Cheney v. Cheney

• Decision Date: 18 March 1884
• Citation: 73 Ga. 66
• Parties: CHENEY et al. v. CHENEY.
• Court: Georgia Supreme Court

73 Ga. 66

CHENEY et al. v. CHENEY.

Supreme Court of Georgia.

March 18, 1884

February Term, 1884.

1. Where objections were filed to the return of commissioners appointed to set aside a year's support for a widow and minor children, and the case was carried by appeal to the superior court, the applicant stood in the place of the plaintiff in an ordinary case and, where both parties introduced evidence, was entitled to open and conclude.

2. The amount to be allowed for a year's support is to be estimated according to the circumstances and standing of the family previous to the death of its head, keeping in view the solvency of the estate. In order to show the circumstances and standing of the decedent's family, and to regulate the amount and character of the year's support which should be found for them (the estate being amply solvent), it was admissible to show the amount of the outlay made by the decedent in the maintenance and education of his adult children, the gifts made to them upon attaining their majority, and the advances made to some of them, for which they were not required to account.

( a. ) It is the duty of a father to provide for the maintenance, protection and education of his minor children. When he dies, the authorities of the state take his place in this respect, and will do what is deemed consistent with the honor and reputation of his family. Therefore, evidence of the cost and expense of keeping the minors at school and college was admissible, on the question of fixing the amount of year's support to be allowed from an amply solvent estate; and it was error to hold that this was not an element which went to make up the amount to be set apart, and that the facts could be considered by the jury only to determine the circumstances and standing of the family, but no further.

( b. ) This court has always regarded favorably claims for year's support of a family.

Practice in Superior Court. Parent and Child. Public Policy. Evidence. Before Judge FAIN. Chattooga Superior Court. September Term 1883.

A widow applied for a year's support on behalf of herself and her minor children. Objections were filed by one of the administrators, who was also a distributee. From the decision of the ordinary an appeal was taken. The evidence showed that the estate was worth between $250,000 and $300,000; that there were thirteen children, four of whom were issue by a former marriage; that all of them had attained their majority, except four, who were aged respectively 18, 16, 14 and 10 years; that the deceased had lived liberally, though not extravagantly; that some of the minors were absent attending school and college at the time of his death; and that the widow was in feeble health, produced by close confinement and attention to decedent. An allowance was made by the ordinary of certain personal property, certain household and kitchen furniture, and $5,000 in cash. On appeal to the superior court, the verdict of the jury reduced the money allowance to $2,500. The applicants moved for a new trial, which was refused, and they excepted. The principal errors alleged were, that the court gave the opening and conclusion to the objector, instead of to the applicants that he refused to allow them to show the amount of the outlay made by the intestate, in the maintenance and education of adult children, gifts made to them upon attaining their majority, and advancements made to some of them, for which they were not required to account. This was offered for the purpose of showing the jury the circumstances and standing of the intestate's family, and to regulate the amount and character of the year's support which should be found for them. The court also refused to admit testimony as to the cost and expense of keeping the minors at school and college, holding that the year's support and maintenance did not include education, and that such facts could be considered by the jury only to determine the circumstances and standing of the family, but no further that it was not an element that went to make up the amount set apart for a year's support; and charged that the jury could not consider the matter of education in estimating the amount thereof.

HAMILTON YANCEY; W. M. HENRY, for plaintiffs in error.

JOHN W MADDOX, for defendant.

HALL Justice.

This was an application, in behalf of a widow and four minor children, for a year's support out of the estate of the deceased husband and father. Objections were filed by one of the distributees, who was also one of the administrators, to the provision returned by the commissioners appointed to set it apart. These objections were overruled by the ordinary, an appeal was taken by the objector, and the case was heard on this appeal, and the provision reduced by the verdict of the jury. The applicants moved for a new trial, which was refused, and they brought the case to this court. The estate out of which this allowance was made was large, being worth between $250,000 and $300,000, and was not incumbered by debt or otherwise. There were thirteen children, four by a former marriage and nine by the applicant, all of whom, except four had attained their majority and were settled in life; these minors were aged respectively 18, 16, 14 and 10 years. Two of the...