Walraven v. Walraven

• Decision Date: 18 February 1948
• Docket Number: 31789.
• Citation: 47 S.E.2d 148,76 Ga.App. 713
• Parties: WALRAVEN v. WALRAVEN.
• Court: Georgia Court of Appeals

47 S.E.2d 148

76 Ga.App. 713

WALRAVEN v. WALRAVEN.

No. 31789.

Court of Appeals of Georgia, Division No. 2.

February 18, 1948

Judgment Adhered to March 29, 1948.

Syllabus by the Court.

1. Where a party submits to a ruling sustaining a demurrer to his pleading, by filing an amendment to meet the grounds of demurrer, he cannot afterwards insist upon an assignment of error on exceptions pendente lite to the ruling on the demurrer.

2. Where the pleader alleges that a conspiracy between Mrs. Eva Walraven and D. B. Walraven existed and that by reason of it the former was bound by the acts of the latter and sets up preliminary facts by which the pleader claims this relationship was established, the general allegation of conspiracy is a mere conclusion unless the preliminary facts do establish the relationship and the demurrer here raises the question whether the conclusion is good in law. Held That the preliminary or evidentiary facts relied upon do not support the ultimate fact of the conclusion and the demurrer was properly sustained.

3. Even though the will of a decedent provides that his widow shall take under the will only if she renounces her right to dower and year's support, she must do some act which shows her acceptance of that provision in lieu of dower and year's support; the fact that the widow remained on the property of the decedent is not sufficient in itself to show an election on the part of the widow to take under the will rather than to take a year's support.

4. The instructions of the court to the jury relative to the burden of proof and the presumption in favor of the return of the appraisers presented to the jury the issues they were called upon to determine, notwithstanding a verbal inaccuracy which resulted from a 'slip of the tongue.'

5. A party may show anything which may, in the slightest degree, affect the credit of an opposing witness.

6. Special circumstances occurring and existing during the first year after the death of the head of the family, and illustrating the amount necessary for the support of the widow, should be considered by the jury, but the proper allowance to be made to her must finally be determined according to the circumstances and standing of the family previous to the death of the husband, due regard being had to the solvency of the estate.

Mrs. Eva Walraven applied to the court of ordinary for a year's support out of the estate of her deceased husband. The appraisers made their return for $2500, which the applicant elected to take in real estate and certain household and kitchen furniture. To the return of the appraisers C. R. Walraven and Mrs. Jewel Lynch, children of the deceased by his first marriage, and Mrs. Sarah Stroud, a child of the deceased and the applicant, filed a caveat. The case was appealed by consent to the superior court.

To the caveat as amended the applicant filed her demurrers. The demurrers were sustained and paragraphs three, four, and five of the caveat as amended were stricken. The caveators excepted pendente lite. The caveators then filed another amendment to their caveat.

The case proceeded to trial, and the jury returned a verdict in favor of the return of the appraisers. The caveators filed a motion for new trial based on the general and nine special grounds. This motion was overruled, and the caveators excepted.

J. H. Paschall, R. F. Chance and Harbin M. King, all of Calhoun, for plaintiffs in error.

Henry L. Barnett, of Calhoun, for defendant in error.

MacINTYRE Presiding Judge.

1. The applicant filed demurrers to the caveat as amended. The trial judge sustained the demurrers and struck paragraphs three, four, and five of the caveat. The caveators excepted pendente lite. Later the caveators amended their caveat to meet the order sustaining the demurrers to paragraphs three and four. The caveators now assign as error the ruling of the trial judge on the demurrers.

'Where a party submits to a ruling sustaining a demurrer to his pleading, by filing an amendment to meet the grounds of demurrer, he cannot afterwards insist upon an assignment of error on exceptions pendente lite to the ruling on the demurrer. * * * The plaintiffs in error, having filed an amendment to their answer in order to meet the order sustaining a demurrer to certain paragraphs, cannot now complain that the order was erroneous.' Stainback v. Dunn, 53 Ga.App. 464(3), 186 S.E. 220, 221. See Rivers v. Key, 189 Ga. 832(1), 7 S.E.2d 732; Norton v. Brown, 173 Ga. 146(3), 159 S.E. 702; Fuller v. Fuller, 41 Ga.App. 24, 152 S.E. 122.

