General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1952, p. 288, §§ 1 and 3, Ga. L. 1959, p. 299, § 1, and former O.C.G.A. § 53-4-6 are included in the annotations for this Code section.

Constitutionality. - The contention that Ga. L. 1959, p. 299, § 1 is void as being in violation of U.S. Const., Art. I, Sec. 10, Cl. 1 which prohibits passage of any bill of attainder or ex post facto law, or because it is a law impairing the obligations of a contract, or that it operates to deprive a murderer of the murderer's property without due process of law, or that the statute is in violation of U.S. Const., amend. 14 which prohibits states from enforcing any law abridging the privileges or immunities of citizens or denying to citizens within its borders the equal protection of the laws and the contention that a conviction in such a case would work corruption of blood or forfeiture of property in violation of Ga. Const. 1976, Art. I, Sec. II, Para. III (now see Ga. Const. 1983, Art. I, Sec. I, Para. XX) are not meritorious. Moore v. Moore, 225 Ga. 340 , 168 S.E.2d 318 (1969) (decided under Ga. L. 1959, p. 299, § 1).

Enactment of Ga. L. 1959, p. 299, § 1 as valid exercise of legislative power. - Power to enact Ga. L. 1959, p. 299, § 1 was undoubtedly in the General Assembly, inasmuch as the General Assembly possesses the power to provide rules of descent and distribution. Moore v. Moore, 225 Ga. 340 , 168 S.E.2d 318 (1969) (decided under Ga. L. 1959, p. 299, § 1).

Purpose of section. - Primary purpose of statute is to reduce the profits of crime. National Life & Accident Ins. Co. v. Thornton, 125 Ga. App. 589 , 188 S.E.2d 435 (1972) (decided under Ga. L. 1959, p. 299, § 1).

Former O.C.G.A. § 53-4-6 required the slayer's portion of victim's estate pass to alternative beneficiaries when a valid will so provides and alternative beneficiaries, who are not prohibited by law from taking from the victim, are named in the will. Bradley v. Bradley, 213 Ga. App. 68 , 443 S.E.2d 863 (1994) (decided under former O.C.G.A. § 53-4-6).

Rights of those who kill by accident or negligence not impaired. - Statutes that embody the public policy of Georgia of prohibiting wrongdoers from profiting from their crimes, O.C.G.A. §§ 17-14-31 , 33-25-13 , and 53-1-5 , only prevent those who feloniously and intentionally kill, O.C.G.A. § 53-1-5 (a), or those who commit murder or voluntary manslaughter, O.C.G.A. § 33-25-13 , from sharing, respectively, in the decedent's estate or insurance policy proceeds; if a public policy may be gleaned from these statutes, it is a policy that prohibits those who commit murder or voluntary manslaughter from profiting from the victim's death, but these statutes do not impair the rights of those who kill by accident or negligence, who kill in self-defense or pursuant to any other legal justification, or who kill while legally insane because simply admitting to having committed a homicide does not make one a wrongdoer under Georgia law. Bruscato v. O'Brien, 307 Ga. App. 452 , 705 S.E.2d 275 (2010).

Summary judgment. - When substantial fact issues existed as to whether an insurance policy provision transferring ownership to the insured was activated in an apparent murder/suicide case, and whether the insured had murdered his wife, the owner of the policy, it was error of the court to grant summary judgment. Bland v. Ussery, 172 Ga. App. 131 , 322 S.E.2d 335 (1984) (decided under former O.C.G.A. § 53-4-6).

Cited in Butler v. Hicks, 229 Ga. 72 , 189 S.E.2d 416 (1972); Edwards v. Edwards, 136 Ga. App. 668 , 222 S.E.2d 169 (1975); Graham v. Youngblood, 256 Ga. 183 , 345 S.E.2d 593 (1986); Edwards v. Shumate, 266 Ga. 374 , 468 S.E.2d 23 (1996); Rader v. State, 300 Ga. App. 411 , 685 S.E.2d 405 (2009); O'Brien v. Bruscato, 289 Ga. 739 , 715 S.E.2d 120 (2011).

Applicability

1. In General

Applicability of Ga. L. 1959, p. 299, § 1 generally. - Ga. L. 1959, p. 299, § 1 applies if, by the wrongful act of the legatee, the testator dies before the legatee and the legatee by law is treated as having died before the testator. McGhee v. Banks, 115 Ga. App. 155 , 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

Victim does not become heir of murderer. - After the husband killed his wife and then committed suicide in an apparent murder/suicide, the provision of former O.C.G.A. § 53-4-6 deeming that one who kills another predeceased the victim when determining who inherits the victim's estate did not create a right of the wife's estate to inherit from the husband's estate. Keith v. Johnson, 211 Ga. App. 678 , 440 S.E.2d 230 (1993) (decided under former O.C.G.A. § 53-4-6).

Conviction for voluntary manslaughter. - Son's conviction for voluntary manslaughter of his father did not establish that he acted with malice so as to prevent his inheriting from his father's estate, nor was malice established by a prior decision finding the son ineligible to receive life insurance benefits because of the manslaughter conviction. Stephens v. Adkins, 226 Ga. App. 648 , 487 S.E.2d 440 (1997) (decided under former O.C.G.A. § 53-4-6).

