Horn v. Truett , 114 Ga. 995 ( 1902 )

Lewis, J.

T. G. Horn died in 1864, leaving a widow, Elizabeth Horn (his second wife) and two sets of minor children. Application was made for a year’s support for the widow and minor children; appraisers were appointed, and they appraised the estate .at less than $500 in value, and set it all aside as a year’s support. The evidence, which, as will be seen, was mainly by parol, is conflicting as to whether the estate was set apart in kind or in money. There was evidence that it was set apart in money, and that Elizabeth Horn bought the property which was sold to raise the money, the administrator making her a deed and taking her receipt for the amount due her as a year’s support. At all events, Elizabeth Horn lived upon the land until 1899, when she died. Her administrator advertised the land for sale for purposes of distribution, and the children of T. G. Horn by his first wife interposed a claim to a five-eighths interest in the property, basing their claim exclusively upon the year’s support set apart out of their father’s estate in 1867. The claim was tried before a jury, who returned a verdict in favor of the administrator; and the claimants’ motion for a new trial having been overruled, they excepted.

On the trial of the case in the court below the claimants assumed the burden of proof. In order for them to recover it was necessary to show that the year’s support under which they asserted title was duly set apart, and to establish a full compliance with all the requirements of law relating thereto. The record fails to disclose that this was done. It appears from the evidence that appraisers were appointed to set' apart a year’s support out of the estate of T. G. Horn for the benefit of his widow and minor children, and that these appraisers appraised the estate at less than $500 in value and set apart the entire estate as a year’s support. There is also oral evidence, admitted without objection, going to show that the return of the appraisers was filed in the office of the ordinary, but whether within the time required by law does not appear. Further than this there was no evidence relating to the year’s support. It does not appear that the return of the appraisers was ever recorded, as required by the then-existing law, upon which section 3467 of the present Civil Code is founded. On the contrary, the evidence points strongly to the conclusion that the return was never recorded. But admitting, for the sake of the argument, that owing to the lapse of time a presumption arises that due record of the proceedings was made, it is undisputed that at the time of the setting apart of the year’s support under which the plaintiffs in error claim title to the land in dispute, there were living two sets of minor children of T. G. Horn, and no attempt was made by the claimants below to show what proportion of the property covered by the year’s support was set aside to each set of children. The Civil Code, §3470, declares that if there are two sets of minor children, by different wives, the appraisers shall specify the portion going to the children of the deceased wife, which portion shall vest in them. It is plain that a compliance with this mandatory statute is necessary to give the plaintiffs in error the right which they endeavor to assert in this case. In the absence of proof so essential to the validity of the year’s support under which they claim title, there was a failure on the part of the claimants to carry the burden which they assumed; and it follows that there was no error in refusing to grant a new trial on the grounds that the verdict was contrary to law and the evidence. The portion of the motion for a new trial which complains of alleged errors of law is without merit. The requests to charge, so far as legal and pertinent, were covered by the general charge, and there was no error in the charges of which complaint was made. As there appears to have been no error of law upon the trial in the court below, and as the verdict was fully sustained by the evidence, the judgment of the trial court will not be disturbed.

Judgment affirmed.

All the Justices concurring, except