Blackwell v. Broughton , 56 Ga. 390 ( 1876 )

Jackson, Judge.

1. This was an application for a homestead which came up on appeal from the ordinary to the superior court of the county of Jasper. The applicant alleged that he was the head of a family, that the family consisted of “his adult daughter, Nannie A. Bowdin and her three minor children, who are in indigent circumstances ,and dependent upon him for a support; are members of bis family and living in his household; have no property and are unable to support themselves by reason of physical inability.” The application containing this allegation was dismissed on general demurrer, the applicant excepted, and the naked question is this: Is a father who has his adult daughter and her three children, all totally dependent upon him for a support, living with him in his house, the head of such a family as, in the sense of the constitution of 1868, entitles .him to a homestead ? It will be observed that it is not alleged that the daughter is a widow, but she bears a different name from the father, has no property,' is entirely dependent on him for support, and the inference is very strong that she is a widow. If she is not, and this were the ground of demurrer, it should have been demurred to specially, and if consistently with the truth it could have been done, the defect was curable by amendment. We assume then, that she is a widow, and consider this the question: Is a father, who has living in his house with him a widowed daughter and her infant children, entitled to a homestead?

2. It was unanimously ruled by this court in Marsh vs. Lazenby, 41 Georgia Reports, 153, tlmt the unmarried head of a family, consisting of his mother and sisters, was entitled to a homestead. We think that case, in principle, covers this. It would be difficult to show to any rational mind and sound judgment, that a man is under greater obligation-to support in his house, his mother than his daughter, and whilst the tie between brother and sister is close, that between parent and grand-children is still closer. It is true, that Marsh vs. Lazenby is put mainly upon the obligation to support the mother, yet the head-note and the facts show that the sisters were also included in the family of which the brother was the head; nor does it appear in that case that the mother or sisters were unable to maintain themselves. In the case at bar, it does appear that they are indigent, incapable of work from physical inability, and wholly dependent upon the head of the family. In so far as a daughter is as near to one’s heart as his mother, and grand-children nearer than sisters, and those destitute of property and unable to work, more appropriately within the beneficent principle on which the constitution provides a hoifiestead, this case is-stronger than Marsh vs. Lazenby. If the family in 'whose behalf a homestead can be set apart must consist of those whom the head is under the strictly legal obligation to support, the father is as much bound to maintain in his house his daughter, as hré mother; the former is more naturally a member of his household where she was born, than the latter, who raised him under a different roof-tree, that of his father, and only on the death of her husband, lived with the son. The whole court is of opinion that the case cited covers this, and our judgment is unanimous.

3. Of course the applicant must be the bona fide head of this family; that is to say, it must appear to the satisfaction of the jury, on the trial, that the daughter and her children were legitimately members of the family, had been so long enough and under circumstances to show that they were not brought into the household of the applicant on purpose to avoid the payment of debts, but in good faith and honestly were members of the family.

For myself, independently of the case in 41st Georgia Reports, I think daughters of any age living with the father bona fide in his house, or little grand-children living there, and dependent upon the grand-father, whether the mother be living or dead, would constitute a family in the sense and spirit, in the true intent and meaning of the constitution of 1868; and such a head of such, a family, bona fide constituted, and not gathered for the moment to defraud creditors as a mere trick or sham, would be entitled to his homestead. In the meaning of the constitution, it might well, I think, be held that children included grand-children, and if they lived with the grand-father and were dependent upon him, they would be as much his family as his own children. Nor do I think that the framers of the constitution meant to break up a man’s family just as soon as his wife died and his children became of age. If they had all left him, their voluntary departnre would have broken it up; if they remained with him, especially daughters dependent upon him as much when twenty-one as when twenty, they would still be, in the sense of the constitution, a legitimate and component part of his family, and he would be entitled in law to a home for himself as their head, and for them as his household.

Let the judgment be reversed.