Johnson v. City of Blackshear

• Decision Date: 07 October 1943
• Citation: 27 S.E.2d 316,196 Ga. 652
• Parties: JOHNSON et al. v. CITY OF BLACKSHEAR et al.
• Court: Georgia Supreme Court

27 S.E.2d 316

196 Ga. 652

JOHNSON et al. v. CITY OF BLACKSHEAR et al.

Supreme Court of Georgia

October 7, 1943

Syllabus by the Court.

1. In the instant suit against a municipality and its levying officer, for equitable relief to prevent enforcement of assessments and executions against described property for street paving, in which the plaintiff alleged preferred claim on ground that the property had been set apart to her mother as a year's support from the estate of her deceased father and afterwards inherited by the plaintiff as sole heir at law of her mother, it appearing also that the assessments for the paving were not made until several years after death of such husband and father, held, that where a year's support is duly set apart to a widow, it will take precedence over the lien of a paving assessment previously made against the same property as a part of her husband's estate, even though it was not made until after the husband's death if, as appeared in this case, the property against which it was made was still held and controlled by his executors as a part of his estate for the purpose of administration.

2. Where a widow applies for a year's support from the estate of her deceased husband, if she has elected previously to accept a provision made for her in her husband's will in lieu of year's support, the holder of a lien against property included in the appraisers' return may plead such election by way of caveat to the return, and cannot assert it collaterally against the year's support after it has been granted.

(a) An order by the court of ordinary admitting to record the return of appraisers in a year's support proceeding is not invalid because it was entered within less than twenty-eight days from the first publication of citation, where publication was made once a week for four calendar weeks next preceding the date of such order.

(b) A year's support may be set apart to a widow only from the estate of her deceased husband; and if property included therein does not as a matter of fact constitute a part of his estate, the judgment of the court of ordinary will not attach to such property, but will be void as applied thereto. Under this ruling, the amendment to the defendant's answer contained one valid attack upon the year's support; and therefore the court did not err in overruling the plaintiff's general demurrer assailing the amendment as a whole.

3. The evidence, however, failed to establish the alleged defense that the property set apart as a year's support had theretofore passed from the decedent's estate; nor did it otherwise appear that the year's support was invalid for any reason. Accordingly, the finding by the trial judge in favor of the defendants as to invalidity of the year's support was contrary to the evidence and without evidence to support it; and for this reason it was error to overrule the plaintiff's motion for a new trial.

This case involves a contest between assessments and executions for street paving in the City of Blackshear, and an award of a year's support to a widow; the property in controversy being three city lots owned by John A. Strickland at the time of his death, and later set apart to his wodow, Mrs. Leila M Strickland. After the property had thus been set apart to her as a year's support, Mrs. Strickland died intestate leaving as her sole heir at law a daughter, Mrs. Aline S. Johnson, nee Aline Moore Strickland. Mrs. Johnson was appointed as administratrix of her mother's estate, and thereafter as an individual and as administratrix filed a suit in equity against the City of Blackshear and M. L. Gray as city marshal, praying for injunction and general relief. By an amendment she prayed for cancellation of the assessments and the executions as clouds upon her title. Under the statute providing for such assessments, they merely created liens against the abutting property, and did not involve other liability. See amendment of the city charter, Ga.L.1927, p. 921.

The plaintiff's suit was based mainly upon two theories (1) that the year's support was superior to the paving assessments; and (2) that, regardless of priority, the executions were barred by the statute of limitations, more than seven years having elapsed since they were issued, and no such entry having been made and recorded as would keep them in life. The defendants answered, denying some of the plaintiff's allegations of fact, and admitting others, but not conceding her legal conclusions. Later they so amended their answer as to assert the following as affirmative defenses: (1) Election by Mrs. Strickland, before applying for a year's support, to accept a provision which her husband had made for her in his will, expressly in lieu of dower and year's support; (2) that she and her daughter, Aline Moore Strickland, had, under the terms of her husband's will, accepted title to the three city lots in controversy, before they were set apart to her as a year's support, and that she could not take a year's support in property which had thus ceased to be a part of her deceased husband's estate; (3) the judgment of the court of ordinary admitting to record the return of the appraisers in the year's support proceeding was void, because it was rendered within less than 28 days after the first publication of citation, the same having been published on July 11, 17, and 24, and August 2, 1940, and the order on such return having been entered on August 5, 1940.

