1. The court did not err in overruling all demurrers.
2. Where an auditor's findings of fact, unexcepted to, show that a man and a woman expressly agreed to end an illicit relationship and to become husband and wife, this is an adjudication binding upon all parties as to the facts, and demands the conclusion of law made by the auditor that they were husband and wife.
(a) In such a case the court is not allowed to go behind the auditor's findings and examine the evidence in the brief, but is confined to the facts found by the auditor.
3. A year's support is of statutory origin and can be set aside only by the procedure described by the statute. The court of ordinary has exclusive jurisdiction, and a court of equity is without jurisdiction to set aside a year's support.
4. The evidence demanded a finding that the $150 in the wallet of the decedent when he went to the hospital was spent in paying his obligations during his life. The evidence also demanded a finding that a part of the $2743 in the hands of a certain witness was the property of the defendant. Therefore, it was error to overrule the defendant's exceptions 5 and 6 to the findings of the auditor that these two sums belonged to the estate of the decedent.
5. The petitioner's exceptions of law are controlled in part adversely to him by the rulings in division 2 of the opinion, and those not so controlled are without merit.
Nos. 16465, 16468. FEBRUARY 14, 1949. REHEARING DENIED MARCH 16, 1949. The petition of C. S. Carr Jr. against Annie Mae Walker, alias Annie Mae Carr, individually and as administratrix of the *Page 2 estate of C. S. Carr Sr., alleged the following: The petitioner is the only son of C. S. Carr Sr. and Nellie A. Carr, the petitioner's mother. The petitioner's mother died on July 23, 1943, and his father died on February 8, 1947, leaving an estate of approximately $9000. The petitioner is the sole heir at law of his deceased father. The petitioner's father, while living with the petitioner and his mother and sister, who have subsequently died, at their home at 1607 Twelfth Street, Augusta, Georgia, began an illicit relationship with the defendant, who knew of the family of the petitioner's father, and because of such conduct the petitioner's mother became embarrassed and left, placing the petitioner and his sister in a boarding school. The defendant thereafter moved into the home of the petitioner's father and lived in the said home in open and notorious adultery with the father until his death. After the death of the petitioner's father and mother, the defendant, in order to get control of and misapply the assets of the estate, falsely and fraudulently led the petitioner to believe that she was the wife of his deceased father. She went before the court of ordinary and obtained an order of appointment as administratrix of the estate by falsely and fraudulently swearing that she was the wife of the petitioner's deceased father, and that the personal property of the estate was of little or no value, while she at that time had stolen and secretly hidden approximately $3500 belonging to the estate. Her letters of administration were thus fraudulently procured, and as administratrix she took possession of the property of the estate and is now hiding cash which belongs to the estate. She undertook to enlist the aid of the cashier of a bank, F. B. Pope, in her fraudulent scheme to hide the cash assets of the estate, but Pope refused to assist her. The court of ordinary is without jurisdiction to grant full relief to the petitioner, and a court of equity, having concurrent jurisdiction, should assume jurisdiction of the whole matter. The relief prayed was: that the defendant's appointment as administratrix be decreed illegal and void; that a receiver be appointed to take charge of the assets of the estate; that the petitioner be decreed to be the sole heir at law of C. S. Carr Sr., deceased, and as such entitled to recover all of the property of the estate after payment of debts and expenses of this action; that the petitioner have judgment against the *Page 3 defendant, individually and as administratrix, for all the property which she has misappropriated; and that she be enjoined from changing the status of the property or interfering with or molesting or retaining possession of such property, and be enjoined from proceeding further with any proceedings or taking any new action of any kind in connection with the estate in the court of ordinary; and for process, rule nisi, and general relief.
The defendant answered, denying the material allegations of the petition, and further pleaded that the defendant is the widow of C. S. Carr Sr., deceased, and as such entitled to one-half of the estate, as one of his two heirs at law, and to dower and year's support; and that the money referred to on page 14 of the petition was $2757.50, which was given to the defendant by C. S. Carr Sr. during his lifetime, and is the property of the defendant. The defendant prayed that she be decreed to be the widow of the deceased and entitled to one-half of the estate; that she be decreed to be entitled to a year's support and dower in the real estate; that the funds referred to in paragraph 14 of the petition be decreed to be the property of the defendant and not a part of the estate; and for general relief.
