Smith v. Smith

• Decision Date: 01 March 1946
• Docket Number: 30974.
• Parties: SMITH v. SMITH et al.
• Court: Georgia Court of Appeals

37 S.E.2d 439

73 Ga.App. 567

SMITH v. SMITH et al.

No. 30974.

Court of Appeals of Georgia, Division No. 1.

March 1, 1946

Rehearing Denied March 20, 1946.

Syllabus by the Court.

1. The overruling of the demurrer to the caveat was not error.

2. The verdict was authorized by the evidence and the law applicable thereto; and none of the special assignments of error shows cause for a reversal of the judgment.

Mr. L G. Smith died, intestate, on June 17, 1944, and his widow (who, by operation of law, became administratrix of his estate) filed a petition in the ordinary's court, on July 4, 1944, asking for a year's support for herself and her two minor children. The appraisers appointed by the ordinary set apart as a year's support, for the widow and her unmarried minor daughter (the other minor daughter being married), $1,500 in money and all of the household furniture belonging to the estate of the deceased. Upon the hearing of the application L. M. Smith, and six other children of L. G. Smith by his deceased first wife, filed a caveat to the return of the appraisers. The caveat was demurred to by the applicant, who also filed an answer thereto.

By consent, the case was appealed to the superior court. Upon the hearing of the demurrer it was overruled, and that judgment was properly excepted to pendente lite, and is assigned as error in the bill of exceptions. Upon the trial the jury returned a verdict finding against the return of the appraisers and denying a year's support.

The applicant's motion for a new trial was denied, and that ruling is complained of in the bill of exceptions. The caveat objected to the return of the appraisers on the following grounds: 1. The applicant is the second wife of L. G. Smith, deceased, and her minor unmarried daughter is her child by said deceased. 2. Your caveators are the children of said deceased by his first wife. 3. At the March term, 1944, of the court of ordinary, the applicant was appointed guardian of the person and property of her now deceased husband on the ground that he was incompetent and incapable of managing his estate. 4. Said deceased died on June 17, 1944. 5. During his lifetime the deceased sold $1,200 worth of timber and that sum was put in the bank to his credit, and while he was ill, and incompetent to attend to business, the applicant converted said sum to her own use and disposed of it and has refused to account for it. 6. The deceased, during his lifetime, owned and had in a warehouse in Washington, Georgia, 29 bales of cotton of the value of $3,000 or other large sum and, while he was ill and incompetent to attend to his business, the applicant obtained that sum and converted it to her own use and disposed of it, and has refused to account for it. 7. Said deceased, during his lifetime, owned cattle and livestock of the value of $1,000 or other large sum, and while he was ill and incompetent to attend to his business, the applicant disposed of and converted to her own use the cattle and livestock and has refused to account for same. 8. L. G. Smith during his lifetime had other sums of money in the bank, the amount thereof being unknown to your caveators, and while he was ill, incompetent and unable to attend to his business, the applicant converted said money to her own use and disposed of it, and has refused to account for it. 9. On May 2nd, 1942, applicant, through undue influence, at a time when said Smith was ill and incompetent, persuaded him to execute and deliver to her a warranty deed to 121 acres of land, more or less, same being his home place, and in that deed he also conveyed to her all farm machinery, equipment, tools and wagons owned by him, and a stock of goods and merchandise owned by him, the value thereof being unknown to your caveators; and in the same deed he conveyed to her a 1931 model Chevrolet automobile. And though said deed was executed on May 2nd, 1942, it was not recorded until February 9th, 1944, which was after your caveators had objected to the manner in which she was converting her husband's property to her own use, and after they had informed her that they were going to apply to the ordinary to have a guardian appointed for her husband. 10. On October 22, 1942, her husband sold real estate in Tignall to V. L. Beard for $375, and that sum was obtained from her husband by the applicant and converted to her own use and she has failed and refused to account for it. 11. On or about the ___ day of _____ 19__ she, through undue influence and when her husband was ill and incompetent, persuaded him to execute a certain trust agreement in favor of their two minor children setting aside to them $1,600 in cash, and providing that upon the death of their father, she would become the trustee of said sum, said agreement being duly recorded in the office of the clerk of the superior court of Elbert County, Ga. 12. During the past 12 months she has bought 3 or more automobiles with funds of her said husband and has refused to account for said funds. 13. She has made gifts to her minor children of large sums of money belonging to her husband, the amount being unknown to your caveators, and has refused to account for said sums. 14. Her application for a year's support is merely a scheme to deplete the residue of her husband's estate and to cover up the sums illegally converted to her own use and to protect herself and her surety on her guardian's bond. 15-16. Under the above-stated facts said sum of $1,500 is excessive and disproportionate to the value of said estate, and unjust and inequitable to your caveators.

The applicant demurred to paragraphs 5, 6, 9, 10, 12, 13 and 14 of the caveat because the allegations therein were not relevant to the issues of this proceeding. She demurred to paragraphs 7 and 8 of the caveat because their allegations were not relevant to the issues of a proceeding for a year's support, but should be determined in a final settlement of the estate of the deceased, or in an action for the recovery of any sums that might be due the estate by the applicant. She demurred to paragraph 11 on the ground that the facts therein alleged are not relevant to the issues in this proceeding, but should be determined in an action to set aside such conveyances if made under the facts alleged. She demurred to paragraphs 15 and 16 'because they are merely conclusions of the caveators and no facts are alleged to substantiate the objection of caveators to the amount set aside as year's support to applicant and the minor child.' The applicant in her answer admitted the allegations of paragraphs 1, 2, 3 and 4 of the caveat, and denied those of paragraphs 5, 6, 7, 10, 11, 12, 13, 14, 15 and 16. In denying the allegations of paragraph 6 she stated that her husband 'did have certain cotton in the warehouse which was sold and she is ready and willing at the proper time to make full and complete showing for the same.' In answer...