Under the above authorities the caveators, plaintiffs in error, cannot now complain that the order in the instant case was erroneous as it relates to paragraphs three and four.

Relative to paragraph five of the caveat, the allegations were as follows: '5th. That the said application for year's support is proceeding illegally in that no administrator or executor has been appointed or qualified but on the contrary the same is proceeding according to a scheme or plan between the said Mrs. Eva Walraven and D. B. Walraven which amounts to and is collusion between them to the disadvantage and hurt of the other children and heirs at law of the said W. R. Walraven, deceased.' This paragraph was thereafter amended on August 28, 1946, by adding thereto the following: 'That the said Mrs. Eva Walraven and D. B. Walraven are colluding and conspiring to defeat the rights of the other heirs at law of W. R. Walraven, deceased, in that the said Mrs. Walraven is not the real applicant for year's support in said case but is being used by the said D. B. Walraven, as such only to have said farm and life's earnings of the said W. R. Walraven, deceased, set apart to her so that he may obtain control of the same through her and in order to sell and dispose of same and use the money for himself; that the said D. B. Walraven has boasted that he was going to get the property himself one way or another; that the said D. B. Walraven and Mrs. Eva Walraven have collected money due the estate and have not accounted for same and refuse to inform other heirs how the money was spent or give them any information as to the condition of the estate in order to keep caveators ignorant of the true condition of the estate.'

The demurrer raises the question of whether the caveator's conclusion of the existence of such a conspiracy between Mrs. Eva Walraven and D. B. Walraven in paragraph five as amended is good in law.

Whatever the first preliminary allegation of fact, as follows: '* * * that the said Mrs. Walraven is not the real applicant for year's support in said case but is being used by the said D. B. Walraven as such only to have said farm and life's earnings of the said W. R. Walraven, deceased, set apart to her so that he may obtain control of the same through her and in order to sell and dispose of the same and use the money for himself; * * *', may show with reference to the intention of D. B. Walraven, it does not show that Mrs. Walraven had any like intention or that she was conspiring to defraud.

The second preliminary fact alleged--that D. B. Walraven had boasted, not in the presence of Mrs. Mary Eva Walraven, that he was going to get the property for himself one way or another--would not be binding on Mrs. Walraven until the alleged conspiracy was prima facie shown.

The third preliminary fact alleged is that the said D. B. Walraven and Mrs. Eva Walraven have collected money due the estate and have not accounted for same and refuse to inform other heirs how the money was spent or give them any information as to the condition of the estate in order to keep caveators ignorant of the true condition of the estate.

This third preliminary fact, as alleged, would not singly or in connection with either or both of the above mentioned preliminary facts make out a prima facie case that Mrs. Walraven engaged in a conspiracy to defraud the estate or, as contended by the caveators in their brief, that she was conspiring and colluding to do something that was unlawful, oppressive or immoral or to do something not unlawful, oppressive or immoral by unlawful, oppressive or immoral means.

Paragraph five of the caveat as first amended on August 28, 1946, which is now under consideration, did not merely undertake to ask that what the widow consumed be applied on the award of her year's support, but undertook to establish a conspiracy that demaged the other heirs. 'What is the object of the law setting apart a year's support for the widow and minor children of the deceased? The law explains itself. It is to prevent a family being turned away houseless--a widow and children--and cast upon the world in their forlorn condition. Hence, it provides, that whether the deceased departed this life testate or intestate, solvent or insolvent, still the family should have a year's support, under all circumstances.' Blassingame v. Rose, 34 Ga. 418, 421. 'Where an executor advances a support to the family of the deceased, although not specifically set apart by appraisers, he is entitled to be credited with it in accounting with the creditors and heirs, the burden being on him to show that it was a proper and necessary amount.' Simmons v. Byrd, 49 Ga. 285(2). Whenever the widow applies for an assignment of the year's support, '* * * she must be held chargeable with the value of what she had previously consumed. * * *' of her deceased husband's estate. Wells v. Wilder, 36 Ga. 194, 198. And thus it seems to us that the preliminary or evidentiary facts alleged, when construed most strongly against the pleader, would only authorize a conclusion that the widow was chargeable with the value of anything which she may have previously consumed of her deceased husband's estate; or that she had...