By amendment the defendant alleged that the petitioner, by his conduct in recognizing and dealing with her, is estopped from denying that she is the widow of C. S. Carr Sr., and that the petitioner, by his presence in the court of ordinary, assisting the defendant in her application for appointment as administratrix, is estopped from denying the validity of her appointment as administratrix of the estate of C. S. Carr Sr.
By further amendment the defendant alleged that she had been enjoined from prosecuting her application for a year's support in the court of ordinary, and asked that the court of equity grant her a year's support.
The case was referred by the court to an auditor with authority to rule upon all questions of law and fact. After hearing evidence the auditor made his report, in which he found and determined as to the pleadings:
"1. That the general demurrer to the plaintiff's petition and all such demurrers thereto are overruled. 2. That the motion of defense counsel to strike the special demurrer to the defendant's answer is allowed, and the special demurrer is so striken. *Page 4
3. That the motion of plaintiff's counsel to strike defense's answer because there is no allegation as to marriage is not allowed, the answer setting forth sufficient facts as to the said marital relation to withstand a general demurrer. 4. That the amendment of defendant setting up estoppel on the part of the plaintiff is allowed. 5. That the receiver's report and amendment are allowed. 6. That the amendment of defendant praying that the auditor determine the amount of year's support is allowed. 7. That the intervention filed in behalf of Anthony Carr, Harold G. Davis, Corrine Carr, Henry Carr, and Willie G. Carr by Thelma Carr Holden, as attorney in fact, is, upon motion of their attorney made after an investigation of the facts, not allowed."
He also found: That C. S. Carr died intestate on February 8, 1947, leaving one son, C. S. Carr Jr. The defendant and the decedent lived together in illicit relationship of meretricious cohabitation at 1607 Twelfth Street, Augusta, Georgia, beginning in 1932, he referring to her as his housekeeper until about 1935 when he began to refer to her as his wife. He held her out to the world as his wife, and she was generally recognized as Mrs. Carr, particularly after the death of his first wife in 1943. "By their acts and conduct, it is found that they entered into an affirmative agreement to terminate their illicit relationship and to become man and wife, and that agreement was renewed and they continued to abide by it in good faith after her death." The proceeds of a named policy with Metropolitan Life Insurance Company belong to the defendant, it having been made payable to her. The sum of $3893.25, representing amounts obtained from various sources, belongs to the defendant as administratrix or to the receiver appointed by the court. $300, in the possession of the receiver which was in a sack with $2743 that he received from Beatrice Wallace, is the property of the defendant individually. Certain debts of the estate are to be paid. The defendant paid $93.70 for utility bills from funds of the estate, and she and the petitioner each owe half of that amount to her as administratrix.
After dealing with certain facts which he found and discussing certain authorities of law, the auditor found: "Upon consideration of the authorities cited above and others which are not *Page 5 mentioned here, it is found as a conclusion of law that the defendant, Annie Mae Walker Carr, was the widow of C. S. Carr Sr. at the time of his death, by virtue of cohabitation under a renewed and valid agreement of marriage after the death of the decedent's first wife."
In an amended report the auditor found as a fact that $3500 in cash is a sufficiency from the estate for the support and maintenance of the defendant as a year's support.
The petitioner in due time filed exceptions as follows: 1. To the overruling of the demurrers. 2. Allowing the defendant's plea of estoppel. 3. Allowing the receiver's report and amendments thereto. 4. Allowing the amendment of the defendant praying that the auditor determine the amount of a year's support. 5. The conclusion of law of the auditor that the defendant was, at the time of his death, the widow of C. S. Carr Sr. 6. The conclusion of law of the auditor that "By their acts and conduct it is found that they entered into an affirmative agreement to terminate their illicit relationship and to become man and wife, and that agreement was renewed and they continued to abide by it in good faith after her [his wife's] death." 7. To the findings and conclusions of the auditor as a whole. 8. The conclusion that the $300 in the hands of the receiver, received from Beatrice Wallace, was the property of the defendant. 9. The finding of the auditor that "the debts of the estate of C. S. Carr Sr., paid by Annie Mae Walker as set out in `Exhibit C,' page 1 of the receiver's report filed August 4, 1947, are correct." 10. Admitting in evidence testimony of the defendant that, after going to Augusta, Georgia, in 1932 and living with the decedent, they were later married in Aiken, South Carolina, the latter part of 1935. 11. Admitting testimony of a witness, that he knew the lawful wife of the decedent, Nellie Carr, and that the defendant knew she was living and while claiming to be his wife knew that he had a living wife in New York. 12. Rejecting a letter from a probate judge in Aiken County, South Carolina, that "We have searched our records from 1931 through 1941 and find no record of such marriage." 13. Rejecting testimony of the defendant as to a certain conversation with her attorney.
