Opinion
37109.
DECIDED APRIL 24, 1958. REHEARING DENIED MAY 16, 1958.
Caveat to year's support. Walker Superior Court. Before Judge Davis. January 28, 1958.
A. Cecil Palmour, Bobby Lee Cook, for plaintiff in error.
G. W. Langford, George Paul Shaw, A. W. Cain, Jr., contra.
A tort claim, where no suit has been filed against an estate, can not be the basis of a caveat to defeat a year's support.
DECIDED APRIL 24, 1958 — REHEARING DENIED MAY 16, 1958.
On August 2, 1957 Mrs. H. H. Shankle (hereinafter called the plaintiff) filed an application for a year's support from the estate of her deceased husband. This was filed in the Court of Ordinary of Walker County. On this same date the appraisers made their award and return. On August 5, 1957, the court of ordinary issued legal citation requiring all persons concerned to show cause why said application should not be granted, and ordered that citation be published as provided by law. This citation was legally commenced. On August 26, 1957, Gerald D. Gross (hereinafter called the caveator) filed his caveat to said application and return of the appraisers, and on August 31, 1957, the plaintiff filed her demurrer to the caveat on both general and special grounds. In due course the application and caveat and the demurrers to the said caveat regularly came on for hearing before Hon. W. L. Abney, ordinary, who overruled the demurrers to the caveat and after hearing evidence on said application and caveat, approved the return of the appraisers. The plaintiff filed her appeal from the judgment of the court of ordinary to the Superior Court of Walker County and gave bond according to law. On January 28, 1958, the plaintiff's demurrer to the caveat came on to be heard before Hon. John W. Davis, Judge of the Superior Court of Walker County who entered the following order: "The within demurrer is hereby sustained. This January 28, 1958." To this order of the court the caveator excepted and assigns error on the sustaining of the demurrer and pleaded that the ruling was and is contrary to law. It is further alleged that the sustaining of the said demurrers eliminated the caveator as a party to said case, one of the grounds of the demurrers being as follows: "Said caveat sets forth no right in [the] caveator to intervene is said cause." It is alleged that the sustaining of the said demurrers also terminated the case, there being no objection to the said year's support other than that of the caveator Gross.
The appraiser set apart for the year's support of the plaintiff $7,000 which the said plaintiff has elected as follows: One-half undivided interest in certain described real estate containing 20 acres more or less; all of that tract of land containing 187.3 acres of land known as the Shankle Place, which tract was subject to a loan deed executed by the plaintiff's deceased husband to the Federal Land Bank of Columbia under date of March 14, 1955, for the principal sum of $5,000; one-half undivided interest in a tract of land containing 75 acres more or less, with certain specified reservations; all livestock and farm equipment and all household furniture and all merchandise, fixtures and equipment in what is known as Shankle's Store in Cedartown, Georgia, and all choses in action.
The caveat alleged in paragraph 1 that the caveator has a claim against the estate of H. H. Shankle, deceased, in the amount of $50,000 which arose out of "an intentional tort committed by H. H. Shankle" upon the caveator on April 22, 1957, in Walker County, Georgia. Paragraph 2 alleges that the plaintiff is the sole surviving heir of her deceased husband. Paragraph 3 alleges that the year's support set aside by the appraisers is the entire estate of H. H. Shankle, deceased. Paragraph 4 alleges that the items set out by the appraisers in the year's support were greatly in excess of the value put on same by the appraisers. Paragraph 5 alleges that the amount of $7,000 set aside as the value is more than double that necessary for the support and maintenance of the plaintiff. Paragraph 6 alleges that the plaintiff had disposed of livestock and other property of the estate, the exact value and identity being alleged to be unknown by the caveator, and that the plaintiff has disposed of certain of the property in excess of $2,000. Paragraph 7 alleges that if the property was properly valued there would be a sufficient amount to give the widow a year's support and also enough to satisfy the claim of the caveator.