Until judicial condemnation proceedings are finalized, property conveyed by the murderer passes good title because, by the clear and unambiguous provisions of its language, O.C.G.A. § 53-1-5(d) requires some form of judicial condemnation to divest a murderer of his or her interests from the murdered decedent's estate, either through a criminal proceeding, i.e., final judgment of conviction or a guilty plea, or through a civil proceeding establishing a felonious and intentional killing by clear and convincing evidence; upon finalization of either of the judicial condemnation proceedings provided for in § 53-1-5(d) , the murderer's interest from the decedent's estate is forfeited and that forfeiture then relates back to the moment of the murder, so as to authorize recovery from the murderer of any of that interest he or she previously dispersed. Levenson v. Word, 286 Ga. 114 , 686 S.E.2d 236 (2009).

Legal fees paid by spouse who killed other spouse. - In an estate administrator's conversion suit against a law firm, the trial court properly granted the law firm summary judgment with regard to the administrator attempting to recover $125,000 in legal fees the decedent's spouse had paid to the law firm as the law firm accepted the fees from the decedent's spouse in good faith since it was not determined until the spouse pled guilty to the homicide that the spouse had killed the decedent. Further, there was no evidence that the spouse did not have title to the money when the money was paid. Levenson v. Word, 294 Ga. App. 104 , 668 S.E.2d 763 (2008), aff'd, 286 Ga. 114 , 686 S.E.2d 236 (2009).

Court of Appeals did not err in affirming the trial court's order granting defense attorneys and the law firm summary judgment in an administrator's action alleging that the attorneys converted estate property when the attorneys accepted certain sums as payment for their services in representing a decedent's widow after the widow was indicted for the decedent's murder because O.C.G.A. § 53-1-5 did not place possession or an immediate right to possession of the estate property in the administrator at the time the widow dispersed and appellees received the funds in issue; when the widow dispersed the finds, the widow had qualified as executor of the decedent's estate and letters testamentary had been issued to the widow, the widow had not yet pled guilty to the murder charges, no final judgment of conviction had been entered in regard to the criminal indictment, and the widow's felonious and intentional killing of the decedent had not been established by clear and convincing evidence in any judicial proceeding. Levenson v. Word, 286 Ga. 114 , 686 S.E.2d 236 (2009).

2. Life Insurance Policies

Applicability of section to life insurance policies. - Ga. L. 1959, p. 299, § 1 suggests that it refers to heritable property owned by the decedent and properly a part of the decedent's estate. While an insured is the owner of a contract of insurance on the insured's own life, this is a different sort of ownership because the insured cannot, unless the insured elects to turn the policy in for the policy's cash surrender value, make the policy's proceeds available to the insured during the insured's lifetime. National Life & Accident Ins. Co. v. Thornton, 125 Ga. App. 589 , 188 S.E.2d 435 (1972) (decided under Ga. L. 1959, p. 299, § 1).

The legislative scheme under Ga. L. 1959, p. 299, § 1 is clear that unless the insured affirmatively indicates that the estate is intended as beneficiary, the policy proceeds go to the beneficiary as against the claims of creditors or personal representatives of the deceased. This is generally true even when no beneficiary is named in the policy, but a statute indicates for whose benefit the proceeds are to be used in such event. National Life & Accident Ins. Co. v. Thornton, 125 Ga. App. 589 , 188 S.E.2d 435 (1972) (decided under Ga. L. 1959, p. 299, § 1).

When insured could have changed beneficiary at any time, Ga. L. 1959, p. 299, § 1 does not prohibit the payment of proceeds from life insurance policies to insured's estate where insured killed the policies' beneficiary and then himself. Willis v. Frazier, 128 Ga. App. 748 , 197 S.E.2d 830 (1973) (decided under Ga. L. 1959, p. 299, § 1).

3. Vested Interest

Applicability of section to vested interest. - When wife already had a vested one-half undivided interest in the property with a remainder estate in the other one-half interest, subject to divestiture only if she predeceased the husband, the wife's interest was not forfeited even though she killed her husband. Moore v. Moore, 231 Ga. 232 , 201 S.E.2d 133 (1976) (decided under Ga. L. 1959, p. 299, § 1).

Entitlement of Heirs of Disinherited Heir

Meaning of "other heirs." - By the term "other heirs" as used in this section, the legislature meant other heirs of the deceased, whether the deceased died intestate or testate. McGhee v. Banks, 115 Ga. App. 155 , 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

If the person killed is intestate and the person killing is an heir at law without issue, Ga. L. 1959, p. 299, § 1 directs that the property the heir would have taken go to all the other heirs of the deceased entitled under the laws of descent and distribution. McGhee v. Banks, 115 Ga. App. 155 , 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

Heirs of disinherited heir may be proper heirs of decedent. - Legislature explicitly provided that persons capable of inheriting from the deceased under the laws of descent and distribution through a living heir who killed the deceased are to take the property the disinherited heir would have taken. McGhee v. Banks, 115 Ga. App. 155 , 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

Ga. L. 1959, p. 259, § 1 provides that when a legatee kills a testator, the property the legatee would have received under the will shall go to the heirs of the person killed, thereby excluding the heirs of the legatee from sharing in this property unless they be also heirs of the testator. McGhee v. Banks, 115 Ga. App. 155 , 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

If the person killed is testate, the statute directs that the property the person killing would have taken under the will go (1) if the testator named none of the testator's heirs as beneficiaries, to all the persons who would have been the testator's heirs at law under the laws of descent and distribution, excluding the person killing; or (2) if the testator named some of the testator's heirs at law as beneficiaries of the testator's will, to those named beneficiaries. McGhee v. Banks, 115 Ga. App. 155 , 154 S.E.2d 37 (1967) (decided under Ga. L. 1959, p. 299, § 1).

