Rogers v. Woods

• Decision Date: 18 October 1941
• Docket Number: No. 29095.,29095.
• Citation: 17 S.E.2d 283
• Parties: ROGERS et al. v. WOODS.
• Court: Georgia Court of Appeals

17 S.E.2d 283

ROGERS et al.

v.WOODS.

No. 29095.

Court of Appeals of Georgia,

Division No. 2.

Oct. 18, 1941.

Rehearing Denied Nov. 22, 1941.

Syllabus by the Court.

The conflicting evidence authorized a verdict in favor of the appraisers' return setting apart a year's support to the widow, and the court did not err in overruling the motion for new trial.

Error from Superior, Court, Murray County; John C. Mitchell, Judge.

Proceeding by S. J. Rogers and another, executor and executrix of the will of J. L. Woods, deceased, on a caveat to the return of appraisers appointed to set apart a year's support to Mrs. J. L. Woods. To review an adverse judgment, the executor and executrix bring error.

Affirmed.

See, also, 63 Ga.App. 195, 10 S.E.2d 404.

The executor and executrix of the will of J. L. Woods filed a caveat to the return of the appraisers appointed to set apart a year's support to Mrs. J. L. Woods. The ordinary sustained the caveat and the widow appealed to the superior court. The jury found in favor of the appraisers' return. The exception here is to the overruling of the caveators' motion for new trial. The grounds of the amended caveat were that as the will of the deceased was inconsistent with the application for and setting aside of a year's support the widow was precluded from taking a year's support by having elected to take under the will;that the return set apart an unreasonable amount; that the application was not a bona fide application because the applicant pointed out all the property of the estate, and all of the estate was set aside to the widow.

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

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

FELTON, Judge.

1. The court did not err in admitting in evidence the return of the appraisers over the objections that the return showed that the whole of the estate was set aside and that the return showed it was made on the same day the appraisers were appointed.

2. The court did not err in refusing to rule out the testimony of the witness Mark Wilbanks, to the effect that $250 a month would be a reasonable charge for a person to wait on the widow. The grounds of the motion to rule out the evidence were that the witness stated no facts upon which to base the opinion, and that the testimony was highly speculative. While the witness might not have given as many facts as would have been necessary to make his opinion absolutely convincing, he did say that he was acquainted with the Woods family; that he married one of the Woods girls; that he hadn't been around the premises in the last two years as theretofore; that the widow was considerable care.

3. The court did not give undue emphasis to the applicant's contentions, nor did it minimize those of the caveators.

4. It was not error for the court to charge the jury that the return of the appraisers made a prima facie case for the widow when the only issue made by the evidence was whether the amount set apart was excessive. Wilson v. Wilson, 54 Ga.App. 770, 189 S.E. 71.

5, 6. It was not error for the court to charge the jury as follows: "I charge you that a widow is entitled to the possession of the mansion in which her husband left her at the time of his death until dower or its equivalent has been assigned to her, and this right to its possession is in addition to and independent of her year's support.... I give you in charge section 5258 of the [Civil] Code of this State, which is as follows: 'The application for dower shall...