Knowles v. Knowles, 46929

• Citation: 125 Ga.App. 642,188 S.E.2d 800
• Decision Date: 03 March 1972
• Docket Number: No. 2,No. 46929,46929,2
• Parties: Frank A. KNOWLES v. Lula V. KNOWLES
• Court: United States Court of Appeals (Georgia)

Page 800

188 S.E.2d 800

125 Ga.App. 642

Frank A. KNOWLES v. Lula V. KNOWLES.

No. 46929.

Court of Appeals of Georgia, Division No. 2.

March 3, 1972.

Syllabus by the Court

1. Where an appeal is taken to the superior court from the court of ordinary on a year's support ruling, the superior court is not authorized to remand the case for further action in the court of ordinary.

2. Appraisers appointed by the court of ordinary under the provisions of Code Ann. § 113-1002 to set apart a year's support are not required to give any notice of their intention to act or hold a hearing.

3. A year's support may include property in which decedent had an equity at date of death as well as full legal title, including property on which credit life insurance is carried, proceeds of which upon payment inure to the benefit of the estate of the insured.

4. Where property of a decedent is sold prior to the setting aside of a year's support without compliance with Code Ann. § 113-1035 which requires authority of a court order or under authority contained in a will, the purported sale does not pass title as against a claim thereto granted by a year's support.

5. Separation of the husband, of a legally married couple, does not deprive the widow of her right to a year's support.

Greene & Greene, William B. Greene, Cartersville, for appellant.

Jere F. White, Cartersville, for appellee.

CLARK, Judge.

This appeal presents for decision questions as to procedure for handling year's support petitions.

Alonzo H. Knowles, resident in Bartow County, died testate on October 2, 1970. At that time he was married to Lula V. Knowles but they had been separated for one and one-half years prior to his death. Decedent's will dated June 6, 1969, probated in solemn form on October 8, 1970, by his son, Frank A. Knowles, as executor contained no power of private sale and devised his entire estate to his son in fee simple. Apparently under the impression that the bequest of the entire estate vested title in him to a mobile home he made a private sale of this trailer. At date of death decedent had an equity interest in this mobile home subject to title being in Midland Guardian Company of Georgia for the balance of the purchase price which was covered by credit life insurance. The purchase price debt was paid off by the credit life insurer.

On November 4, 1970, the widow applied to the Bartow Ordinary's Court for a year's support. On November 10 the ordinary appointed five individuals as appraisers and on that same date had three of the appraisers 'sworn to perform their duty according to law.' On the same date the three appraisers received such information as they desired from the attorney representing the widow concerning the estate and thereupon made their return. This report recited that there was 'assessed and set apart as being necessary for the support and maintenance of said widow the sum of approximately $3,750, which the said widow has selected (sic) to take as follows: the mobile home . . .' which was specifically described together with the household furniture located in the mobile home. Although the executor was served by the deputy sheriff on November 10 with a copy of the petition he contends legal error in that he was not given notice of the 'hearing' by the appraisers on November 10.

The executor's caveat also averred other grounds of illegality. Among these was that he was devised the entire estate including the mobile home which he had sold prior to action by the appraisers so that title to the mobile home was divested by such sale and therefore it 'was not a part of his father's estate at that time and the same was not subject to the year's support proceeding.' Another ground was that decedent did not have legal title to the mobile home because of the retention of title by the seller of the mobile home.

At the hearing in the court of ordinary the return of the appraisers was disallowed and the year's support denied. Timely appeal was taken to the superior court.

Following a joint waiver of jury a de novo trial took place before the superior court judge. At the conclusion of the hearing the trial judge entered a finding 'that the appraisers did not give the executor sufficient notice prior to assessing and setting apart' the year's support and remanded the case to the court of ordinary for further proceedings. Having expressed some doubt as to such remand being permitted the trial judge contemporaneously entered the necessary certificate that the order should be subject to review and appeal.

1. The trial court erred in remanding the proceedings to the court of ordinary. Fish v. DuBose, 121 Ga. 304, 48 S.E. 915.

The effect of an appeal from the court of ordinary to the superior court as permitted under Code § 6-201 places the matter in the superior court '(for) a de novo investigation. It brings up the whole record from the court below, and all competent evidence shall be admissible on the trial thereof, whethr adduced on a former trial or not; either party is entitled to be heard on the whole merits of the case.' Code § 6-501. As is stated in Goodman v. Little, 213 Ga. 178, 179, 97 S.E.2d 567, 569, and repeated in the same case in 96 Ga.App. 110, 112, 99 S.E.2d 517 'the case on appeal from the Court of Ordinary brings the whole case up for a new hearing' but with the same jurisdiction as was possessed by the court of ordinary. Accord, Ingraham v. Reynolds, 176 Ga. 772, 773, 168 S.E. 875; Griffin v. Securities Inv. Co., 181 Ga. 455, 182 S.E. 594; Strickland v. Strickland, 99 Ga.App. 531, 109 S.E.2d 289.

'Such a case must be tried anew as if no trial had been had. (Citations). It is not the province of the superior court on such an appeal to review and affirm or review the rulings of the ordinary, but to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.' Hall v. First Nat'l Bank of Atlanta, 85 Ga.App. 498, 69 S.E.2d 679.

'The jury trial in the superior court, on appeal was a de novo investigation, and the jury could make such allowances for a year's support as the evidence in their judgment warranted.' Calhoun National Bank v. Slagle, 53 Ga.App. 553, 556, 186 S.E. 445.

2. The trial court erred in ruling that notice had to be given by the appraisers as to their intention to hold a hearing or intention to act in compliance with the statutory duties imposed upon them in serving as appraisers to set apart the year's support.

Counsel for the executor contends five days' notice is required under Rule 6 of the Civil Practice Act codified in subparagraph (d) of Code Ann. § 81A-106. This contention is erroneous, as the word 'hearing' as contained in our Civil Practice Act is limited in its context to court hearings on motions.

There is no provision in our law for notice to be given to anyone nor any specified statutory rules to the appraisers as to the manner in which they should reach their decision. As is stated in Holland v. Froklis, 89 Ga.App. 768, 81 S.E.2d 317: 'No other service is necessary, except that, if any administrator has been appointed, notice of the intention to make such application must be given to such administrator. Code § 113-1002.' The notice is to be given before the appraisers are appointed. Code § 113-1002; Parks v. Gresham, 185 Ga. 470, 195 S.E. 728.

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