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2539, former Code 1873, § 2580, former Civil Code 1895, § 3475, former Civil Code 1910, §§ 3908, 4052, and 4053, former Code 1933, §§ 113-817 and 113-1013, and former O.C.G.A. §§ 53-2-105 and 53-4-50 are included in the annotations for this Code section.

Ademption is confined to specific legacies. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322 , 58 L. Ed. 467 (1913); Woodall v. First Nat'l Bank, 223 Ga. 688 , 157 S.E.2d 261 (1967).

Legacy is not a specific legacy, which will be adeemed when it does not bequeath a bond so labeled and sequestered as to be distinguished from another bond of a similar kind; it is a demonstrative legacy and does not fail if the subject matter is not in existence on the death of the testator. Young v. Young, 202 Ga. 694 , 44 S.E.2d 659 (1947).

When a will may reasonably be construed as showing an intention of the testator to bequeath to the six legatees something of the value of $1,000.00 each, and only three bonds remain, the will stating the $1,000.00 payments to be made from bonds, a fair and just execution of the will, as found by the trial court, would be to sell the three bonds and place the proceeds in the general assets and from that fund pay the six legatees $1,000.00 each. Young v. Young, 202 Ga. 694 , 44 S.E.2d 659 (1947).

Failure by the testator to particularize the $1,000.00 bonds bequeathed to stated children, forbid their being classified as specific legacies, and, consequently they do not fail but are payable as general legacies, $1,000.00 to each legatee, out of the general assets of the estate, including the proceeds from the sale of the three bonds on hand after the payment of debts, if any, and the expenses of administration. Young v. Young, 202 Ga. 694 , 44 S.E.2d 659 (1947).

Determination if transfer is an advance on inheritance. - Summary judgment, pursuant to O.C.G.A. § 9-11-56 , was reversed since a genuine issue of material fact remained as to whether a transfer of money to the decedent's child before the decedent died was an advancement on the child's inheritance, and whether the child breached the fiduciary duty as a result. Walters v. Stewart, 263 Ga. App. 475 , 588 S.E.2d 248 (2003).

In cases of intestacy, law favors equal distribution among intestate's heirs. There are only two ways by which the scheme of equality among the heirs may be upset. The first, of course, is by the making of a will on the part of the ancestor providing for a distribution of the ancestor's estate in a manner other than that set forth by law; and, the second is by a valid and binding contract executed between the ancestor and the heir, which clearly shows a meeting of the minds between them acknowledging on the part of the heir receipt in full for the heir's prospective share of the ancestor's estate. Such a contract when entered into is binding and enforceable. Cassedy v. Bland, 99 Ga. App. 34 , 107 S.E.2d 697 (1959) (decided under former Code 1933, § 113-1013).

Advancement determined by intent of parent at time of transaction. - Deed of gift by a father-in-law to a son-in-law, accepted by the latter, which contains a provision clearly indicating that it was the intention of the grantor that the property so conveyed was to be an advancement to the daughter, the wife of the grantee, is an advancement to the daughter under the terms of the statute, notwithstanding the daughter may have been ignorant, not only of the fact that the deed contained such a provision, but even of the existence of the deed altogether. Ireland v. Dyer, 133 Ga. 851 , 67 S.E. 195 , 26 L.R.A. (n.s.) 1050, 18 Ann. Cas. 544 (1910) (decided under former Code 1910, § 4052).

When testator, while acting as guardian for the father of the minor in whose behalf suit was instituted, had advanced to her ward, out of the funds inherited by him, a sum of money with which to buy an aeroplane, and during the interim between his arrival at majority and his death at age 25 there was no evidence of an inclination on his part to require his mother to account for the sum so advanced to him, auditor was authorized to find a ratification on his part, and, to that extent, to deny a recovery against the executor of the testator. Kytle v. Kytle, 180 Ga. 833 , 181 S.E. 81 (1935) (decided under former Code 1933, § 113-1013).

When money or property is transferred by a parent to a child, or for the child's benefit, the question whether the transfer is to be treated as an advancement depends upon the intention of the parent at the time of the transaction. Treadwell v. Everett, 185 Ga. 454 , 195 S.E. 762 (1938) (decided under former Code 1933, § 113-1013).

When money or property is transferred by a parent to a child, and is accepted, the question of whether the transfer is to be treated as an advancement depends upon the intention of the parent at the time of the transaction, without regard to concurrence on the part of the child. Berry v. Berry, 208 Ga. 285 , 66 S.E.2d 336 (1951) (decided under former Code 1933, § 113-1013).