The plaintiff filed a general demurrer to the defendants' amendment, which demurrer was overruled, and she excepted pendente lite. The case was then tried by consent before the judge without a jury. The judge after hearing evidence found, among other things, that the executions were dormant and unenforceable. He also, however, found that the year's support proceedings were void as to this property, because it did not belong to the estate of the deceased husband at the time it was set apart, and, on basis of these findings, entered a decree enjoining enforcement of the executions, but denying the relief of cancellation. The plaintiff's motion for a new trial, on the general grounds and on two special grounds, was overruled, and she excepted, assigning error on the rulings adverse to her.

It appeared from the pleadings and the evidence that John A. Strickland died in August, 1925, leaving a will which was probated in common form in September following. The will named as executors Alonzo J. Strickland, P. L. Pomeroy, and J. B. Truett, to whom letters testamentary were issued. In item 9 the testator provided a trust for a son named Robert, who died single in the year 1929. Items 10 and 11 were as follows: (10) 'I hereby give and bequeath subject to the provisions contained in the above paragraph to my beloved wife and daughter, Leila Moore Strickland and Aline Moore Strickland, all of the property that I die possessed of, both real, personal, and mixed, share and share alike, to be theirs in fee simple, absolutely and forever, provided operative such bequeath shall not become operative and effective until the time when my said daughter shall arrive at the age of 35 years.' (11) 'This provision for my wife to be in lieu of a year's support and all her right of dower in my said estate.'

The paving assessments were based upon an ordinance adopted by the mayor and council of the City of Blackshear on February 24, 1931. The executions were issued on April 7, 1931, against the three city lots in question, and against P. L. Pomeroy, A. J. Strickland, and J. B. Truett, 'executors of the John A. Strickland estate,' as owners of said property, for the full amount of the assessments. They were levied by the city marshal on April 5, 1941, upon the three lots respectively, 'as the property of J. B. Truett, surviving executor of the estate of John A. Strickland, deceased, and as the property of the heirs of John A. Strickland, deceased.' The facts stated in this paragraph were alleged in the plaintiff's petition, and were admitted in the defendants' answer.

The following was the only evidence touching election of Mrs. Strickland to take the devise instead of year's support, or as to whether any of the property that was set apart to her as a year's support had theretofore passed from the estate of her husband to herself and her daughter, as alleged by the defendants:

J. B Truett, a witness for the plaintiff, testified as follows: Direct examination: 'My name is J. B. Truett, I am one of the executors of the will of John A. Strickland. The other two executors were A. J. Strickland and P. L. Pomeroy. They are dead.' Cross-examination: 'I do not remember when the petition was filed for a year's support for the widow of John A. Strickland. I remember that it was filed. During the time that I was one of the executors of this will and the estate of John A. Strickland, Mrs. Strickland did receive benefits, moneys or such like, from the estate. I judge she did. I suppose I did pay her some money. She was entitled to it.' 'Q. (By Mr. Purdom.) The truth about the matter, she lived off this estate from the time Mr. Strickland died as long as you had anything to do with the estate, didn't she? A. I think she had some separate income. She got the returns from the estate, she and her daughter, Mrs. Johnson. They received returns of the estate from that time. It took quite a bit for Mrs. Strickland in the condition she was in physically, doctor's bills and such like. Mrs. Aline Johnson was the daughter of Mrs. Leila Strickland and Mr. John Strickland. The only heirs of Mr. John Strickland were his only son Robert and Miss Aline Strickland, who later married a Johnson, and Mrs. Leila Strickland, the widow. I am not an executor now. * * * I don't recall the date of my discharge. I...