Melton v. Camp

• Decision Date: 27 January 1905
• Citation: 121 Ga. 693,49 S.E. 690
• Court: Georgia Supreme Court
• Parties: MELTON v. CAMP.

49 S.E. 690

121 Ga. 693

MELTON

v.CAMP.

Supreme Court of Georgia.

Jan. 27, 1905.

WILL—CONSTRUCTION—NATURE OF ESTATE— HEIRS—LIEN OF JUDGMENTS.

1. Testator died, leaving his property to his wife for life or widowhood, and giving her power to dispose of it during such time, with remainder over, of all that might be undisposed of upon her death, to his lawful heirs, or, if she remarried, then to his lawful heirs; including her as one of such heirs. Held, (1) that the widow took an estate for life or widowhood, and also a power of disposal; (2) that the testator's lawful heirs at the time of his death, other than his wife, took a vested remainder in the property, subject to be defeated by the widow's exercising her power of disposal, and subject, in the event she remarried, to having her included among the remaindermen; (3) that, where one of such heirs died after the testator died, and the widow subsequently died without having remarried or disposed of the property, children of such deceased heir could take only through him, and his interest was subject to the lien of judgments against his estate.

(Syllabus by the Court.)

Error from Superior Court, Marlon County; W. B. Butt, Judge.

Garnishment proceedings between E. E. Melton and Effie Camp. Judgment for Camp, and Melton brings error. Reversed.

Cameron & Pinkston and TV. D. Crawford, for plaintiff in error.

John C. Butt and J. J. Dunham, for defendant in error.

SIMMONS, C. J. Judgment was obtained and fi. fa. issued for about $475 against the administrator of the estate of W. T. Melton, deceased. The estate being insolvent, the plaintiff in fi. fa. sued out summons of garnishment, and had the same served upon the administrator de bonis non cum testamento annexo of Mitson Melton, deceased. The garnishee answered that, as administrator, he had in his hands $140.29, arising from the proceeds of the estate of the testator, which was the amount W. T. Melton would have taken under the provisions of the will of the testator. The garnishee further stated in his answer that the heirs of W. T. Melton claimed title to this fund, not subject to the lien of the judgment, and he prayed that these heirs be made parties. Mrs. Ella Melton, the widow of W. T. Melton, and Mrs. Effie Camp, his daughter, claiming to be his only heirs at law, asked to be made parties, and filed a claim to the fund in the hands of the garnishee. They were made parties, but subsequently the name of Mrs. Melton was stricken, and the claim allowed to proceed in the name of Mrs. Camp alone. The case was submitted to the judge, without the intervention of a jury, upon the will of Mitson Melton and an agreed statement of facts. The judge decided in favor of the claimant, and the plaintiff in fl. fa. excepted.

The will of Mitson Melton disposed of his property as follows: "I do hereby give and bequeath all my estate both real and personal and all things to me belonging to beloved wife Julian Melton, to be by her con trolled, managed and disposed of with full power, liberty and privilege of selling and buying, trading and trafficking as seems right and proper to her, trusting all to her discretion as long as she remains a widow, or in case she should never marry any more, then during her natural life, and at any time while the property is under her control she may help any of the children that may marry and be in need, but this shall be at her discretion, but if she should marry again then the entire remainder or balance of the property shall be equally divided among my lawful heirs and she shall be entitled to receive an equal part with the other heirs, and at her death the entire balance or remainder shall be equally divided among my lawful heirs." From the agreed statement of facts it appeared that the testator, Mitson Melton, had died April 24, 1881, leaving his widow and eight children, one of whom was W. T. Melton; that the widow did not remarry, but died in March, 1902; that W. T. Melton died in November, 1901, leaving as his only heirs at law his widow and Mrs. Camp, the latter being his only child; that each of the distributive shares of the estate of Mitson Melton iu the hands of the administrator at the time of the service of the summons of garnishment was $140.29.

We think that the court below erred in holding that Mrs. Camp was entitled to a...