Question of whether a transfer of funds between parent and child is to be treated as an advancement depends upon the intention of the parent at the time of the transaction. Smith v. Varner, 130 Ga. App. 484 , 203 S.E.2d 717 (1973) (decided under former Code 1933, § 113-1013).

Child met the child's burden of rebutting the presumption that disbursements to the child by the child's mother during the last two years of her life were advancements by presenting clear and satisfactory evidence that her intent was to make loans or investments. Tankesley v. Thompson, 220 Ga. App. 641 , 469 S.E.2d 853 (1996) (decided under former O.C.G.A. § 53-4-50 ).

Presumed advancement. - Conveyance of land by a father to an adult child, reciting a consideration of love and affection, is, in the absence of proof to the contrary, presumed to be an advancement. Bowen v. Holland, 184 Ga. 718 , 193 S.E. 233 (1937) (decided under former Code 1933, § 113-1013).

Gift of property by a father to an adult son, who is married and does not live under the parental roof, is presumed to be an advancement. Holliday v. Wingfield, 59 Ga. 206 (1877) (decided under former Code 1873, § 2579); Howard v. Howard, 101 Ga. 224 , 28 S.E. 648 (1897); Kaylor v. Kaylor, 199 Ga. 516 , 35 S.E.2d 1 (1945) (decided under former Civil Code 1895, § 3474);(decided under former Code 1933, § 113-1013).

Controverted declaration in writing, which was made after the death of the father by a child, that the child was "due," or owed, the child's deceased father a stated amount for stock and money, and which as an account would on its face be barred by the statute of limitations, would, if such admission be established as true, have probative value only as to the fact that the child had received such an amount from the father, and there being no other evidence as to the nature and character of the item and there being no other proven facts or circumstances such as would support a presumption in favor of an advancement, a finding in favor of an advancement would be unsupported by the evidence. Kaylor v. Kaylor, 199 Ga. 516 , 35 S.E.2d 1 (1945) (decided under former Code 1933, § 113-1013).

Method of proof of an advancement prescribed by statute is not exclusive; when there is no writing the question is for the jury on all the evidence presented. Bransford v. Crawford, 51 Ga. 20 (1874) (decided under former Code 1873, § 2580).

Endorsement on back of will by testator sufficient as memo. - Advancements are sufficiently proved by endorsements on the back of a will in the testator's handwriting made pursuant to a provision therefor in the will. Kramer v. Lyle, 197 F. 618 (N.D. Ga.), rev'd on other grounds, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322 , 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 4053).

Cited in Beall v. Blake, 16 Ga. 119 (1854); Weems v. Andrews, 22 Ga. 43 (1857); Clayton v. Akin, 38 Ga. 320 , 95 Am. Dec. 393 (1868); Sims v. Sims, 39 Ga. 108 , 99 Am. Dec. 450 (1869); Worrill v. Gill, 46 Ga. 482 (1872); Reed v. Reed, 68 Ga. 589 (1882); Hart v. Johnson, 81 Ga. 734 , 8 S.E. 73 (1888); Holliday v. Wingfield, 59 Ga. 206 (1897); Ireland v. Dyer, 133 Ga. 851 , 67 S.E. 195 , 26 L.R.A. (n.s.) 1050, 18 Ann. Cas. 544 (1910); Parker v. Parker, 147 Ga. 432 , 94 S.E. 543 (1917); Hobby v. Ford, 149 Ga. 176 , 99 S.E. 624 (1919); Elliott v. Johnson, 178 Ga. 384 , 173 S.E. 399 (1934); Beard v. Beard, 197 Ga. 487 , 29 S.E.2d 595 (1944); Harrison v. Barber, 200 Ga. 225 , 36 S.E.2d 662 (1946); Roberts v. Wilson, 200 Ga. 201 , 36 S.E.2d 758 (1946); In re Engram, 156 F. Supp. 342 (M.D. Ga. 1957); Fuller v. Fuller, 107 Ga. App. 429 , 130 S.E.2d 520 (1963); Thompson v. Mathews, 226 Ga. 347 , 174 S.E.2d 916 (1970); Chandler v. Owen, 233 Ga. 25 , 209 S.E.2d 618 (1974); Howard v. Estate of Howard, 249 Ga. App. 287 , 548 S.E.2d 48 (2001); Cubbedge v. Cubbedge, 287 Ga. App. 149 , 650 S.E.2d 805 (2007).

Ademption Rule

Meaning of ademption. - Ademption of a specific legacy is the extinction or withdrawal of it, in consequence of some act of the testator equivalent to its revocation, or clearly indicative of an intention to revoke. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322 , 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).

Ademption is effected by the extinction of the thing or fund bequeathed, or by disposition of it subsequent to the will from which an intention that the legacy should fail is presumed. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322 , 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).

Term "ademption" is sometimes used as synonymous with satisfaction, but such use is inaccurate, as ademption operates independently of intention in case the specific thing given is, at the testator's death, no longer owned by testator. Kramer v. Kramer, 201 F. 248 (5th Cir. 1912), cert. denied, 231 U.S. 753, 34 S. Ct. 322 , 58 L. Ed. 467 (1913) (decided under former Civil Code 1910, § 3908).

