Hill v. Hill

• Decision Date: 17 March 1937
• Docket Number: No. 25817,25817
• Citation: 55 Ga.App. 500,190 S.E. 411
• Parties: HILL et al. v. HILL.
• Court: Georgia Court of Appeals

55 Ga.App. 500

190 S.E. 411

HILL et al.

v.HILL.

No. 25817

Court of Appeals of Georgia. Division No. 1.

March 17, 1937.

.

Syllabus by the Court.

The court erred in overruling the motion for new trial.

Error from Superior Court, Taylor County; C. F. McLaughlin, Judge.

Application by Mrs. W. M. Hill for a year's support, opposed by A. O. Hill and others, who filed a caveat. Judgment for the applicant, and the caveators bring error.

Reversed.

Gilbert C. Robinson, of Montezuma, for plaintiffs in error.

C. W. Foy, of Butler, for defendant in error.

BROYLES, Chief Judge.

Mrs. W. M, Hill applied to the court of ordinary for a year's support out of the estate of her deceased husband. The appraisers made their return for $600, citation was issued, and A. O. Hill and Mrs. Paul English filed their caveat. When the objections to the allowance of the appraisers were made, counsel for the applicant, Mrs. Hill, dismissed the application for a year's support, and the return of the appraisers was vacated. Counsel for Mrs. Hill then filed another application for a year's support, new appraisers were appointed, a return was made for $1,000 in land, citation issued, and caveat and objections were filed by plaintiffs in error to the return of the second set of appraisers. The ordinary made the return of the appraisers the judgment of the court. The caveators appealed to the superior court, and the jury returned a verdict in favor of the applicant in the sum of $750 for a year's support. The objectors made a motion for new trial which was overruled, and on this judgment they assign error.

The evidence shows that the applicant waited five years before applying for a year's support; that soon after her husband's death in 1930, she sold a great deal of property belonging to her husband's estate, including mules, hogs, cattle, farming implements, farm products, and household furniture, and appropriated the money to her own use; that she sold two strips of land to the county for road purposes and appropriated the money to her own use; and that she received five years' rent from the farm lands; that she received over $3,000, out of which some expenses were paid; but, according to the evidence most favorable to the applicant, she has already received a net amount which was more than the jury, or the second set of appraisers, or the first set of appraisers, awarded her as a year's support.

The special grounds of the motion for new trial are largely repetitions and reiterations of other grounds of the motion, and we will discuss only such principles invoked and involved, as we deem necessary to a proper determination of the case.

A subdivision of special ground 1 of the motion raises the point that there is no provision of law in this state for the appointment of a second set of appraisers. The caveat alleges that counsel for the applicant, on objection being made to the year's support, dismissed the application therefor and requested the court to enter an order vacating the return of the first appraisers, which was done; and that after the dismissal and retirement from the court of objectors and counsel for objectors, the second application was filed and new appraisers appointed. It should be borne in mind that this was not an application for a second year's support, but was a second application for one year's support, and for new appraisers to be appointed to fix one year's support. We know of no law to authorize the appointment of a second set of appraisers, where the first appraisers have been duly appointed and madea return in accordance with law. Counsel for the applicant testified that the first application was dismissed because "he did not consider that the amount set apart, to wit, $600, was sufficient, and that they wanted to have another set of appraisers pass on this matter." If this procedure were permissible, he could dismiss the second application and vacate the return of the second appraisers, and continue such tactics until he got a return that suited him. "There is no provision in case the objections are sustained that the matter be again referred to the same or different appraisers. Where the ap-praisees file their return with the ordinary, they have discharged their full duty. Their commission becomes functus officio. The statute does not contemplate any further action on their part, or the appointment of new appraisers." Winn v. Lunsford, 130 Ga. 436, 441, 61 S.E. 9, 11. However, since the law does provide for a year's support, and since the ordinary testified that "the first application for year's support and the return of the appraisers was not recorded, but was destroyed when the second application was filed, " and since the trial in the superior court was a de novo investigation in which all pertinent evidence was admissible (Code, § 6-501; Moody v. Moody, 29 Ga. 519, 521), and it being the superior court judgment which is assigned as error and which this court is reviewing, we will not go back of that judgment specifically to pass on the judgment of the court of ordinary permitting this very unusual procedure, but we shall consider it in its relation to the trial in the superior court, and in reaching the decision hereinafter made.

The motion for new trial avers that the court did not sufficiently charge the jury on certain material issues and contentions of movant, to wit, that the applicant kept the property for five years, and appropriated to her own use more than a year's support, and then applied for a year's support in addition to what she had already used, and that she should be charged with the value of what she had already consumed. "While a party cannot complain of the failure of the court to give in charge to the jury a request not in writing, he can complain, without any request having been made at all, of the fact that the court has not presented, with reasonable fullness land clearness (if this be true) a material and substantial contention made by him." Whelchel v. Gainesville, etc., Co., 116 Ga. 431 (3), 42 S.E. 776. "On the trial of a case it is the duty of the court, with or without request, to charge the jury the law applicable to-the substantial issues involved; and, in the absence of such instruction, the verdict will be set aside." Pusser v. Thompson, 147 Ga. 60 (1), 92 S.E. 866. "A widow who has drawn her support from her husband's estate during the year succeeding his death, though it was not formally set apart...