Lawrence v. Walters

106 S.E. 721, 151 Ga. 319, 1921 Ga. LEXIS 230

• Court: Supreme Court of Georgia
• Decided: March 16, 1921
• Docket: No. 2110
• Status: Published

Opinion

Hill, J.

J. E. Lawrence died in March, 1916, leaving a wife and five children, Mrs. Estoiia Walters and four others. During his life Lawrence executed a deed conveying the entire property in controversy to his wife, Mrs. Mary Lawrence. The children of J. E. Lawrence brought suit against the widow for the recovery by each of a one-sixth undivided interest in the property; and they sought to have the deed declared void on the ground that the grantor was insane at the time of the execution thereof. A special demurrer to one paragraph of the petition was filed by the defendant, and was overruled after the petition was amended so as to meet the special demurrer. On the conclusion of the plaintiffs ’ evidence the defendant moved for a nonsuit, which was refused, and the defendant excepted. The defendant then offered evidence; and the jury returned a verdict for the plaintiffs. A motion for new trial was overruled, and the defendant excepted.

1. The special demurrer was met by the amendment to the petition.

2. The motion to nonsuit the ease was properly overruled.

3. The second and only remaining special ground of the motion for new trial complains that the court erred in charging the jury that if they should find for the plaintiffs the latter would be entitled to recover five sixths of the property in controversy; and this charge is criticised, first, on the ground that the evidence showed that there were more than five shares in the estate under consideration; and second, that, under the statute which provides that where there are more than five shares the widow shall be entitled, upon election, to a one-fifth interest in the estate, the defendant in this case was entitled to the one-fifth, and that consequently the other heirs, the plaintiffs in this case, could not be entitled to one-sixth each in the estate (meaning that they would be entitled to a one-fifth of the four-fifths remaining after the widow took her share). The first criticism is without merit, because the charge complained of distinctly recognizes that there are more than five shares, as contended by the defendant; and the second exception to the charge cannot avail the plaintiff in error here, because it does not appear from the record that the widow had made an election to take the one-fifth interest in the estate which might have been allowed her under an election, but based her entire defense upon the contention that she was vested with the entire estate under the deed which the jury found to be void. Hanvy v. Moore, 140 Ga. 691 (2), 692 (79 S. E. 772); Snipes v. Parker, 98 Ga. 522 (25 S. E. 580); Farmers Banking Co. v, Key, 112 Ga. 301 (37 S. E. 447); Jossey v. Brown, 119 Ga. 758 (11), 764 (47 S. E. 350).

4. The verdict was supported by evidence.

Judgment affirmed.

All the Justices concur, except George, J., Absent.