Ademption generally. - When a testator conveys to another specific property devised or bequeathed, and does not afterward become possessed of the property, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result cannot be obviated by extrinsic evidence tending to show that the testator did not intend it. Thompson v. Long, 202 Ga. 718 , 44 S.E.2d 651 (1947) (decided under former Code 1933, § 113-817).

Standard for defining a "conveyance" is whether there has occurred a change in the testator's ownership sufficiently radical to manifest, as a matter of law, the testator's intention to revoke the specific devise. The term "conveyance" includes a single transaction by which a testator sells the testator's fee simple title to real estate in return for a security title to the real estate sold. Peacock v. Owens, 244 Ga. 203 , 259 S.E.2d 458 (1979) (decided under former Code 1933, § 113-817).

Ademption arises upon the conveyance of the specific property covered by the legacy, and rests upon a rule of law independent of any supposed actual intent of the testator; and in the absence of any facts which would bring the case within the exceptions set forth in statute, and in the absence of any provision in the will in contemplation of such a contingency, a trial court properly held that a devise had been wholly adeemed by reason of the conveyance of the realty involved, and since the testator died intestate as to this devise, that the proceeds thereof passed into the residuum of the estate. Thompson v. Long, 202 Ga. 718 , 44 S.E.2d 651 (1947) (decided under former Code 1933, § 113-817).

Devise adeemed. - When a testator conveys to another specific property devised or bequeathed, and does not afterwards become possessed of the property, and the will contains no provision for such contingency, the devise or legacy is adeemed, and such legal result cannot be obviated by extrinsic evidence tending to show that the testator did not intend it. Moncrief v. Shuman, 169 Ga. 217 , 150 S.E. 98 (1929) (decided under former Civil Code 1910, § 3908).

When a testator conveys to a third party specific property devised and the will contains no provision for such a contingency, there can be no inquiry into a testator's intention in adeeming specifically bequeathed property. Woodall v. First Nat'l Bank, 223 Ga. 688 , 157 S.E.2d 261 (1967) (decided under former Code 1933, § 113-817).

Devise held to be adeemed. - When wife devised one-half interest in real estate to husband by specific devise, but did not devise the proceeds of its sale to husband, the specific devise was adeemed by alienation when testator sold the fee simple title in return for a down payment, note, and security title. Powell v. Thorsen, 253 Ga. 572 , 322 S.E.2d 261 (1984) (decided under former O.C.G.A. § 53-2-105).

Exceptions

Exceptions to ademption rule. - There are four exceptions to the rule that ademption occurs when a testator conveys to another the specific property bequeathed, those exceptions are: (1) where the testator afterwards becomes possessed of the same property; (2) where the attempt to convey fails; (3) where the testator exchanges the property for other of like character; and (4) where the testator merely changes the investment of a fund bequeathed. Lang v. Vaughn, 137 Ga. 671 , 74 S.E. 270 , 40 L.R.A. (n.s.) 542, 1913B Ann. Cas. 52 (1912) (decided under former Code 1933, § 113-817) Woodall v. First Nat'l Bank, 223 Ga. 688 , 157 S.E.2d 261 (1967);(decided under former Code 1933, § 113-817).

A specific devise is adeemed when, after the execution of the will, the testator "conveys" to another the specific property devised unless one of the following four exceptions applies: reacquisition by the testator; failure of the conveyance; receipt of like property in exchange for the devised property and mere change in the investment of a fund. Peacock v. Owens, 244 Ga. 203 , 259 S.E.2d 458 (1979) (decided under former Code 1933, § 113-817).

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, §§ 2246, 2483, 2485, and 2486, former Code 1882, §§ 2246, 2483, 2485, and 2486, former Civil Code 1895, §§ 3081, 3353, 3357, and 3358, former Civil Code 1910, §§ 3657, 3929, 3933, and 3934, former Code 1933, §§ 113-901, 113-907, and 113-908, and former O.C.G.A. §§ 53-4-8, 53-4-9, and 53-4-10 are included in the annotations for this Code section.

Construing former Civil Code 1895, §§ 3081, 3353, and 3357 together, the statutes give the administrator primary right to use and recover the estate, the heir having such right only in case of the heir's consent or where there is none, therefore, since the plaintiff in ejectment must show right to recover, plaintiffs in this case must show either lack of administrator or the administrator's consent for them to sue. Greenfield v. McIntyre, 112 Ga. 691 , 38 S.E. 44 (1901) (decided under former Civil Code 1895, §§ 3081 and 3353) Hall v. Ewing, 149 Ga. 693 , 101 S.E. 807 (1920) See Collins v. Henry, 155 Ga. 886 , 118 S.E. 729 (1923) (decided under former Civil Code 1910, §§ 3657 and 3929);(decided under former Civil Code 1910, §§ 3657 and 3929).

Effect of section on fee-simple incidents. - Statute makes no changes in the definition or the incidents of an absolute or fee-simple estate. Ewing v. Shropshire, 80 Ga. 374 , 7 S.E. 554 (1888) (decided under former Code 1882, §§ 2246 and 2483).