To the caveat the plaintiff filed demurrers as follows: 1. The plaintiff demurs generally to said caveat and says that it fails to set forth any legal and valid cause of objections. 2. Said caveat sets forth no right in this caveator to intervene. 3. Plaintiff demurs to paragraph 1 of the caveat on the ground that the same is too vague and indefinite to place her on notice as to caveator's contentions and that she is unable to prepare her defense thereto for that reason. 4. Plaintiff demurs to paragraph 1 of the caveat and to the entire caveat upon the ground that there is not attached or incorporated therein any itemized statement of the caveator's alleged claim, nor any bill of particulars setting forth how and in what way the alleged claim against the estate arose, nor is there any sufficient allegation of facts to enable the plaintiff or the court to determine whether said alleged claim is based on contract, account, or tort. 5. Plaintiff demurs to paragraph 1 of said caveat upon the ground that the allegation of claim constitutes a mere conclusion of the pleader unsupported by any sufficient allegation of fact to support the claim. 6. Plaintiff demurs to paragraph 4 of said caveat upon the ground that same is too vague and indefinite to put her on notice as to matters against which she is to defend, that she is unable to prepare her defense because of indefiniteness in the description of the real estate and the livestock and the stock and fixtures in the store, and other matters. 7. The plaintiff demurs to paragraph 6 of said caveat on the grounds that the allegations contained therein are immaterial and irrelevant to the issue involved in the application for a year's support and the caveat thereto and that the proceeding did not require any accounting by the plaintiff.
It is to the order of the court sustaining the demurrer that the case is here for review.
The question presented here is whether or not the caveator has the legal right to contest the judgment of the Superior Court of Walker County in sustaining the demurrers to the caveat.
A tort claimant whose suit is not filed on his claim is not entitled to file a caveat to a year's support. It is settled, as stated in Gibson v. Gibson, 50 Ga. App. 345, 346 ( 178 S.E. 181) as follows: "Only heirs, their privies, and creditors may contest with a widow and minor children their right to a year's support out of the estate of the deceased husband and father." See also Jones v. Cooner, 137 Ga. 681 ( 74 S.E. 51), Grant v. Sosebee, 169 Ga. 658 ( 151 S.E. 336), and Montgomery v. McCants, 49 Ga. App. 324 ( 175 S.E. 397). Code § 113-1508 gives a year's support for the family as number one in the order of claims against the estate of a decedent. As has been many times stated, a year's support is a favored child of the law. Survivorship does not give a person in the position of the caveator in the case at bar a lawful right to file a caveat for a tort such as here. Moreover, any creditor must file against the personal representative of the estate as shown by Code (Ann.) § 3-505 which reads as follows: "No action for a tort shall abate by the death of either party, where the wrongdoer received any benefit from the tort complained of; nor shall any action, or cause of action, for the recovery of damages for homicide, injury to person, or injury to property abate by the death of either party; but such cause of action, in case of the death of the plaintiff, shall, in the event there is not right of survivorship in any other person, survive to the personal representative of the deceased plaintiff; and in case of the death of the defendant, shall survive against said defendant's personal representative. However, in the event of the death of the wrongdoer before suit shall have been brought against him, the personal representative of such wrongdoer in such capacity shall be subject to suit just as the wrongdoer himself would have been during his life; providing that there shall be no punitive damages. (Acts 1889, p. 73; 1935, pp. 94, 95; 1952, p. 224.)"
We might add that the caveator contends that the superior court failed to permit him to amend his petition and that the case should be reversed in order to allow him to file an amendment. In Richardson v. Pollard, 57 Ga. App. 777 ( 196 S.E. 199) this court said: "Where a petition is lacking in substance and is subject to a general demurrer, the judge need not give the plaintiff opportunity to amend before sustaining the demurrer. Ripley v. Eady, [ 106 Ga. 422, 32 S.E. 343]. . . The court therefore acted properly in sustaining the demurrer." However, in the instant case no kind of amendment could be made which would sustain the claim of the caveator as against the widow's year's support. The law provides ample measures for one to assert a legitimate claim against an estate.
There are numerous decisions cited by counsel for both the plaintiff and the caveator but we see no necessity for citing any further authorities in the premises.
The court did not err in sustaining the general and special demurrers and dismissing the caveat.
Judgment affirmed. Townsend and Carlisle, JJ., concur.