King v. King , 203 Ga. 811 ( 1948 )

1. Where realty is set aside as a year's support to a widow and three minor children, and all the minors have since attained their majority, the title is vested in them jointly, subject to the right of the widow to sell (since the act of 1937, p. 861, Code, Ann. Supp., § 113-1025, upon approval of the ordinary) the entire interest for her maintenance and support.

2. A consent decree of a court of another State, which, in part, seeks to transfer title to realty in this State that had previously been set aside to a widow and minor children as a year's support, shows upon its face that, in so far as transferring title to realty, the court was without jurisdiction of the subject-matter; and accordingly that part of the decree is not such a judgment as comes within the full faith and credit clause of the Constitution.

3. The written contract, set forth as an objection to the sale of realty set aside as a year's support, is not sufficient to preclude the right of the widow to sell the realty in question. 4. Other grounds of objection to the sale are without merit.

No. 16225. JUNE 18, 1948. This case originated in the court of ordinary upon an application for an order to sell certain real estate, which had been set aside as a year's support, and was appealed to the superior court.

In 1922 M. C. King Sr. died intestate, leaving his widow, Mrs. E. A. King, and six children. In 1923 all the assets of the estate, consisting of several tracts of land, corporate stocks in various corporations, cash, and household furniture, were set aside to the widow and three minor children as a year's support.

In 1947 the widow, Mrs. E. A. King, filed a petition with the court of ordinary for an order permitting her to sell a tract of land in Fannin County, which was the home place, and part of the land set apart as a year's support, for the purpose of paying a debt originally created for the support of herself and three minor children, and for the present support and maintenance of herself. She set forth that all of the children had attained their majority, though two of them, Victor G. King and Don C. King, had, since reaching their majority, become insane and had been committed to the State Sanitarium at Milledgeville. The petition contained a prayer for service on each of the six children.

Two of the children, Mrs. Mollie Queen and Mrs. Helen Ballew, filed objections to the sale. Objections were also filed by W. Whitfield, as guardian ad litem for the two insane children. To these objections demurrers both general and special were interposed by Mrs. King. The demurrers were sustained in the court of ordinary, but on appeal to the superior court, the general demurrers and certain special demurrers to the objections were overruled. Exceptions pendente lite were taken. Upon the trial, after the introduction of evidence, the trial judge directed a verdict in favor of the objectors.

The objections filed to the application for sale were in substance as follows: After the death of M. C. King in 1922, it was orally agreed between the wife and children who had attained their majority, to allow the entire estate to be set aside as a year's support to the widow in trust for herself and children, simply as an easy means of handling and controlling the estate for the best interest of all the heirs; and both prior and subsequently to the year's support proceedings in 1923 it was agreed that the widow and children would divide and distribute the property set apart as a year's support among those entitled thereto as heirs. Since that time, pursuant to said agreement, the rights of the children have been so recognized by the widow. The estate was of the value of $100,000, consisting of $50,000 in real estate. Independently of any oral agreement, the widow and children knew that the interest of the children was not, by the year's support proceedings, being made to the widow as a gift, nor had they acquiesced in such a construction as a settlement of their claim. Following the setting aside of the year's support, and up until certain litigation in reference to the estate in the Chancery Court of Hamilton County, Tennessee, in which a decree was taken in 1927 (which is subsequently set forth more in detail in this statement of facts), the widow and children freely admitted amongst themselves and to others, that the widow was holding the title to said estate for the use, interest, and equitable claims of all the heirs, and they all occupied and used the estate equally. Also, aside from any oral agreement alleged, the same is referred to and relied upon insofar as it was subsequently ratified by an agreement in writing executed in July, 1929, and recorded on the deed records in the office of the Clerk of the Superior Court of Fannin County, Georgia, wherein certain portions of the estate were distributed to the widow and to the children (as is subsequently set forth more in detail in this statement of facts). Following said decree in the Chancery Court of Hamilton County, Tennessee, and the written agreement recorded in the Clerk's Office of Fannin Superior Court, the widow and the children received and went into possession of their respective distributive shares as specified in the written agreement; and as to the remainder of said estate not distributed, the same was held by the widow under the stipulations and agreements referred to in said court decree and the recorded written agreement. It is then asserted that it would be a fraud upon the children to allow the widow, whom they used as their agent and placed confidence in, to refuse to carry out the arrangement, and to repudiate the facts alleged, since they have stood by and abided by the same.