Application of amendment to statute. - When claimants asserted interests as heirs of the debtor's late, former husband in stock, amendment of O.C.G.A. § 53-2-7 in 2000 applied to the estate of the husband who died prior to 2000 because there were no vested rights of title, years support, succession or inheritance in the claimants that were impaired by the amendment. Barker v. Whittington (In re Barker), Bankr. (Bankr. N.D. Ga. Oct. 26, 2010).

Disinterested person as administrator. - Person entitled to an estate may select a disinterested person as administrator. Roe v. Pitts, 82 Ga. App. 770 , 62 S.E.2d 387 (1950) (decided under former Code 1933, § 113-901).

Until an administrator is appointed, distribution of the estate's assets is improper. Epps v. Epps, 141 Ga. App. 659 , 234 S.E.2d 140 (1977) (decided under former Code 1933, § 113-901).

Administrator stands as the representative of the estate as against persons preferring claims against the estate and its interests, for and on account of heirs at law and all other creditors. Davenport v. Idlett, 234 Ga. 864 , 218 S.E.2d 577 (1975) (decided under former Code 1933, § 113-901).

Appointment of administrator. - Subsequently-enacted legislation which stated that if an administrator was not appointed within five years after the death of an intestate, then the estate property would be vested in decedent's heirs and did not mention anything about divestment of the estate property did not apply to prevent the probate court from granting the estate administrator's petition to distribute decedent's property even though the estate administrator was not appointed for nearly four decades after the death of the decedent as the law in effect at the time the estate administrator was appointed had no time limit for the appointment and the subsequently-enacted legislation did not apply to prohibit the estate administrator from being appointed and distributing the property. Williams v. Williams, 259 Ga. App. 888 , 578 S.E.2d 582 (2003).

An executor of an estate is an indispensable party in a suit against the estate. Estate of Thurman v. Dodaro, 169 Ga. App. 531 , 313 S.E.2d 722 (1984) (decided under former O.C.G.A. § 53-4-8).

Heir lacked standing to sue to recover estate assets. - Though a decedent's child argued in a brief that the child had presented evidence of collusion, embezzlement, fraud, elder abuse, and the administrator's unwillingness to pursue certain claims, as the child failed to support these arguments with citations to the record as required by Ga. Ct. App. R. 25(c)(2)(i), the trial court's ruling that under former O.C.G.A. § 53-4-8(b), the child lacked standing to sue a sibling for allegedly misappropriating estate assets was affirmed. Peden v. Peden, 293 Ga. App. 483 , 667 S.E.2d 650 (2008) (decided under former O.C.G.A. § 53-4-8).

Standing to pursue claim for undelivered stock. - Heirs of a debtor's late, former husband's estate lacked standing to assert a claim for undelivered stock because, pursuant to the 2000 amendment to O.C.G.A. § 53-2-7 , claims for personalty had to be brought by an administrator unless the heirs had received an order from the appropriate court that no administration was necessary. Barker v. Whittington (In re Barker), Bankr. (Bankr. N.D. Ga. Oct. 26, 2010).

Executor's power to distribute assets. - Probate court's approval of the estate administrator's proposed sale of property was not improper as it did not impair the objecting heirs' vested interest in property; rather, the property vested in the objecting heirs at the time of decedent's death, subject to the estate administrator's right to distribute it, and, thus, the probate court was authorized to allow the estate administrator to distribute it. Williams v. Williams, 259 Ga. App. 888 , 578 S.E.2d 582 (2003) (decided under former O.C.G.A. § 53-4-8).

Title to property remains in the executor until the executor assents to the devise. After such assent is given the land is no longer a part of the estate. State Hwy. Dep't v. Stewart, 104 Ga. App. 178 , 121 S.E.2d 278 (1961) (decided under former Code 1933, § 113-907).

Temporary administrator is custodian of the estate, and the administrator's powers are strictly limited by statute; the administrator cannot sue for realty. Arnold v. Freeman, 181 Ga. 654 , 183 S.E. 811 (1935) (decided under former Code 1933, § 113-907).

Temporary administrator takes no interest in land of the estate, and cannot bring an action for its recovery or consent to such an action being brought. Bowman v. Bowman, 206 Ga. 262 , 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-907).

Administrator can eject an heir at law. Jones v. Wilson, 227 Ga. 360 , 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

Probate court jurisdiction. - Probate court does not have the jurisdiction to adjudicate conflicting claims of title to property; thus, when decedent's widow asserted an ownership interest in property sought by the executor of the estate, an order of the probate court giving possession of such property to the executor was void, and the widow could not be found in contempt for noncompliance with the order. In re Estate of Adamson, 215 Ga. App. 613 , 451 S.E.2d 501 (1994) (decided under former O.C.G.A. § 53-4-10 ).

