17 S.E.2d 57 | Ga. | 1941
1. An affidavit made by a plaintiff in error, who is the administrator with the will annexed, in a suit filed by him in his representative capacity, which recites that "he as administrator with will annexed of the estate of W. R. Friddell, deceased, has no funds or property in his hands as said administrator belonging to said estate with which to pay the accrued costs or give security for the eventual condemnation-money in said case, and that he is advised and believes that he has good cause for writ of error," but containing no recital that the inability to pay costs arose from the poverty of the estate he represented, is not sufficient to relieve the attorneys for plaintiff in error from the payment of costs due the State in this court. Code, § 6-1004; Barfield v. Hartley,
2. A return of appraisers to set apart a year's support stated that they have set apart "the sum of six hundred and ninety dollars which the said widow has selected to take as follows: fifty-four acres of land lot No. 82, 3d dist., 5th section, the value thereof four hundred dollars; house and barn and storehouse in McWhorter — in land lot No. 81 — contains about one-half acre — value two hundred dollars; two mules, value seventy-five dollars; wagon, farming tools, fifteen dollars; total six hundred and ninety dollars." The return was filed with the ordinary on April 6, 1936, and on April 16, 1936, one of the appraisers left with the ordinary a plat containing a correct and definite description of the real estate. The uncontradicted testimony showed that at the time the appraisal was made the appraisers authorized this one of their number *12 to run the line and make a plat of the property. He testified that the plat contained a description of the property set apart, and that he filed it as a part of the return of the appraisers. Held, that in a suit by the personal representative of the deceased husband, against one who acquired the property from the widow subsequently to the year's support proceedings, the return of the appraisers will not be treated as invalid on the ground that there is no sufficiently definite description of the real estate mentioned therein.
Petitioner contends, that the description of the real estate in the report of the appraisers who set apart the year's support is too vague and indefinite to be valid, and that the defendant is in unlawful possession of said real property; that the plat, not being filed as a part of the judgment of the court of ordinary, and no reference being made to it in the court's judgment, was not and could not be made a part of said award of a year's support in favor of Mrs. Friddell, and that the same is not binding upon plaintiff in this action.
At the conclusion of the evidence the plaintiff moved for a directed verdict in his favor, which was denied. The defendant's motion for verdict in his favor was granted, and the plaintiff excepted.
The pauper affidavit filed with the clerk was as follows, omitting the caption: "Personally appeared before the undersigned attesting officer, who by law has authority to administer an oath, J. E. Wall, the subscriber, who, being duly sworn, on oath says that he has presented to said judge and gotten him to certify and sign the bill of exceptions therein carrying the case to the Supreme Court of Georgia; and affiant now, on and before the filing of said bill of exceptions therein, makes and files this his affidavit for obtaining a supersedeas in said case, and on oath says that he as administrator with will annexed of the estate of W. R. Friddell, deceased, has no funds or property in his hands as said administrator belonging to said estate with which to pay the accrued costs or give security for the eventual condemnation-money in said case, and that he is advised and believes that he has good cause for writ of error." Signed by the plaintiff and duly attested. Since Griffith's interest in the land rests upon the fact that he is the only heir at law of his mother whose claim arose out of a year's-support proceeding as the widow of the one whose administrator with the will annexed brings this suit, the issue turns on the question of the validity of the year's-support *14 proceeding. It is the position of the administrator that no title passed from the estate of Friddell, for the reason that the return of the appraisers was as to the real estate void for lack of a definite description. This contention carries with it the insistence that the court should not look beyond the writing signed by the three appraisers on April 6, 1936, which was that day filed with the ordinary.
Although in Cowan v. Corbett,
It is not suggested that there was any irregularity in the application or appointment of the appraisers, or that the ordinary of Douglas County was without jurisdiction to act upon the same, together with the return. It is not claimed that the map or plat did not with sufficient particularity described the real estate. It is not denied that the plat was by one of the appraisers filed with the ordinary, although this was some days after the filing with that official the report which bore the signatures of three appraisers, and which made no reference to a map or plat. The following testimony of the ordinary is without contradiction: "When I entered the judgment granting the year's support, I think the plat was in the office with the papers. I annexed the plat there as my method of recording. The plat was filed with me. Failure on my part to enter a filing date on the plat must have been an omission on my part. The plat was filed in my office on or about April 15, and it was recorded or entered on the book along with the record of the other proceedings, as a part of my judgment. The plat is an office *15 paper and belongs with the office papers in my office in connection with this year's support." The map itself shows a drawing or tracing, indicating lot numbers, measurements and boundaries, with the name "Mrs. W. R. Friddell" written across a tract of fifty-six and four tenths acres in lot No. 82, and a quarter of an acre tract in lot No. 81. At the bottom of the drawing are the following words and figures: "For a year's support. Exhibit B. Mrs. Friddell's property contains 56 acres in land lot 82 and in 81. Fractions of acre located in Douglas County, Georgia, in 3 Dist. 5 Section. Scale 400 ft.=1 inch. This 15 April, 1936. I certify above plats. L. N. Price, Surveyor." The uncontradicted testimony further was that the plat contained a description of the property that the appraisers set apart as a year's support for Mrs. Friddell, and that Price filed it as a part of the return of the appraisers, this being done in compliance with the instructions from the other appraisers and by the authority of them all, at the time the appraisal was made.
We might agree to the position of counsel for the plaintiff in error that if the appraisers in their report setting apart a year's support to the widow had set apart as an item therein a tract of land described as "fifty-four acres of land lot No. 82, 3d Dist. 5th Section, the value thereof $400.00," such description would have been so vague and indefinite as to make such item ineffective as a part of the year's support. CompareBeavers v. Wilson,
It has been held by this court that the requirement of the act of 1918 (Ga. L. 1918, p. 122; Code § 113-1005) that the appraisers shall file with their return a plat is not mandatory.Wilcox v. Beechwood Band Mill Co., and Wessel-Duval Co. v. Ramsey, supra.
Counsel for the defendant urge the contention, that, independently of the aid afforded by the definiteness of the description contained in the plat, the proceeding was not void, for two other reasons: first, that there was undisputed testimony that the land referred to was all the land the decedent owned that any of the witnesses knew about (compare Hightower v.Hightower,
There was no error in directing the verdict for the defendant.
Judgment affirmed. All the Justices concur.