1. The overruling of the demurrer to the caveat was not error.
2. The verdict was authorized by the evidence and the law applicable thereto; and none of the special assignments of error shows cause for a reversal of the judgment.
DECIDED MARCH 1, 1946. REHEARING DENIED MARCH 20, 1946. L. G. Smith died, intestate, on June 17, 1944, and his widow (who, by operation of law, became administratrix of his estate) *Page 568 filed a petition in the ordinary's court, on July 4, 1944, asking for a year's support for herself and her two minor children. The appraisers appointed by the ordinary set apart as a year's support, for the widow and her unmarried minor daughter (the other minor daughter being married), $1500 in money and all of the household furniture belonging to the estate of the deceased. Upon the hearing of the application, L. M. Smith and six other children of L. G. Smith by his deceased first wife filed a caveat to the return of the appraisers. The caveat was demurred to by the applicant, who also filed an answer thereto.
By consent, the case was appealed to the superior court. The demurrer was overruled, that judgment was properly excepted to pendente lite, and error is assigned as thereon. On the trial the jury returned a verdict finding against the return of the appraisers and denying a year's support.
The applicant excepts to the denial of her motion for a new trial. The caveat objected to the return of the appraisers on the following grounds: 1. The applicant is the second wife of L. G. Smith, deceased, and her minor unmarried daughter is her child by said deceased. 2. The caveators are the children of said deceased by his first wife. 3. At the March term, 1944, of the court of ordinary, the applicant was appointed guardian of the person and property of her now deceased husband on the ground that he was incompetent and incapable of managing his estate. 4. Said deceased died on June 17, 1944. 5. During his lifetime the deceased sold $1200 worth of timber, and that sum was put in the bank to his credit; and while he was ill and incompetent to attend to business, the applicant converted said sum to her own use, disposed of it, and has refused to account for it. 6. The deceased, during his lifetime, owned and had in a warehouse in Washington, Georgia, 29 bales of cotton of the value of $3000 or other large sum and, while he was ill and incompetent to attend to his business, the applicant obtained that sum, converted it to her own use, disposed of it, and has refused to account for it. 7. Said deceased, during his lifetime, owned cattle and livestock of the value of $1000 or other large sum, and while he was ill and incompetent to attend to his business, the applicant disposed of and converted to her own use the cattle and livestock, and has refused to account for the same. 8. L. G. Smith during his lifetime *Page 569 had other sums of money in the bank, the amount thereof being unknown to the caveators, and while he was ill, incompetent, and unable to attend to his business, the applicant converted said money to her own use, disposed of it, and has refused to account for it. 9. On May 2, 1942, the applicant, through undue influence, at a time when said Smith was ill and incompetent, persuaded him to execute and deliver to her a warranty deed to 121 acres of land, more or less, the same being his home place; and in that deed he also conveyed to her all farm machinery, equipment, tools, and wagons owned by him, and a stock of goods and merchandise owned by him, the value thereof being unknown to the caveators; and in the same deed he conveyed to her a 1931-model Chevrolet automobile. And though said deed was executed on May 2, 1942, it was not recorded until February 9, 1944, which was after the caveators had objected to the manner in which she was converting her husband's property to her own use, and after they had informed her that they were going to apply to the ordinary to have a guardian appointed for her husband. 10. On October 22, 1942, her husband sold real estate in Tignall to V. L. Beard for $375, and that sum was obtained from her husband by the applicant, converted to her own use, and she has failed and refused to account for it. 11. On or about the — day of ____ 19__, through undue influence and when her husband was ill and incompetent, she persuaded him to execute a certain trust agreement in favor of their two minor children, setting aside to them $1600 in cash, and providing that, upon the death of their father, she would become the trustee of said sum, said agreement being duly recorded in the office of the clerk of the superior court of Elbert County, Georgia. 12. During the past 12 months she has bought 3 or more automobiles with funds of her said husband, and has refused to account for said funds. 13. She has made gifts to her minor children of large sums of money belonging to her husband, the amount being unknown to your caveators, and has refused to account for said sums. 14. Her application for a year's support is merely a scheme to deplete the residue of her husband's estate and to cover up the sums illegally converted to her own use and to protect herself and her surety on her guardian's bond. 15-16. Under the above-stated facts, said sum of $1500 is *Page 570 excessive and disproportionate to the value of said estate, and unjust and inequitable to your caveators.