Cited in Goodtitle v. Roe, 20 Ga. 135 (1856); Davis v. Howard, 56 Ga. 430 (1876); Keaton v. Tift, 56 Ga. 446 (1876); Knapp v. Harris, 60 Ga. 398 (1878); Miller v. Speight, 61 Ga. 460 (1878); Edwards v. Kilpatrick, 70 Ga. 328 (1883); Head v. Driver, 79 Ga. 179 , 3 S.E. 621 (1887); Jones v. Lamar, 34 F. 454 (C.C.S.D. Ga. 1888); Gibson v. Carreker, 82 Ga. 46 , 9 S.E. 124 (1889); Ellsworth v. McCoy, 95 Ga. 44 , 22 S.E. 39 (1894); Mayor of Chauncey v. Brown, 99 Ga. 766 , 26 S.E. 763 (1896); Burke v. Huff, 103 Ga. 598 , 30 S.E. 546 (1898); Juhan v. Juhan, 104 Ga. 253 , 30 S.E. 779 (1898); Dixon v. Rodgers, 110 Ga. 509 , 35 S.E. 781 (1900); Greenfield v. McIntyre, 112 Ga. 691 , 38 S.E. 44 (1901); Doris v. Story, 122 Ga. 611 , 50 S.E. 348 (1905); Queen Ins. Co. v. Peters, 10 Ga. App. 289 , 73 S.E. 536 (1912); Gornto v. Wilson, 141 Ga. 597 , 81 S.E. 860 (1914); Strickland v. Fender, 142 Ga. 132 , 82 S.E. 561 (1914); Harris v. Black, 143 Ga. 497 , 85 S.E. 742 (1915); Purvis v. Askew, 148 Ga. 79 , 95 S.E. 964 (1918); Wimberly v. Ross, 152 Ga. 258 , 109 S.E. 500 (1921); Weldon v. Weldon, 152 Ga. 550 , 110 S.E. 273 (1922); Brown v. Glover, 156 Ga. 640 , 119 S.E. 607 (1923); Reed v. Norman, 157 Ga. 183 , 121 S.E. 310 (1924); Warren v. Federal Land Bank, 157 Ga. 464 , 122 S.E. 40 , 33 A.L.R. 45 (1924); Stone v. Edwards, 32 Ga. App. 479 , 124 S.E. 54 (1924); Bryan v. Bryan, 170 Ga. 472 , 153 S.E. 188 (1930); Pullen v. Johnson, 173 Ga. 581 , 160 S.E. 785 (1931); Smith v. Fischer, 52 Ga. App. 598 , 184 S.E. 406 (1936); Ewing v. Tanner, 184 Ga. 773 , 193 S.E. 243 (1937); Dorsey v. Dorsey, 189 Ga. 662 , 7 S.E.2d 273 (1940); Mize v. Harber, 189 Ga. 737 , 8 S.E.2d 1 (1940); Zeagler v. Zeagler, 190 Ga. 220 , 9 S.E.2d 263 (1940); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294 , 12 S.E.2d 53 (1940); Wilcox v. Thomas, 191 Ga. 319 , 12 S.E.2d 343 (1940); Bacon v. Federal Land Bank, 109 F.2d 285 (5th Cir. 1940); Hines v. Farkas, 109 F.2d 289 (5th Cir. 1940); Hadaway v. Hadaway, 192 Ga. 265 , 14 S.E.2d 874 (1941); Roberts v. McBrayer, 194 Ga. 606 , 22 S.E.2d 165 (1942); Robinson v. Murray, 198 Ga. 690 , 32 S.E.2d 496 (1944); Crews v. Russell, 199 Ga. 732 , 35 S.E.2d 444 (1945); Pope v. Beasley, 200 Ga. 656 , 38 S.E.2d 300 (1946); Kelley v. Cromer, 201 Ga. 375 , 39 S.E.2d 880 (1946); Higdon v. Dixon, 203 Ga. 67 , 45 S.E.2d 423 (1947); Hamrick v. Hamrick, 206 Ga. 564 , 5 8 S.E.2d 1 45 (1950); Physioc v. Beavers, 210 Ga. 246 , 78 S.E.2d 795 (1953); Smith v. Smith, 210 Ga. 354 , 80 S.E.2d 196 (1954); Tillman v. Byrd, 211 Ga. 918 , 89 S.E.2d 479 (1955); Turner v. Kelley, 212 Ga. 175 , 91 S.E.2d 356 (1956); Myers v. Grant, 212 Ga. 677 , 95 S.E.2d 9 (1956); In re Engram, 156 F. Supp. 342 (M.D. Ga. 1957); Warren v. Warren, 104 Ga. App. 184 , 121 S.E.2d 343 (1961); Bell v. Liberty Mut. Ins. Co., 108 Ga. App. 173 , 132 S.E.2d 538 (1963); Dukes v. Cairo Banking Co., 220 Ga. 507 , 140 S.E.2d 182 (1964); Lanier v. Dyer, 222 Ga. 30 , 148 S.E.2d 432 (1966); Shelnutt v. Bank of Hancock County, 223 Ga. 74 , 153 S.E.2d 442 (1967); Jones v. Congdon, 223 Ga. 284 , 154 S.E.2d 612 (1967); Outlaw v. Outlaw, 121 Ga. App. 284 , 173 S.E.2d 459 (1970); Butler v. Hicks, 229 Ga. 72 , 189 S.E.2d 416 (1972); Young v. Bozeman, 229 Ga. 195 , 190 S.E.2d 523 (1972); Ireland v. Matthews, 129 Ga. App. 592 , 200 S.E.2d 318 (1973); DeLong v. DeLong, 134 Ga. App. 635 , 215 S.E.2d 531 (1975); Gaskins v. Vickery, 234 Ga. 833 , 218 S.E.2d 617 (1975); Allan v. Allan, 236 Ga. 199 , 223 S.E.2d 445 (1976); Epps v. Epps, 141 Ga. App. 659 , 234 S.E.2d 140 (1977); Freeman v. Saxton, 240 Ga. 309 , 240 S.E.2d 708 (1977); Davison v. Strickland, 145 Ga. App. 420 , 243 S.E.2d 705 (1978); Deller v. Smith, 250 Ga. 157 , 296 S.E.2d 49 (1982); Tarbutton v. All That Tract or Parcel of Land Known as Carter Place, 641 F. Supp. 521 (M.D. Ga. 1986); In re Estate of Adamson, 215 Ga. App. 613 , 451 S.E.2d 501 (1994).

