Smith v. Smith

• Decision Date: 29 April 1895
• Citation: 96 Ga. 772,22 S.E. 332
• Parties: SMITH et al. v. SMITH.
• Court: Georgia Supreme Court

22 S.E. 332

96 Ga. 772

SMITH et al.

v.SMITH.

Supreme Court of Georgia.

April 29, 1895.

Receiver—Appointment—Abuse or Discretion.

Under the particular facts of this case, as disclosed by the record, there was no abuse of discretion in appointing a receiver.

(Syllabus by the Court.)

Error from superior court, Muscogee county; C. C. Smith, Judge.

Petition by Sophronia Smith against Solomon Smith and others. Brought forward from the last term. Code, §§ 4271a-4271c. There was a decree for petitioner, and defendants bring error. Affirmed.

The following is the official report:

Upon the petition of Sophronia Smith against Solomon, Squire, and Antoinette Smith, a receiver was appointed for certain property which the petitioner alleged belonged to the estate of William Smith at the death of said William. To this decision the defendants excepted. The petitioner alleged: Petitioner, as the widow of William Smith, applied for a year's support out of his estate. Commissioners were duly appointed, who made their report, citation issued, and the report of the commissioners was approved by the ordinary. Copies of said proceedings are attached. The commissioners reported that the widow should have for her year's support $350, which she had selected to take in a certain city lot in Columbus hereafter to be mentioned, said lot being of the value of $350; and this report was made the judgment of the court of ordinary at its November term (November 5th), 1894. William Smith died intestate, owing no debts, and seised and possessed of said lot, and lived and died in the residence upon said lot. There has been no administration upon his estate, nor is any necessary, as it only comprises said lot and a child's part in a small tract of land adjoining, which he inherited from a deceased wife, who is the mother of defendants. Upon the death of her husband, in July, 1894, defendants, being his children by a former marriage, took possession of said property, now have possession of it, and refuse to permit petitioner to enter it. William Smith left no minor children, defendants being each over 30 years old. Defendant's are each insolvent. Notwithstanding the petition for and the granting of the year's support, on the day the year's support was approved, and after it was approved, defendants appeared before the ordinary, and applied for an appeal by filing a pauper affidavit, copy of which is attached. They filed no objection in writing to the granting of the year's support, as is provided by section 2573 of the Code, and the Acts of 1884-85, p. 49, amendatory thereof; and no such objections have ever been filed, but the only paper filed Is the said pauper affidavit. The object of defendants in filing It was to delay petitioner in the possession and enjoyment of her year's support, and to enable defendants to keep and use the property. Under the facts above stated, defendants cannot now, in the superior court, file objections to the year's support, and the appeal has the effect of suspending the judgment of the ordinary without the requisite pleadings therefor. Were the appeal properly entered and objections filed, petitioner is entitled under the law to necessaries for her support from the estate of her husband pending the appeal. She is an old negro woman, poor, and physically unable to do much labor, and in great want of the necessaries of life. She prayed for the appointment of a receiver for the lot first above mentioned, to take it, and rent it, and pay her the small rental, which will not exceed $5 per month, for her support pending the appeal, and, upon termination of the appeal, for a decree giving her the land set apart for a year's support, for injunction and process. Defendants answered: It is not true that William Smith died seised and possessed of the land, but tbe land was tbe property of these respondents long before and at the time of his death. For more than seven years before his death, he was old and feeble, unable to earn a livelihood, and petitioner abandoned him, affording him no help or sustenance whatever, and so remained up to his death for more than seven years. When she had so abandoned him for more than seven years before his death, he gave the lot of land to these respondents, who were his children and heirs at law, and then turned over to them all the title deeds to the lot, and required them to support and take care of him until his death, and they did so for more than seven years, and up to his death, paying all...