Boggan v. Boggan, 55145

Decision Date09 March 1978
Docket NumberNo. 55145,No. 2,55145,2
Citation145 Ga.App. 401,243 S.E.2d 664
PartiesPolly R. BOGGAN v. E. Carrington BOGGAN et al
CourtGeorgia Court of Appeals

Greene, Buckley, DeRieux & Jones, Thomas B. Branch, III, Robert C. Lamar, Atlanta, for appellant.

Alston, Miller, Gaines, Sidney O. Smith, Jr., Jay D. Smith, Atlanta, for appellees.

McMURRAY, Judge.

This is a declaratory judgment action in which the petitioner, a widow, having sued for wrongful death of her husband, recovered a net sum of $99,756. She contends in this action that three of the children of the deceased, all sui juris, are each claiming a one-quarter interest in the proceeds and demanding that she distribute such shares to them with interest; that there is an actual controversy between the parties regarding the laws of descent and distribution and the law of wills, inasmuch as her husband by will made her his sole beneficiary. She prayed that she be entitled to the entire proceeds of the wrongful death action described above.

The defendants answered, and counterclaimed, admitting the major averments of the complaint but denying that the plaintiff was entitled to the entire proceeds of the settlement of the wrongful death action. They prayed that each receive one-quarter of the proceeds, that is, $24,939 each.

A joint motion for summary judgment was filed by all the parties admitting there are no disputed material issues of fact, and attaching a stipulation of facts thereto. Whereupon the court found the material facts to be as stipulated between the parties and concluded that the wrongful death statute is in derogation of the common law, must be strictly construed, and provides that recovery shall be held by the widow "subject to the law of descents," and that the funds held by the widow as a result of the wrongful death action were not a property right in the husband-father which could be devised by will since the cause of action did not arise until his death, the wrongful death action being a "statutorily-created cause of action," not a part of the husband-father's estate for tax purposes, nor subject to creditor's claims against the estate, albeit the amount of compensation is based on the value of the deceased's life to himself and not to the widow and children. The court then decreed that each of the defendants were to receive one fourth of the amount of the recovery, that is, $24,939 each, which "the plaintiff is hereby declared to be...

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3 cases
  • Barge-Wagener Const. Co. v. Morales
    • United States
    • Georgia Supreme Court
    • May 24, 1993
    ...actionable tort upon the decedent, this statutorily created action is not a property right of the decedent's estate. Boggan v. Boggan, 145 Ga.App. 401, 243 S.E.2d 664 (1978). The wrongful death action, like death benefits under workers' compensation, are rights vested in the surviving famil......
  • Walden v. John D. Archbold Memorial Hosp., Inc.
    • United States
    • Georgia Court of Appeals
    • October 16, 1990
    ...Ga. 491, 306 S.E.2d 911 (1983) is applicable here.) Construed strictly because it is in derogation of common law, Boggan v. Boggan, 145 Ga.App. 401, 402, 243 S.E.2d 664 (1978), OCGA § 51-4-2 clearly does not encompass the maintenance of a wrongful death action by the siblings of a decedent.......
  • McMahan v. Koppers Co., Inc., 80-7911
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 28, 1981 bound to hold any funds recovered for the benefit of the children of the deceased. See Ga.Code Ann. § 105-1304; Boggan v. Boggan, 145 Ga.App. 401, 243 S.E.2d 664 (1978). She may even settle the action without their consent, but must still retain the proceeds subject to their rights. Ga.C......

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