The decree in the Chancery Court of Hamilton County, Tennessee, which is made a part of the objections to the sale, is voluminous and deals with much that is not germane to the issue here. The pleadings from which the decree emanated are not attached, but from the decree it appears that it was the result of a suit of Toccoa Electric Power Company v. M. C. King etal., which was consolidated with a suit of Mrs. E. A. King etal. v. Hamilton National Bank et al. This M. C. King was a junior, and one of the children of the widow here involved, and is referred to hereafter as M. C. King Jr. This decree deals with the distribution of funds derived from the sale of certain specified corporate stocks, and provides that the sum to be paid M. C. King Jr. is in full settlement of his interest in the estate of M. C. King Sr. A small part of the funds derived from this sale was directed to be paid to the widow and children in equal parts. The part of the decree relied upon by the objectors as nullifying the award of a year's support is as follows: "The court finds that M. C. King Sr., a resident of Fannin County, Georgia, died intestate on or about April 4, 1922, leaving a widow, . . and six children (naming them and stating their ages, two of whom were minors at that time) as his only heirs at law; that after the death of the said deceased, the widow, Mrs. E. A. King, and his son, M. C. King, were duly appointed and qualified as administrators of the estate in Fannin County, Georgia, and the said M. C. King was duly appointed and qualified as administrator of the estate in Polk County, Tennessee; that in connection with the administration of the estate in Fannin County, Georgia, all the assets of said estate by order of the court of ordinary of said county were set aside to the widow, Mrs. E. A. King, and Victor G. King, who was then a minor, Don C. King and James B. King, minors, for a year's support; that all said assets were so set aside for the purpose of consummating a partition agreement theretofore entered into by the parties as permitted by and in accordance with the laws of Georgia; that thereafter, in January, 1925, the administrators were duly discharged by the Court of Ordinary of Fannin County, Georgia, and during the year 1925 the administrator in Polk County, Tennessee, was discharged by order of the county court of said county; and that pursuant to the agreement whereby said year's support was set aside, and also in accordance with agreements of all adult parties filed in this cause and heretofore confirmed as being to the manifest interest of the minors the widow and said children are entitled each to a one-seventh undivided interest in the entire estate." The decree further states: "Pursuant to the settlement agreement already confirmed herein, each of said parties had a one-seventh undivided interest in all the property of said estate, and it is hereby adjudged and decreed that the title is so vested." The decree makes no specific reference to real estate.

The written agreement of 1929, heretofore referred to, was executed by all parties except M. C. King Jr. At that time James C. King was a minor and, as to him, it was signed by R. F. Ballew as guardian. The agreement provided: "M. C. King died intestate in ____ 1922, leaving the foregoing as the lawful heirs, of his estate, with the exception of M. C. King Jr., who has already received his portion of said estate. Due to the fact that deceased left property, both real and personal, represented by real estate, stocks, etc., and it appearing that the major portion of the heirs at law are desirous of obtaining their part of the estate, and as the real estate, stocks, etc., cannot be actually determined as [to?] the exact value thereof, the foregoing heirs at law of the said M. C. King, not wishing to file a bill in partition, and to avoid any litigation, agrees mutually to accept the portions as will be hereinafter set out as their share of the estate. This being in full settlement of any share that they may have in the various items set out, and any items such as realty or personalty not specified herein will remain in the estate to be later divided as may appear for the mutual benefit of said heirs. . . [Specific property, including realty, corporate stocks or both, is then set forth as to each.] All parties signing to this instrument acknowledge that it will be more beneficial to the estate to have this division made, so as to avoid any litigation, and will also be more beneficial to each individual interested. It is expressly understood and agreed by the signors hereto that any property not included in the above division is to be divided equally between the said heirs, after all just debts of the estate have been paid. To have and to hold the said bargained premises, to the several signers hereto and their assigns forever, and each agrees that they will co-operate in any way possible to have the various stocks transferred, and will sign any deeds that are necessary in the culmination of this agreement, each further agrees that they will have a stock meeting called by the several corporations for the purpose of having the stocks as stipulated transferred. The said division to be effective from the date and issuance and deliveries of the said stock." It is alleged by the objectors that James B. King, the youngest child, received his part of the estate.

Mrs. E. A. King's motion for a new trial as amended was overruled, and the case comes to this court for review upon her exceptions to that judgment. In her bill of exceptions, Mrs. King, the applicant for leave to sell land set apart as a year's support, also assigned error on her exceptions pendente lite. 1. The tract of land here involved having been set aside to the widow and three minor children as a year's support, and the widow seeking an order to sell for the purpose of maintenance and support, the first question for determination is the nature of the title thereto and the widow's right and conditions necessary to a sale thereof.

