Hayes v. Hay, 35610

• Decision Date: 24 May 1955
• Docket Number: No. 1,No. 35610,35610,1
• Parties: J. O. HAYES et al. v. C. E. HAY, Administrator
• Court: Georgia Court of Appeals

Page 306

88 S.E.2d 306

92 Ga.App. 88

J. O. HAYES et al. v. C. E. HAY, Administrator.

No. 35610.

Court of Appeals of Georgia, Division No. 1.

May 24, 1955.

Syllabus by the Court

1. (a) In determining the amount of a year's support to be set aside to a widow, minor child or children it is estimated according to the circumstances and standing of the family previous to the death of the deceased husband, keeping in view also the solvency of the estate.

(b) The burden is upon the caveators who object to a return of the appraisers setting aside a year's support to the widow to prove that such return is excessive.

2. A female child must be fourteen years of age to contract marriage. The marriage of a person under the legal age is void and, if the parties to such a union do not live together after the child reaches the age of 14, there is not and never has existed a marriage between them.

(a) The caveators by alleging that the marriage between Isaac Hayes and the applicant was a ceremonial marriage, assumed the burden of showing its invalidity by clear and convincing evidence.

3. A special ground of a motion for new trial which is not complete in itself can not be passed upon by this court.

On July 7, 1953, Annie Lee Hayes, alleging herself to be the widow of Isaac Hayes, filed in the office of the Ordinary of Thomas County, Georgia, an application for a year's support. The appraisers' return set aside to the widow $3,000, and the widow selected to take the lands and personal property set out in said award, consisting of all the real estate and personal property belonging to the deceased, located in Thomas County, Georgia.

J. O. Hayes and Dorothy Hayes Graham, alleging themselves to be children of Isaac Hayes, filed their caveat to said return, and later filed an amendment to their original caveat.

The case came on for hearing before Honorable A. M. Singletary, Ordinary of Thomas County, Georgia, witnesses were sworn by both sides, and evidence was submitted. The court entered a judgment in said matter on September 8, 1953. On that date Annie Lee Hayes, the applicant for year's support, filed her appeal from said judgment to the Superior Court of Thomas County, Georgia, the case then being a de novo hearing before a jury in said court.

No additional pleadings other than those filed in the court of ordinary were filed by either party in the superior court. The case proceeded to trial before a jury at the April term 1954 of the superior court, a verdict was rendered by the jury at that time, and a judgment was entered in said case on April 22, 1954. The caveators filed their motion for new trial, and later amended the motion, which was overruled on all of the grounds on December 8, 1954. The appellant brought this matter here for review.

Steve M. Watkins, Thomasville, for plaintiff in error.

A. J. Whitehurst, C. E. Hay, Thomasville, for defendant in error.

QUILLIAN, Judge.

1. The application for a year's support filed by Annie Lee Hayes, and the caveat filed by J. O. Hayes and Dorothy Hayes Graham, made two issues: first, whether the appraisers set aside to the applicant more in property and money than she was justly and legally entitled to; second whether the applicant was the widow of Isaac Hayes from whose estate she sought to have the year's support set aside.

The caveators, J. O. Hayes and Dorothy Hayes Graham (plaintiffs in error here), contend that the evidence was not sufficient to sustain the verdict because it demanded a finding by the jury that the return of the appraisers was excessive, and that the applicant Annie Lee Hayes was not the widow of Isaac Hayes.

The burden of proof was upon the caveators who objected to the return of the appraisers on the ground that it was excessive. Mays v. Mays, 25 Ga.App. 515(3), 103 S.E. 805; Smith v. Smith, 115 Ga. 692(2), 42 S.E. 72.

In determining the amount of a year's support to be set aside to a widow or a widow and minor child or children, Code, § 113-1002 provides that the year's support set aside to the widow, minor child or children is to be estimated according to the circumstances and standing of the family previous to the death of the testator or intestate, and keeping in view also the solvency of the estate.

The evidence in the instant case shows the value of the estate and the amount set aside to the widow by the appraisers, and discloses that the amount set aside comprised the major part of the deceased's estate. But the evidence is entirely silent as to the standing of the family or the manner in which the deceased and the applicant had lived prior to his death. It follows that the caveators did not produce one of the necessary elements of evidence to show that the amount set aside to the applicant was more than she was entitled to as a year's support. In this connection see Young v. Anderson, 19 Ga.App. 551(2), 91 S.E. 900; Carter v. Davidson, 138 Ga. 317(3), 75 S.E. 155.

2. The caveat as amended set up simply that the applicant was not the widow of Isaac Hayes, and elaborating on that ground in their amendment, the caveators averred that she was not the widow of Isaac Hayes for the reasons, as stated in the amendment: '4. Annie Lee Hayes is the lawful wife of G. W. Sneed, also known as Jack Sneed, to whom she was married on June 28, 1931, in Thomas County, Georgia, from whom she has never been divorced and the said Jack Sneed is now in life. 5. Isaac Hayes, now deceased, was undivorced from a previous common law wife, Sara Anderson Hayes, at the time of his ceremonial marriage to Annie Lee Sneed on June 6, 1936, and said common law marriage has not been dissolved up to the present time.'

We consider the issue as to whether the applicant's previous marriage was an impediment to her marriage to the deceased.

It is elementary law that a female child 12 years of age cannot contract marriage. The marriage of a person under the legal age is void, and if the parties to such a union do not live together after the child reaches the age of 14, there is not and has never been a marriage between them. Code, (Ann.) § 53-102; Mims v. Hardware Mutual Casualty Co., 82 Ga.App. 210(1), 60 S.E.2d 501.

The applicant admitted that she had entered into a ceremonial marriage with Jack Sneed in 1931 and never obtained a divorce from him. However, she positively testified that she separated from Sneed the same year while she was only twelve years old and thereafter did not cohabit with him or permit him any marital right. Sneed and several witnesses denied the testimony of the applicant and swore that she lived with Sneed after she was fourteen years old. The applicant's testimony, while disputed, was sufficient evidence to carry the issue to the jury.

Sara Kelley testified that in 1920 she celebrated a ceremonial marriage with Isaac Hayes, authorized by a marriage license and performed by a minister, lived with him for a short time, separated from him for several years, resumed living with him in 1932, and continued to live with him thereafter for two years. She admitted that at the time she married Isaac Hayes she had a living husband, but testified that in 1929 he died and was not in life when she returned to live with Hayes. At this point her testimony is somewhat confused by an answer that she made to a question: 'Yes, when I moved in with Isaac, my first husband was living.' It did not definitely appear whether she alluded to the time at which she lived with Hayes immediately after her purported ceremonial marriage to him or to the time when she returned in 1932. She did not testify that he held her out publicly as his wife during the latter period that they dwelled together, nor did she directly swear to any agreement between her and him to resume the married status when she returned to his bed and board.

We now discuss the effect that the alleged common law marriage had on the status of the applicant as the deceased widow.

The caveators, by alleging that the...