Hart v. Hart , 81 Ga. 785 ( 1888 )

Simmons, Justice.

Mrs. Eliza Ilart sued William and Absalom Hart in Glascock superior court, alleging in her declaration that they were indebted to her $1,000.00 and interest. She states therein that she is the widow of Samuel Hart, who died in 1879. By the second item of his will, he made the following bequests :

“I give and bequeath unto my beloved wife, Diza, the sum of $600.00, to be paid to her immediately after my demise by my executors to be hereinafter mentioned. I also give and bequeath unto my said wife, Diza, the use and control of the two east rooms of my house in which I now live, together with the three beds, tables and other furniture belonging or usually staying in said rooms, during her natural life; also the privilege of the yard and garden. Also I give and bequeath to her my buggy and mare, and should the mare die, her place to be supplied by my executors. It is my will, and I further direct, that my two sons, William and Absalom Hart, in and for consideration of what I have done for them, do give my said wife, Diza, a decent support during her natural life, to keep the buggy devised above in repair, and supply a horse or mare for her to drive should the one devised above fail, and allow her to remain in mv house as above devised, in peace and quiet. Should they fail or refuse to do so, I direct that the ordinary of said county, upon sufficient evidence of the fact, issue execution against my said two sons, and sell enough of their property to give her the necessary support.”

She alleges that said will was duly probated, and tbat the defendants qualified as executors and entered upon their duties; that she remained some time in the house, as directed by the will, until her situation became so unpleasant on account of the treatment she received, that she was forced to remove; that the defendants failed to furnish her a decent support, and refused to provide her medical attention during her sickness, and allowed the horse and buggy to be sold for a medical bill, and had failed to provide her with another horse and buggy; and that on account of their unkind treatment to her, she was forced to leave the house in April, 1881, and go to live with her two daughters. She alleged that her support, from the time of her leaving the defendants, up to the time she brought her suit, amounted to $1,000, which defendants were bound under the will to pay her. The defendants filed two pleas. They pleaded (1) the general issue, and (2) that the second item of the will, as to providing her with support, etc., was inoperative, because tbe same was a charge placed upon them in consideration of certain lands devised to them by tbe testator, which lands, after tbe execution of tbe will, were conveyed to them by tbe testator by deed, and therefore did not pass under tbe will; that if they were liable for such support, etc., they were so only so long as the plaintiff remained in tbe bouse and continued to occupy tbe two east rooms, but that sbe voluntarily and without sufficient cause left said house about a year after testator died, and has not since returned, whereby sbe forfeited ber claim upon them so long as sbe continues to remain away.

On tbe trial of tbe case, tbe jury returned a verdict for tbe plaintiff. Tbe defendants made a motion for a new trial, upon various grounds set out therein, which was overruled by tbe court, and they excepted.

' 1. One of the grounds of tbe motion is, that tbe verdict was contrary to law and to tbe evidence. There was no error in overruling tbe motion on this ground. Tbe theory of tbe defendants was, that if tbe widow bad left tbe bouse provided for ber in tbe will without sufficient cause, sbe was not entitled to recover anything; and they alleged that they bad supported ber as long as sbe remained with them, and they were still willing to do so if sbe should return. Tbe theory of tbe plaintiff was that, under tbe will, tbe defendants were to allow ber to live there “ in peace and quiet.” Tbe evidence was conflicting upon these issues between the parties, she testifying that she had sufficient cause to leave on account of their conduct towards her, and they testifying to the contrary. The witnesses for both sides were before the jury. It was the province of the jury to judge of their credibility. They could see their manner and tone, and could judge of their bias and prejudice; and as they saw proper to believe the witnesses for the plaintiff, we will not interfere with their finding.

2. The next complaint is, that the court refused to give the following charge, as requested : “If plaintiff was kindly treated at the house of defendants and left there to visit her daughter of her own accord and without fault on the part of the defendants, and if defendants were at all times ready and willing to maintain her ■at their house and offered to do so, then plaintiff is not entitled to recover for board.” The complaint is, that the trial judge struck out the word “board,” and inserted in lieu thereof the words “lodging and use of house and furniture offered her by defendants,” and then gave the request as altered.

There was no error in the alteration of this request to charge. The theory of the defendants throughput the trial, as disclosed by the record, seems to have been that this widow, their step-mother, was compelled, under the will, to live in the two rooms of the house described in thy will, and that if she left there she forfeited her rights under the will. ■ "We do not think that this was a proper construction of this item of the will. Under the will, she was entitled to the use and occupation of two rooms of that house. We do not think it compelled her to live there. If she did not choose'to remain in these rooms pointed out in the will, we think she was entitled to go elsewhere, and that she did not thereby forfeit her interest under the will. The will charges these sons and executors with “a decent support” for her, regardless of where she may reside. She was not compelled by the terms of the will to reside with the family of either of these executors, nor to eat at their table. Under this item of the will, she could set up an independent establishment, and ohe would be entitled to a “decent support” in accordance with her position in society at the time of the death of the testator, her husband, or at least she would have been entitled to money enough to have rented two rooms in some other locality, and money enough to purchase suitable clothing and provisions for one in her station in life.

"We think also that, under this item of the will, she was entitled to have her medical bills paid, and bills for care and attention to her during her sickness ; and she was entitled to those things, in our opinion, whether she resided in rooms set apart for her in the will or not; and under this item of the will, she was entitled to a horse and buggy, and if the horse which the testator left her in the will had died, or had been sold under execution against her for her medical bills, she was entitled to another. Of course, if she was entitled to a horse, she was entitled to provender for the horse. This will dispose also of the complaint made in the 5th ground of the motion, and its subdivision.

8. Nor was there any error in refusing to give the charge as complained of in the 4th ground, of the motion. This request was based upon the theory that the obligation to support the widow was placed by the will upon the defendants in consideration of the lands devised to them by the testator, and the testator having sold the land so devised in his lifetime, the same did not pass to the defendants under the will, and they were relieved, therefore, from the burden placed upon them by the will. There is nothing in the will, nor in the evidence, to authorize this construction. The will does not place the obligation to support this widow upon the devise to them of the lands; it expressly states that this obligation was imposed in consideration ot what the testator had done for them. While it is true that subsequent to the making of the will the testator sold the land to them, he did not thereby revoke this bequest to his wife. As the evidence shows that they accepted this trust and received other bequests under the will besides the land, they will not be allowed to say that they are not liable to carry out that part of the will which gives a support to the widow.

4. The sixth ground complains of the exclusion by the court of a certain contract made between the testator and his two sons after the execution of the will, in which contract it is set out that they had bought the land devised to them in the will, and were to pay a certain price therefor, and that they obligated themselves to allow the testator and his wife to occupy the two rooms mentioned in the will as long as they should live, and to furnish them with board and reasonable clothing, and pay their doctors’ bills. There was no error in excluding this contract from the consideration of the jury. As we have before remarked, the selling of this laird by the testator to his sons, and the contract signed by them, did not revoke this bequest to the wifej and if the contract had been in evidence, she would still have been entitled to her rights under the will. She could, if she had thought proper, have brought her suit upon this contract. She had rights both under the will and this contract; but she elected to claim her rights under the will. This contract, if it had been introduced in evidence, would not have benefited either party.

Judgment affirmed.