Strickland v. Miles
| Decision Date | 14 March 1974 |
| Docket Number | 2,No. 48555,Nos. 1,3,48555,s. 1 |
| Parties | Waunell M. STRICKLAND et al. v. Lennis L. MILES |
| Court | Georgia Court of Appeals |
Griffin & Houston, Francis Houston, Blackshear, Findley & Ratcliffe, James E. Findley, Claxton, Bennett, Pedrick & Bennett, E. Kontz Bennett, Sr., Waycross, for appellants.
Leon A. Wilson, II, Waycross, for appellee.
Syllabus Opinion by the Court
This appeal is by the executrix and remaindermen under the will of Earl Miles from a judgment of the Superior Court rendered upon a directed verdict upholding an award of a year's support to the widow for the remainder interest in a fifty-two acre tract on which there existed an uncanceled loan deed subsequently transferred to the widow after the husband's death.
After the husband's death on April 2, 1968, his will was probated in common form in the court of ordinary on August 5, 1968, by Mrs. Waunell Strickland, decedent's sister, as executrix. The terms of the will provided for the widow to receive all monies and personal property in fee simple and an estate for widowhood in all real property with remainder over therein in fee simple at her death or remarriage to testator's named brothers and sisters. The will further provided that during the widow's lifetime or until she remarried, she was entitled to live upon and receive all income from the real property, with specific authorization given her to lease the real property for farm purposes, to lease the timber for turpentine purposes for periods not exceeding five years, and to 'sell timber from said lands in periodical sales (not clean-cut the same)' conditioned that it 'be done in accordance with good forestry practices.' The will also provided that all income from the sale of timber or turpentining the timber would inure to her benefit. Further provision was made empowering the executrix to sell the realty and to borrow money pledging the real property as security as might be necessary to secure funds in the event of serious illness of the widow.
The will did not state expressly that the provisions therein for the widow were in lieu of a twelve months' support.
Among the grounds of the caveat was that the family had consummated an agreement 'for the settlement of the estate of Earl Miles, said agreement being in the nature of a family settlement of all features of the estate,' (R. 21) whereby the widow was estopped from seeking a year's support. The caveat recites that after the death of the husband the family had agreed upon a method of paying the estate debts and getting money for the widow by agreeing to sell timber. The first bids were obtained on 170 acres of land and subsequently on 222.5 acres, four timber dealers making bids. Thereafter, in March, 1969, caveators contend the family settlement agreement was made. 'The substance of the agreement was that $30,000.00 would be borrowed from Allied Timber Company and out of this amount of money all debts due by the estate would be paid by Mrs. Lennie Lucille Miles (widow), the check for $30,000 received from the sale of the timber being turned over to Mrs. Lennie Lucille Miles.' (R. 21). The caveat continues, averring that another sister, Mrs. Bowen subsequently joined in the agreement making it complete as between the executrix, all remaindermen, and the widow, the last named 'assigning the lease to Allied Timber Company to obtain the $30,000.' (R. 21). The caveat further states that all remaindermen waived their rights and interest in the land by signing the necessary legal documents presented by the timber company. (R. 22). Members of the family testified at the trial as to their respective versions concerning the details as to what had transpired and the widow was cross examined as an adverse party concerning these events which had occurred both before and after the probate of the will.
On September 9, 1969, the widow filed her application to the court of ordinary for a year's support. On December 1, 1969, the appraisers filed their award wherein they set apart as a year's support to the widow 'The remainder interest after the life estate of estate during widowhood' in a fifty-two acre tract of land, such remainder interest being valued at $6,077.
In addition to that ground of the caveat contending the family settlement agreement constituted a bar or estoppel, appellants urged an additional bar existed because the terms of the will were such as to be inconsistent with and repugnant to the grant of a year's support even though there was no specific statement therein stating the provision for the widow to be expressly in lieu of a year's support.
At the conclusion of the evidence presented by the caveators, counsel for the widow moved for the direction 'of a verdict in behalf of the applicant for twelve months' support in this case, the appellee, Mrs. Lucille Miles, on the ground that the caveators have utterly failed to sustain their ground of caveat, to the effect that an oral contract was entered into whereby Mrs. Lucille Miles waived her right to a twelve months' support.' (T. 103). This motion was sustained and the court entered a judgment thereon awarding the widow a year's support in the remainder interest in the fifty-two acre tract, the superior court judgment using the identical language of the award as amended by the court of ordinary judgment, including the valuation of $6,077.32. Nowhere in the transcript is there shown any evidence concerning such valuation excepting in the award of the appraisers which had been introduced during the trial. (T. 112, 113). Caveators have taken this appeal from that judgment.
1. We conclude that since the will did not provide that the devise to the widow was in lieu of a year's support, as might have been done under Code § 113-1007, she was put to no election and was not barred from claiming one, either by the 'family agreement' under which certain timber was sold or otherwise. We cannot find the terms of the will to be such as by repugnancy or inconsistency with the idea of a year's support to the widow to preclude her right to one. Burch v. Harrell, 57 Ga.App. 514, 196 S.E. 205, and citations.
2. The appeal from the court of ordinary to the superior court is, upon reaching the superior court, a de novo proceeding, and insofar as is consistent with the rules of practice found in the Civil Practice Act it is governed thereby. It proceeds as do other civil cases. A directed verdict is appropriate in such a proceeding if it meets the tests of Code Ann. § 110-104. However, the jurisdiction of the superior court on the appeal of such a proceeding is no greater than that of the tribunal from which it was appealed.
With these principles in mind we must recognize that it is not the province of the court to review and affirm or reverse the rulings made in the tribunal from which the matter was appealed, but to try the issues anew and pass original judgments on questions involved as if there had been no previous trial. Hall v. First National Bank of Atlanta, 85 Ga.App. 498(3), 69 S.E.2d 679; Strickland v. Strickland, 99 Ga.App. 531, 109 S.E.2d 289.
The issues made are to be found in the caveat to the return of the appraisers setting apart the year's support,...
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