The petitioner also filed exceptions to the amended report of *Page 6 the auditor that $3500 in cash is found to be a sufficiency from the estate for a year's support for the defendant.
The defendant filed exceptions as follows: 1. To the rejection of testimony of the defendant as to what a certain person in Aiken, South Carolina, told the decedent about a marriage license at the time of her alleged marriage to the decedent. 2. Rejection of affirmative answers by the defendant to questions as to whether the decedent, when he went to a hospital, stated that certain money was the defendant's, and whether she had another combination to a safe for her convenience. 3. Rejecting testimony of the defendant as to the gift of certain money to her by the decedent. 4. Failure of the auditor to find that there had been a ceremonial marriage between the defendant and the decedent. 5. The finding that the defendant had received $150 from the billfold of C. S. Carr, deceased. 6. The finding that $2743, received by the receiver from Beatrice Wallace, belonged to the estate of C. E. Carr, deceased.
The exceptions of the defendant included the following exceptions of law: 1. To the failure of the auditor to find that the burden was on the petitioner to show the existence of a previous undissolved marriage by the deceased, Dr. C. S. Carr, and to find that he had failed to carry such burden. The defendant prayed that the court sustain such exceptions and render a decree accordingly, and also moved to correct the brief of evidence in certain particulars.
The petitioner filed exceptions of fact, but after numerous orders of the court, including the order approving the exceptions of fact and directing that the same be submitted to a jury, the petitioner petitioned the court to enter a final decree reciting that all questions of fact had been eliminated; and the court entered a final decree, reciting that the petitioner had waived his exceptions of fact. That decree adjudicated in substance: 1. C. S. Carr Jr. is the sole heir at law of the deceased, C. S. Carr Sr., and has the fee-simple title to all property and assets of the estate of C. S. Carr Sr., subject to the payment of all lawful claims against the estate. 2. The fee-simple title to the real property of which C. S. Carr Sr. died seized and possessed descended to the petitioner, C. S. Carr Jr., as his sole heir at law, the decree describing the said property. 3. Disallowing a certain *Page 7 intervention. 4. Fixing of costs and payment thereof. 5. Dismissal of a certain garnishment proceeding after payment by the defendant of all costs charged to her. 6. Providing that, after payment of the sums ordered in the decree, the remaining money in the hands of the receiver be paid to the petitioner's counsel, Paul T. Chance, Esq. 7. Discharging the receiver upon compliance with the decree and relieving him of all further obligations and duties in the premises, canceling the bond of the receiver and relieving his bondsmen from any further obligations; provided that, in case of appeal by either party, the receiver shall take possession of the real estate described in the decree, rent the same, and hold the rent until a final decision of the case, with authority to pay insurance and bond premiums from the rents.
The petitioner in the trial court, by direct bill of exceptions in case No. 16465, assigns error on those portions of the final decree which were unfavorable to him. The defendant brings error to this court in case No. 16468, excepting to the portions of the final decree unfavorable to her, and assigns error on numerous rulings which preceded the final decree and to which approved exceptions pendente lite had been taken. The two cases made by separate writs of error relate to the one case in the trial court, and will be decided in one opinion.
1. The petition was not subject to the general demurrer. Nor was the answer subject to the ground of special demurrer that it failed to allege more specifically the details of the alleged marriage. Brown v. Parks, 169 Ga. 712 (151 S.E. 340). Because of rulings which will be made in this opinion, it is immaterial whether or not the court erred in allowing the amendments offered by the defendant.
