Mckemie v. Mckemie

• Decision Date: 01 December 1947
• Docket Number: No. 31598.,31598.
• Citation: 45 S.E.2d 456
• Parties: McKEMIE. v. McKEMIE.
• Court: Georgia Court of Appeals

45 S.E.2d 456

McKEMIE.

v.McKEMIE.

No. 31598.

Court of Appeals of Georgia,

Division No. 2.

Dec. 1, 1947.

Syllabus by the Court.

There was no error requiring the grant of a new trial in the various rulings and instructions excepted to and stated in the opinion of the Court, infra; and the evidence authorized the verdict.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Proceeding in the matter of the estate of William Johnson McKemie on the application of Evelyn Grace Woods McKemie, decedent's widow, for a year's support out of the estate, and caveat to the application by Kittie McKemie, individually and as temporary administratrix of decedent's estate. To review a judgment for widow, objector brings error.

Affirmed.

Mrs. Evelyn Grace Woods McKemie, widow of William Johnson McKemie, hereinafter referred to as the plaintiff, filed application with the ordinary of Fulton County for a year's support out of the estate of her late husband. The ordinary appointed five appraisers; a return was made by three of the appraisers awarding the plaintiff certain household and kitchen furniture and the sum of $2,000.00. Miss Kittie McKemie, hereinafter referred to as the defendant, as temporary administratrix of the estate of the deceased and individ ually, filed objections by caveat to the return of the appraisers on the ground that the return was excessive and that she as an individual was entitled to the beneficial ownership of one-half of the property belonging to the deceased at the time of his-death and other reasons stated in the caveat.

The ordinary overruled the caveat and allowed as a year's support the award made by the appraisers. The defendant appealed to the superior court; after hearing, the jury returned a verdict in favor of the return of the appraisers and against the caveat. The defendant filed a motion for new trial on the general and six special grounds; this motion was overruled, and the defendant excepted.

Durwood T. Pye, of Atlanta, for plaintiff in error.

Hugh Howell, Jr., Heyman, Howell & Heyman, and John I. Hynds, all of Atlanta, for defendant in error.

MacINTYRE, Presiding Judge.

Here the widow is the plaintiff seeking in this proceeding to recover the portion of the estate of her deceased husband in the hands of the administratrix to which she is entitled. Hence, the burden of proof is upon the widow to show that she is entitled to have such property set apart as a year's support out of such estate. On such issue between the widow and the administratrix of such estate, unless the widow introduces evidence showing her right to such property, the administratrix should prevail, but if, as here, the widow introduces in evidence the return of the appraisers setting aside such property, nothing else appearing, the widow, having made out a prima facie case, would be entitled to recover. If thereupon the caveatrix introduces evidence which satisfies the minds of the jurors by a preponderance of the evidence that the caveatrix has sustained her objections stated in the caveat, then it would be the duty of the jury to set aside such return as made by the appraisers. Anderson v. Caldwell, 66 Ga.App. 703 (3), 19 S.E.2d 202; Cheney v. Cheney, 73 Ga. 66.

If the caveat filed by Kittie McKemie be an adverse claim by her individ-ually as a creditor or distributee to the property, or some of the property set apart as a year's support to the widow by the return of the appraisers appointed for such purpose, then, on this issue, the burden of proof is on Kittie McKemie to sustain her adverse claim. Anderson v. Caldwell, supra; Robson v. Harris, 82 Ga. 153, 7 S.E. 926. Thus in the instant case, whether the caveat was filed by Kittie McKemie in her individual capacity as creditor or distributee, or in her capacity as administratrix of such estate, when the widow introduced in evidence the return of the appraisers, she made out a prima facie case, and at this stage of the proceeding whether Kittie McKemie, the caveatrix, was proceeding in her capacity of administratrix or individually, or both, the burden of...