When this year's support was set aside to the widow and three minor children jointly, under the Code, § 113-1002, the title thereto vested in them for their joint support and maintenance, and the other children had no interest therein. Code, § 113-1006;Stringfellow v. Stringfellow, 112 Ga. 494 (3) (37 S.E. 767). When the minor children married or attained their majority, the right of a support and maintenance from the property set aside as a year's support belonged to the widow alone as long as the property lasted or as long as she lived, and she was entitled to its use and control. Miller v. Miller, 105 Ga. 305 (3) (31 S.E. 186). She could sell the property for her maintenance and support. Whitt v. Ketchum, 84 Ga. 128 (10 S.E. 503). The children who have attained their majority have no right to participate in its consumption or its control. Moore v. Pittman,185 Ga. 619, 621 (1c) (196 S.E. 50). "The widow, as the head of the family (Code, §§ 49-102, 74-106; Fletcher v. Booth,143 Ga. 644, 85 S.E. 836), is vested with the exclusive right to manage and control the property for the joint benefit of herself and minor children, and, after the marriage or majority of the children, for the benefit of herself alone for life, including the power to sell (since the act of 1937, p. 861, upon approval of the ordinary) the entire interest in the property for such purpose." Walden v. Walden, 191 Ga. 182, 184 (2) (12 S.E.2d 345); Planters Cotton Oil Co. v. McCurley,199 Ga. 104 (2) (33 S.E.2d 270).

In the instant case, the minors, for whom, along with the widow, the year's support was set aside, have attained their majority, and no question is here determined as to their right to any portion of the year's support which may be left at the death of the widow.

2. It is insisted, however, by the objectors that, even though the judgment of the court of ordinary set aside the entire estate to the widow and three minor children, the title thereto was subsequently changed in 1927 by the decree of the Tennessee court. In support of this contention the objectors rely upon the full faith and credit provision of the United States Constitution (Code, § 1-401) and the law of this State as codified in the Code, § 38-627, each of which provides that the judicial proceedings of other States shall be given full faith and credit in this State.

Insofar as the Tennessee decree sought to adjudicate the title to lands in Fannin County, Georgia, it showed upon its face it was not within the jurisdiction of that court. Article 6, section 14, paragraph 2 of the Constitution of 1945 (Code, Ann. Supp. § 2-4902) provides: "Cases respecting titles to land shall be tried in the county where the land lies." Law governing the title and disposition of land is exclusively subject to the laws of the State where it is situated. Chidsey v. Brooks, 130 Ga. 218 (2) 220 (60 S.E. 529, 14 Ann. Cas. 975), and citations. Such a rule is essential to the sovereignty of the State over the land within its borders. Where a court has no jurisdiction of the subject matter of a suit, the parties can not waive it. Epps v.Buckmaster, 104 Ga. 698 (2) (30 S.E. 959); Smith v.Ferrario, 105 Ga. 51, 55 (31 S.E. 38); Cutts v.Scandrett, 108 Ga. 620 (3) (34 S.E. 186). Accordingly, in the instant case, the decree of the Tennessee court could not have the effect of transferring the title to the realty here involved, as it was without jurisdiction so to do.

It may seem that — the decree of the Tennessee court having been granted under the law as it existed prior to the act of 1937, p. 861 (Code, Ann. Supp., § 113-1025), and the decree having been by agreement wherein the widow, one of the minors who had attained his majority, and the other two minors, consented thereto — such decree would be construed as having the effect of a deed, or voluntary conveyance. But to place such a construction on the proceedings would be tantamount to conferring jurisdiction on a court by consent of the parties where the court had no jurisdiction of the subject-matter.

Neither could this decree be given any effect as a muniment of title, on the theory that our law recognizes the conveyance of title to land by wills probated in other States. While the Code, § 113-709, provides for the transfer of realty by wills probated in other States by complying with certain specified provisions, yet this is permitted by express authority of the law-making power of the State, and is confined to judgments probating wills.

3. The written agreement of 1929, set up by the objectors in opposition to the widow's right to sell the described realty which was part of the year's support, does not attempt to transfer or assign this particular tract of realty. Nowhere in the contract is there a description of land that could be applied to the tract here involved. Furthermore, the contract provides that "Any item, such as realty or personalty not specified herein, will remain in the estate, to be later divided, as may appear for the mutual benefit of said heirs;" and also states that "Any property not included in the above division is to be divided equally between the said heirs after all just debts of the estate have been paid." Therefore, it is apparent that the title to this particular realty was not attempted to be transferred to anyone by the terms of this contract, and the contract presents no meritorious objection to the right of the widow to sell this realty.

4. Neither do the objections to the application for an order to sell set forth any other valid grounds. While it is alleged that the year's support was set aside under an oral agreement that it would be subsequently divided between the widow and all the children, and that the widow thereby held the property in trust, such an agreement could not be given effect, as to do so would be engrafting an express trust by parol upon a judgment of the court of ordinary. This could not be done upon a deed (Jones v.Jones, 196 Ga. 492, 26 S.E.2d 602, and citations), and certainly could not be done upon a judgment of a court of record. Neither are there sufficient allegations of fraud in procuring the judgment setting aside the year's support to constitute valid objections to the sale. Nor do the objections negative the widow's right to sell by reason of a prescriptive title in the objectors based upon adverse possession, as the allegations by the objectors show that the widow and children were cotenants. Code, § 85-1005.

Accordingly, the trial court erred in overruling a general demurrer to the objections filed; and further proceedings were nugatory.

Judgment reversed. All the Justices concur, except Bell andWyatt, JJ., absent on account of illness.