The applicant demurred to paragraphs 5, 6, 9, 10, 12, 13, and 14 of the caveat, because the allegations therein were not relevant to the issues of this proceeding. She demurred to paragraphs 7 and 8 of the caveat, because their allegations were not relevant to the issues of a proceeding for a year's support, but should be determined in a final settlement of the estate of the deceased, or in an action for the recovery of any sums that might be due the estate by the applicant. She demurred to paragraph 11, on the ground that the facts therein alleged are not relevant to the issues in this proceeding, but should be determined in an action to set aside such conveyances if made under the facts alleged. She demurred to paragraphs 15 and 16, "because they are merely conclusions of the caveators, and no facts are alleged to substantiate the objection of caveators to the amount set aside as year's support to applicant and the minor child." The applicant in her answer admitted the allegations of paragraphs 1, 2, 3, and 4 of the caveat, and denied those of paragraphs 5, 6, 7, 10, 11, 12, 13, 14, 15, and 16. In denying the allegations of paragraph 6, she stated that her husband "did have certain cotton in the warehouse which was sold, and she is ready and willing at the proper time to make full and complete showing for the same." In answer to paragraph 8, she admitted that her husband "during his lifetime had sums of money, but whether in the bank, or in cash, she is unable to say, but denied the other allegation of the paragraph." In answer to paragraph 9, she said: That her husband "during his lifetime executed and delivered to her a certain deed to 121 acres of land and other property therein described, and [applicant] avers that at the time thereof he was of sound mind. She shows that for many years he was ill and in infirm health, and applicant had to look after the farms and household affairs and manage all the affairs of the family. She shows that through her work and the work of her children this 121-acre tract was obtained, and her husband, knowing all these facts, voluntarily and of his own free will, and without influence exerted by her, made the deed to the 121 acres to her." The applicant further alleged in her answer: "At the time she married L. G. Smith, he owned only the farm in Oglethorpe County. He had given to his children by his first *Page 571 wife property and money of various amounts and at different times. She and her husband first lived in Oglethorpe County, and she worked hard and helped him accumulate money with which they purchased the property in Wilkes County. She avers that her children, by this marriage, which was her first and only marriage, also worked in the fields and in and around the home, and helped to accumulate the funds with which the Wilkes County property was purchased. Some years prior to the death of her husband, he became ill and was infirm and unable to do any work, and the whole burden of caring for the farm and home and managing the affairs of their family and home fell upon and was carried by her. She did all in her power to assist in making a home for their children and for her husband, and she and her children were hard-working and frugal. The cotton and other property that is alleged to have been taken by her to her own use — she is ready and able to make full and complete account for any and all sums that have come into her hands. She shows that she is under bond in the amount of $5000, guaranteed by a solvent surety company, and that all the matters alleged in the caveat can and will be equitably and fairly accounted for. She and her minor daughter are dependent for food and clothing on the year's support asked for in her application, which she avers is reasonable and just." 1. Was the caveat subject to the demurrer interposed? Counsel for the applicant state in their brief that the court erred in overruling the demurrer on all of its grounds, because the allegations of paragraphs 5 to 13, inclusive, of the caveat allege facts and raise issues not relevant or admissible in a case such as this, originating in the court of ordinary, which possesses no equity powers; and because the allegations in paragraphs 14 to 16, inclusive, are merely conclusions of the pleader, and set forth no facts upon which such conclusions are based. Counsel contend that, since this case began in the court of ordinary, which has no equity powers to set aside a deed, or to declare it invalid, the superior court, on an appeal thereof, has no greater powers than the court of ordinary, and that, in order for the widow to be liable to account for the land allegedly obtained by her by using undue influence and fraudulent *Page 572 means, it would be necessary first to have the conveyances declared void by a court having equity jurisdiction. The answer to this contention is that the caveators are not asking that deeds to land be cancelled or set aside, but that the widow should be forced to account for the amount of the rents and profits therefrom, and that the amount of the judgment of the appraisers setting aside the year's support was excessive, and was not set aside with due regard to the circumstances and standing of the family prior to the husband's death. Counsel for the applicant also contend that the caveat should have been dismissed on demurrer, because the applicant should not be forced to account for her management of her husband's estate in this proceeding, but that such accounting should be determined upon a final settlement of the estate. We can not agree with this contention. In Tabb v. Collier, 68 Ga. 641, 643, the court said that a contention, that the family had a year's support before the formal setting apart of such support, should have been invoked "before, not after, the final judgment of the ordinary has been pronounced." In Goss v. Greenaway, 70 Ga. 130 (2), it was held that, when the final judgment of the ordinary setting apart a year's support has been rendered, it is too late to attack the judgment. And (on p. 132) the court said: "The cases cited in [Blassingame v. Rose] 34 Ga. 418, and in [Wells v. Wilder] 36 Ga. 194, were cases where objections were filed to the allowance [of a year's support] before the ordinary, and then carried by appeal to the superior court. That was the proper place and the right time to file objections and have the rights of the parties settled."
In Wells v. Wilder, supra, the headnote reads: "The laws of Georgia allow a widow one year's support for herself and minor children out of the estate of her deceased husband. They do not contemplate that she shall live at the homestead and consume the provisions belonging to the estate, and have a year's support also allowed. Whenever the widow applies for an assignment ofthe year's support, she must be charged with the value of what she previously consumed." (Italics ours.) And in Fulghum v.Fulghum, 111 Ga. 639 (36 S.E. 602), the court stated: "The administrator of an estate from which a year's support for the widow of an intestate has been duly and finally set apart, in money, can not, when an execution has been issued against him for the collection *Page 573 of the same, go behind the judgment for the purpose of showing that he is entitled to a credit upon the judgment for money advanced by him, from the estate, to the widow upon her year's support before it was finally set aside." In our opinion the court did not err in overruling the special demurrers to the caveat; and no general demurrer was interposed.
2. The evidence, while in sharp conflict, authorized the finding of the jury; and therefore the general grounds of the motion for a new trial are without merit.
Special grounds 3 and 5 complain that the court's charge, upon the question of whether the applicant used undue influence upon her husband to induce him to execute certain deeds to her, was error, because there is no evidence whatever in the record as to any such undue influence. However, the trial judge certifies in a note that a part of his charge upon that subject was given in accordance with a written request handed to him by counsel for the applicant. And the record shows that said counsel introduced evidence upon that subject. It follows, therefore, that counsel waived their right to thereafter contend that the charge upon "undue influence" was error because it was not authorized by any evidence. Don v. Don, 162 Ga. 240 (2) (133 S.E. 242);Wallis v. Watson, 184 Ga. 38 (190 S.E. 360); Patterson v. Sams, 2 Ga. App. 755 (3) (59 S.E. 18). The other exceptions to this charge, as set forth in special grounds 3 and 5, are without merit.
None of the remaining special grounds shows cause for another hearing of the case.
Judgment affirmed. MacIntyre and Gardner, JJ., concur.