2. This case involves and is controlled by the plain, simple *Page 8 question whether or not the defendant was the lawful wife of the decedent, C. S. Carr Sr. Had this issue been submitted to a jury in an ordinary trial and the evidence in this record introduced upon that trial, a verdict of the jury based upon that evidence would not be difficult to review, but we have encountered immeasurable difficulties in trying to follow out the voluminous procedure resulting from its submission to the auditor. The findings of fact made by the auditor, in so far as they relate to the exceptions of law filed by the petitioner in the trial court, not having been excepted to, are res adjudicata, and this court will treat those findings as the true facts in the case in ruling upon all such questions of law. Lefkoff v. Sicro, 193 Ga. 292 (18 S.E.2d 464); Ross v. Rambo, 195 Ga. 100 (4) (23 S.E.2d 687). The petitioner filed exceptions of fact, and the court approved them, but had this remained the status of the case, the issue made thereby would, under the law (Code, § 10-402; McDonald v. Dabney, 161 Ga. 711, 132 S.E. 547;Owen v. S.P. Richards Paper Co., 188 Ga. 258,3 S.E.2d 660), have required submission to a jury; but in the absence of any express withdrawal or waiver of such exceptions the petitioner, by petitioning for a final decree, as a matter of law waived all the exceptions of fact. Therefore, in passing upon all the rulings of the trial judge upon the petitioner's exceptions of law, wherever a consideration of the facts is necessary we must look alone to those facts as found and reported by the auditor, and are not allowed to go beyond them for the purpose of considering the evidence as it appears in the brief of the evidence. Looking to the auditor's findings of fact, we find the following: "By their acts and conduct it is found that they entered into a voluntary agreement to terminate their illicit relationship and to become man and wife, and that agreement was renewed and they continued to abide by it in good faith after her death (the first wife of Carr)." Based upon this adjudicated fact, the auditor made the following conclusion of law to which the trial court sustained the petitioner's exceptions of law: "Upon consideration of the authorities cited above, and others which are not mentioned here, it is found as a conclusion of law that the defendant, Annie Mae Walker Carr, was the widow of C. S. Carr Sr. at the time of his death, by virtue of cohabitation under *Page 9 a renewed and valid agreement of marriage after the death of the decedent's first wife." The conclusion of law is a decision of the auditor upon a decisive question in the case. By sustaining the petitioner's exceptions thereto and entering the final decree, the trial judge reversed the auditor and decreed that the defendant had not been the wife of the decedent and is not entitled to share as an heir at law in his estate or to administer thereon. The petitioner's exceptions of law and the judge's rulings thereon cite and quote testimony of numerous witnesses that would strongly tend to contradict the auditor's findings of fact; yet, as ruled above, neither the trial judge nor this court is authorized by law to consider such testimony and evidence, but are limited strictly to the auditor's finding as it appears in the case. This being true, the facts as thus fixed not only authorize but demand the conclusion of law which the auditor made. While elsewhere in his findings of fact the auditor had found that in the beginning the defendant's relationship with the decedent was illicit, his further finding that this illicit relationship was by agreement terminated, and the parties expressly agreed to become man and wife, brings the case squarely within the rule announced in Clark v. Cassidy,62 Ga. 407, 410, Smith v. Smith, 84 Ga. 440 (11 S.E. 496), Drawdy v. Hesters, 130 Ga. 161 (60 S.E. 451),Smith v. Reed, 145 Ga. 720 (89 S.E. 815), and Addison v.Addison, 186 Ga. 155 (197 S.E. 232), all of which decisions hold that, while cohabitation, illicit in its inception, will be presumed to have continued, yet if after the disability has been removed the cohabitation is continued and the parties hold themselves out as man and wife, a new and valid agreement of marriage will be presumed to have been entered upon, in the absence of anything appearing to the contrary. While most of those cases dealt with ceremonial marriages, the same rule would apply with equal effect to common-law marriages.
