically described together with the household furniture located in the mobile home. Although the executor was served by the deputy sheriff on November 10 with a copy of the petition he contends legal error in that he was not given notice of the "hearing” by the appraisers on November 10.
The executor’s caveat also averred other grounds of illegality. Among these was that he was devised the entire estate including the mobile home which he had sold prior to action by the appraisers so that title to the mobile home was divested by such sale and therefore it "was not a part of his father’s estate at that time and the same was not subject to the year’s support proceeding.” Another ground was that decedent did not have legal title to the mobile home because of the retention of title by the seller of the mobile home.
At the hearing in the court of ordinary the return of the appraisers was disallowed and the year’s support denied. Timely appeal was taken to the superior court.
Following a joint waiver of jury a de novo trial took place before the superior court judge. At the conclusion of the hearing the trial judge entered a finding "that the appraisers did not give the executor sufficient notice prior to assessing and setting apart” the year’s support and remanded the case to the court of ordinary for further proceedings. Having expressed some doubt as to such remand being permitted the trial judge contemporaneously entered the necessary certificate that the order should be subject to review and appeal.
*645
The trial court erred in remanding the proceedings to the court of ordinary.
Fish v. DuBose,
The effect of an appeal from the court of ordinary to the superior court as permitted under
Code
§ 6-201 places the matter in the superior court for "a de novo investigation. It brings up the whole record from the court below, and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not; either party is entitled to be heard on the whole merits of the case.”
Code
§ 6-501. As is stated in
Goodman v. Little,
"Such a case must be tried anew as if no trial had been had. [Citations.] It is not the province of the superior court on such an appeal to review and affirm or review the rulings of the ordinary, but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.”
Hall v. First Nat. Bank of Atlanta,
"The jury trial in the superior court on appeal was a de novo investigation, and the jury could make such allowances for a year’s support as the evidence in their judgment warranted.”
Calhoun Nat. Bank v. Slagle,
The trial court erred in ruling that notice had to be given by the appraisers as to their intention to hold a hearing or intention to act in compliance with the statutory duties imposed upon them in serving as appraisers to set apart the year’s support.
Counsel for the executor contends five days notice is required under Rule 6 of the Civil Practice Act codified in *646 subparagraph (d) of Code Ann. §81A-106. This contention is erroneous, as the word "hearing” as contained in our Civil Practice Act is limited in it context to court hearings on motions.
There is no provision in our law for notice to be given to anyone and no specified statutory rules to the appraisers as to the manner in which they should reach their decision. As is stated in
Holland v. Froklis,
Moore v. Moore,
"The widow’s right to a year’s support is not affected by the appraisers’ dereliction of duty for which she is not responsible.”
Whatley v. Watters,
*647 The appraisers had the legal right to include the mobile home in their report whether it be on the basis of an equity under the purchase money retention of title instrument or because legal title vested in the decedent’s estate upon payment of the insurance proceeds under the credit life insurance policy.
As is stated in Jackson’s Redfearn Wills & Adminstration in Georgia (3d Ed., 1965), Vol. 2, §333, p. 293, "... a year’s support may be set apart out of any assets to which the husband or father had legal title at the time of his death. In addition thereto, property in which the deceased had an equity at the time of his death may be set aside for a year’s support.” Citations in support of this statement by the author are
Winn v. Lunsford,
The appraisers therefore could have included the equity which decedent had in the mobile home as of the date of his death. Actually, however, upon payment of the proceeds of the credit life insurance legal title was vested in the decedent because payment of proceeds of credit life insurance inure to the benefit of the insured.
Betts v. Brown,
The attempted sale by the son under the assumption that he had title by the terms of the will was not legally effective because the claim of a widow for a year’s support is superior to legacies given by her husband in his will.
Kinard v. Clay,
Separation of a legally married couple does not deprive the widow of her right to a year’s support out of the husband’s estate.
Farris v. Battle,
On the retrial of this case in the superior court the return of the appraisers may be changed or modified as to the amount or property set apart. Jackson’s Redfearn, Wills & Administration in Georgia (3d Ed., 1965), Vol. 2, § 330, p. 280, and § 332, p. 289;
Casey v. Casey,
Judgment reversed.