Maxwell v. Citizens Bank

139 S.E. 864, 165 Ga. 125, 1927 Ga. LEXIS 324
CourtSupreme Court of Georgia
DecidedOctober 15, 1927
DocketNo. 5846
StatusPublished
Cited by6 cases

This text of 139 S.E. 864 (Maxwell v. Citizens Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maxwell v. Citizens Bank, 139 S.E. 864, 165 Ga. 125, 1927 Ga. LEXIS 324 (Ga. 1927).

Opinion

Hines, J.

Thomas R. Maxwell died intestate on May 24, 1902. In that year a year’s support out of his estate was set aside to his widow, Sallie Maxwell, and three minor children of the intestate by a former marriage. The appraisers set aside the sum of $1465, which, the report states, the widow elected to take in “three hundred & seventy-five acres of land, more or less, off of lots Nos. 249 & 271 & 248 iii the 19th Dist. of Decatur County, value-1000.00,” and certain personal property. On December 23, 1921, the widow executed to the Citizens Bank her deed to secure debt, conveying the following property: “All that certain tract or parcel of land situated, lying, and being in the 19th district of Grady County, Ga., formerly a part of Decatur County, Georgia, and being all of lot of land No. 249 two hundred forty-nine, containing 250 acres more or less. Also all of the north half of lot of land number 271 two hundred seventy-one. Also ten acres in the northwest corner of lot of land No. 248.” This deed recites that the land thereby conveyed was formerly the property of Thomas R. Maxwell, and had been set aside at his death for a year’s support for Sallie Maxwell. This deed was made to secure the payment of a note, of even date, for the sum of $779:33, due March 1, 1922. The bank reduced its debt to judgment, conveyed by quitclaim deed the land embraced in its security deed to Sallie Maxwell for the purpose of levy and sale, and had the execution issued upon its judgment levied thereon. The administrators of T. R. Maxwell filed their claim. The case was submitted to the trial judge to pass upon all questions of law and fact, without the intervention of a jury. On the trial the bank [127]*127tendered in evidence the application of Sallie Maxwell for a year’s support, including the appointment of appraisers, the return of the appraisers, and the judgment of the court of ordinary making the return of the appraisers the judgment of the court and ordering the same to record. The claimants objected to the admission of this evidence, upon the ground that the year’s support was void, because the description, in the return of the appraisers, of the land which the widow elected to take was too vague and indefinite. The court overruled the objection and admitted said proceedings.

The trial judge admitted oral testimony to the effect that T. E. Maxwell owned only one tract of land, which contained one whole lot, number 249, one half, lot, and a fraction of about ten acres of another lot; that Maxwell was living on this tract at the time of his death; that this tract was set aside to his widow as a year’s support, and was the land levied upon; and that the appraisers set aside the whole of his estate as a year’s support for his widow and minors. To the admission of this testimony the claimants objected, upon the grounds that the description of the land in the year’s support was void for vagueness and indefiniteness, for which reason parol evidence was inadmissible to supply or aid the description; and because said evidence was inadmissible to show that the whole estate had been set aside to the widow and minor children, there being nothing in the return of the appraisers showing or indicating that such was a fact. The court overruled these objections and admitted this evidence.

Claimants introduced evidence to show that the ordinary, who made the return of the appraisers setting aside this year’s support the judgment of the court of ordinary, and the appraisers who set aside the year’s support, were each related to the applicant by consanguinity or affinity within the fourth degree; and they moved for this reason to exclude from evidence the return of the appraisers and the judgment of the court of ordinary, on the ground that such judgment was void because of such relationship. The court overruled this motion. The claimants excepted, and they assigned error on each of the foregoing rulings in the grounds of their motion for new trial.

The first headnote requires no elaboration.

The controlling question in this case is whether or not the [128]*128proceedings setting aside a year’s support should have been rejected by the trial judge, for lack of sufficient description of the land which the applicant elected to take in lieu of the money set aside to her and the minor children of the intestate for a year’s support. The appraisers set aside the sum of $1465 in money as a year’s support. They did not undertake to set aside this support in property; but in their return they stated that the widow elected to take this sum in real and personal property. If the appraisers had undertaken to set aside land alone as a year’s support, their description of this land would have been void for lack of definiteness, under the decisions of this court. In Tippins v. Phillips, 123 Ga. 415 (51 S. E. 410), a description of land in a contract of sale, as follows: “424 acres of land in Tattnall County,” was held by this court to be too vague and indefinite. In McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655), a return of appraisers setting apart a year’s support, which did not purport to embrace the entire estate of the decedent, but designated as one of the items of property set apart, the following: “175 acres of land, more or less, of lot of land No. 49 in the 6th district,” was held by this court, as to such item, too vague and uncertain to be capable of enforcement. In the opinion Mr. Justice Cobb called attention to the fact that “the words of indefiniteness, 'more or less,’ are used.” In Estes v. Winn, 136 Ga. 344 (71 S. E. 470), land was described in a contract of sale as being “in DeKalb County, being part of land lot No. 150 and lot 159, containing 160 acres, more or less.” This court held that such description was too vague and indefinite to locate the land. In Clayton v. Newberry, 138 Ga. 735 (76 S. E. 63), this court ruled that “A description of land in a written contract as 'part of lot No. 200 in the sixth district and second section of said county [the county being elsewhere named], containing fifteen acres, more or less,’ is insufficient.” In Hutchinson v. Woodward, 145 Ga. 325 (89 S. E. 208), where the description of land, in the report of appraisers setting aside a year’s support, was “20 acres of -land valued at $250,” and where it did not appear from the year’s support proceeding that the entire estate of the decedent was intended to be set aside, this court held that such description was too in-, definite to be capable of enforcement, and as to that item the allowance was ineffective. In Blackwell v. Partridge, 156 Ga. [129]*129119 (118 S. E. 739), this court held that “A return of appraisers to set apart a year’s support was not admissible in evidence, the sole description of property set apart being ‘one vacant lot, containing one acre, in the Town of Lincolnton.’ ” In Bush v. Clemons, 161 Ga. 311 (130 S. E. 914), the return-of appraisers showed that they set apart numerous articles of personal property, and “400 acres of land $8000.00;” and this court held that the report as to the land was void.

Where, from the return of the appraisers and the judgment of the ordinary, it appears in general terms that the whole of the property of the decedent is set apart, any competent evidence is admissible to apply the judgment to the subject-matter. Stringfellow v. Stringfellow, 112 Ga. 494 (37 S. E. 767).

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Cite This Page — Counsel Stack

Bluebook (online)
139 S.E. 864, 165 Ga. 125, 1927 Ga. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxwell-v-citizens-bank-ga-1927.