Counsel for the petitioner strongly urge that the evidence shows that the defendant knew all the time that the decedent was the lawful husband of the petitioner's mother. Here again the law shuts the door to the brief of the evidence and requires an acceptance of the findings of fact by the auditor as the only evidence in the case. There is no finding by the auditor that any such previous marriage of the decedent has not been dissolved *Page 10 by divorce upon a petition of either of the parties thereto. Thus the record, to which we are confined, fails to support the contention of counsel. Furthermore, the agreement between the decedent and the defendant after the death of the first wife and its fulfillment, as found by the auditor, would have made the defendant his lawful wife, regardless of any previous illegal and illicit relations which he found they had agreed to terminate. Since the facts found by the auditor are sufficient to show a common-law marriage between the defendant and the decedent, the law will place around that marriage every presumption of validity, and the petitioner, in attacking the same upon the ground that one of the parties thereto was at the time the spouse of another living person, had the burden of proving that the marriage to such other person had not been dissolved. Murchison v. Green, 128 Ga. 339 (57 S.E. 709, 11 L.R.A. (N.S.) 702); McDonald v. McDonald, 180 Ga. 771, 777 (180 S.E. 815); Renfroe v. Hamilton, 193 Ga. 194, 199 (17 S.E.2d 709); Nash v. Nash, 198 Ga. 527 (32 S.E.2d 379); Reed v. Reed, 202 Ga. 508 (43 S.E.2d 539). This was not done.
It follows that the trial court erred in sustaining the petitioner's exception of law to the auditor's conclusion of law that the defendant was the wife of the decedent at the time of his death; and that the court erred in entering a final decree, to the effect that the defendant was not the wife of the decedent and was not entitled to a one-half interest as an heir at law of the estate and not entitled to administer thereon.
3. A year's support under the Code, § 113-1002, et seq. is purely a statutory right, and if obtained, must be obtained in the manner prescribed by the statute. That law gives to the court of ordinary exclusive jurisdiction. A court of equity is without jurisdiction to grant or set aside a year's support. Kerr v.McAnally, 183 Ga. 365 (2) (188 S.E. 687), et cit. The trial court did not err in disapproving the finding of the auditor awarding a year's support. Wade v. Peacock, 121 Ga. 816 (49 S.E. 826).
4. The defendant's exceptions 5 and 6 are well founded, and the court erred in overruling them. The undisputed evidence shows that the $150 in the wallet of the decedent when he went to the hospital was used to pay expenses of the household and *Page 11 hospital, all of which were obligations of the decedent. The writing signed by the decedent, dated April 23, 1945, conclusively shows that $558.50 of the $2743 turned over by Beatrice Wallace was the property of the defendant. These exceptions complain of the auditor's findings that both the $150 and the $2743 were funds belonging to the estate of Dr. Carr. Since, as above demonstrated, both findings were contrary to the evidence, it was error to overrule the exceptions. The presumption in favor of the auditor's findings (Barber v.Southern Service Corp., 182 Ga. 124, 185 S.E. 93) is thus rebutted.
5. The petitioner's exceptions of law, 1 through 9, have been dealt with in part in our ruling in division 2 of this opinion, and where not controlled thereby adversely to the petitioner are without merit. Exception 10, to allowing the defendant to testify as to transactions with the decedent, is without merit. In Neal v. Neal, 153 Ga. 44 (2) (111 S.E. 387), it was ruled: "In a suit by a widow as administratrix against the heirs of the intestate, to marshal assets and for an accounting, the widow is a competent witness for the plaintiff, under the provisions of the Civil Code, § 5858 [now § 38-1603], to testify as to declarations of the deceased tending to show that certain property delivered to some of the heirs was intended as advancements." Exceptions 11, 12, and 13 complain of the disallowance of testimony of the petitioner's witness that the defendant knew, while living with the decedent, that he had a lawful wife in life; the exclusion of a letter from a probate judge in Aiken, South Carolina, that records of his office had been searched and no record of a marriage between the decedent and the defendant had been found; and the exclusion of testimony of the defendant as to a certain conversation between her and her counsel. These exceptions are all without merit and should have been overruled.
It follows from what has been said that the rulings complained of in case No. 16465 are affirmed, and the rulings in case No. 16468 are reversed except that disallowing a year's support.
Judgment affirmed in bill of exceptions No. 16465. Judgmentaffirmed in part and reversed in part in bill of exceptions No.16468. All the Justices concur. *Page 12