Rogers v. Woods

• Decision Date: 16 July 1940
• Docket Number: 28275.
• Citation: 10 S.E.2d 404,63 Ga.App. 195
• Parties: ROGERS et al. v. WOODS.
• Court: Georgia Court of Appeals

10 S.E.2d 404

63 Ga.App. 195

ROGERS et al. v. WOODS.

No. 28275.

Court of Appeals of Georgia, Division No. 2.

July 16, 1940

Rehearing Denied July 30, 1940.

Syllabus by the Court.

Jesse M. Sellers, of Chatsworth, for plaintiffs in error.

C C. Pittman, of Cartersville, W. B. Robinson, of Chatsworth for defendant in error.

STEPHENS Presiding Judge.

Mrs John L. Woods, as the widow of J. L. Woods, deceased, applied for a year's support. On May 9, 1939, the ordinary appointed appraisers and directed that they set apart such year's support out of the estate of the deceased in either land or money as the widow shall elect. On the same day the appraisers made their return and set apart for the support and maintenance of the widow for the space of twelve months, $2,400 in real estate and $300 in personal property, selected by the widow, being a described lot of land in the county containing 160 acres more or less and also all "money, accounts and personal property of J. L. Woods or his estate, subject, however, to the payment of the remainder due on burial expenses and doctor's bills of J. L. Woods and costs of administration," together with all household and kitchen furniture of the deceased. At the June term, 1939, of the court of ordinary, S. J. Rogers and Miss Kate Rogers, as executor and executrix respectively of J. L. Woods, filed a caveat to the return of the appraisers and to the grant of a year's support to the widow upon the grounds: (1) That J. L. Woods died testate and named and appointed the caveators to execute his will [a copy thereof being attached to the caveat], which will has been duly

probated in common form in the court of ordinary of Murray County, and the will specifically provides for "a life support" for the widow, in that the will provides "that the whole of his estate [testator's] be kept together" and the testator thereby clearly intended for the provision in his will "for his widow's life support to be in lieu of a year's support to her out of his estate;" (2) that caveators, as executor and executrix, assented to the provisions of the will for the life support of Mrs. Woods, and she has lived upon the estate of J. L. Woods for some eight months since the probate of the will during which time she evidenced no intention to apply for a year's support, and therefore the widow has assented to the provisions of the will providing a life support for her, that is that her silence "over the stated period amounts to her full assent;" (3) that the will provides fully for the management, control and final disposition of the testator's entire estate, that such will was probated in common form and there has been no application by the widow for the caveators to offer to probate the will in solemn form, so there has been no evidenced intention upon her part to attack the will, and that "the return of the appraisers in the above stated matter, if such return be made the judgment of this court, would wholly nullify the provisions of said will *** and render the will itself entirely impotent," and (4) that by such return the entire estate of the testator was set apart as a year's support, and such "return and setting apart of the estate makes an unreasonable amount 'necessary for the applicant for support for the space of twelve months."' The caveators prayed that the return of the appraisers be disapproved and the application for a year's support disallowed.

Mrs. J. L. Woods filed in the court of ordinary a demurrer to the caveat. She demurred to paragraph 1 thereof upon the ground that it was a conclusion and failed to state sufficient facts to show any intention on the part of the testator to make provision in his will for his widow in lieu of a year's support. She demurred to paragraph 2 thereof on the ground that no sufficient facts were alleged to show "any assent by caveators or by Mrs. J. L. Woods," and that such paragraph was a conclusion and stated no matter or thing showing any assent to any provision of the will, such as would defeat her right to a year's support. Mrs. J. L. Woods demurred to the caveat "as a whole" upon the ground that no facts were set forth sufficient to show any intention upon the part of the testator to make provision in his will for her support in lieu of a year's support and no sufficient facts were set forth to show assent by the caveators or by her, to any provision of the will such as would show any election by her of the provision of the will in lieu of a year's support.

The ordinary disallowed this demurrer and judgment was rendered in favor of the caveators.

Thereupon on June 19, 1939, Mrs. J. L. Woods appealed to a jury in the superior court. On August 15, 1939, the judge of the superior court sustained the demurrer interposed by Mrs. J. L. Woods to the caveat to the return of the appraisers setting apart a year's support to her, and in so doing rendered the following judgment: "Upon consideration of the...