Vesting and Recovery of Real Property

When the owner of real property dies, title vests immediately in the owner's heirs at law, "subject to be administered by the legal representative, if there is one, for the payment of debts, or the purpose of distribution . . ." Evans v. Little, 246 Ga. 219 , 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-901).

Realty descends directly to the heirs at law, subject to administration by the legal representative, if there be one, for the payment of debts and the purpose of distribution; if there be a legal representative, the right to recover is in the representative; if there be none, the heirs may sue in the heirs' own name, and, if there be no administrator, the heirs may be sued to cancel a deed on the ground of fraud in the deed's procurement. Greenwood v. Starr, 174 Ga. 503 , 163 S.E. 500 (1932) (decided under former Civil Code 1910, §§ 3657, 3929); Morrison v. Stewart, 243 Ga. 456 , 254 S.E.2d 840 (1979);(decided under former Code 1933, § 113-901).

Administrator selling real estate must comply with former O.C.G.A. § 53-8-23. - Upon the death of the realty owner intestate, title vests directly in the heirs, subject to administration for payment of debts and distribution. Administrators can only sell real estate for these purposes after complying with former O.C.G.A. § 53-8-23, receiving leave to sell from the probate court, and proper advertisement. Horn v. Wright, 157 Ga. App. 408 , 278 S.E.2d 66 (1981) (decided under former O.C.G.A. § 53-4-8).

Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by former O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436 , 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-4-8).

Title to realty is immediately vested in the heirs of an intestate upon his or her death. However, if there be a legal representative, the right to recover for the benefit of the heirs is in such representative. If there be no representative, the heirs may sue in their own names to clear title to land. City of Griffin v. McKneely, 101 Ga. App. 811 , 115 S.E.2d 463 (1960) (decided under former Code 1933, § 113-901).

Realty descends directly to the heirs, subject to be administered by the legal representative for the payment of debts of the estate, and the purpose of distribution only. Davie v. McDaniel, 47 Ga. 195 (1872) (decided under former Code 1868, §§ 2220 and 2447); Jones v. Lamar, 34 F. 454 (C.C.S.D. Ga. 1888); 149 U.S. 777, 13 S. Ct. 1048 , 37 L. Ed. 958 (1892), appeal dismissed,(decided under former Code 1887, §§ 2246 and 2483).

On the death of the owner, the title to land vests immediately in the owner's heirs at law, and, on the appointment of an administrator, the right to the possession of the whole estate is in the administrator; but, insofar as real estate is concerned, this is a qualified right solely for the purpose of paying debts and for distribution, when necessary. Smith v. Fischer, 52 Ga. App. 598 , 184 S.E. 406 (1936) (decided under former Code 1933, § 113-901).

After the grantor in a security deed had died intestate before the date of the sale, the equity of redemption descended by inheritance to the sole heir at law, with the same right to affirm or disaffirm an unlawful sale thereafter made which the grantor personally would have had if the grantor had not died. Delray, Inc. v. Reddick, 194 Ga. 676 , 22 S.E.2d 599 (1942) (decided under former Code 1933, § 113-901).

When an administrator is granted leave to sell the land of the estate for the purpose of paying debts and distribution, the administrator may collect rents accruing afterwards, and the administrator and the administrator's sureties may be held liable therefor on the administrator's bond. Whether the same would be true as to rents accruing after the intestate's death, but before the order granting leave to sell, it does not appear that rents for any such period would be involved. Jones v. Wilson, 195 Ga. 310 , 24 S.E.2d 34 (1943) (decided under former Code 1933, § 113-901).

Petition by the widow and sole heir at law of a named person who died intestate with no administration on his estate, alleging that before her husband's death, he had purchased a tract of land, paid the purchase money, and entered into possession of the land, and that since his death other claimants had entered into possession thereof, where the plaintiff merely sought to recover the land with mesne profits, and the suit was filed in the county where the land lay, stated a cause of action. Strickland v. Jenkins, 198 Ga. 15 , 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-901).

Petition, filed by the widow and sole heir at law of a landowner, stating that he died intestate and that there was no administration on his estate, presented a case wherein whatever right or title he might have had descended to her, with the right to sue therefor in her own name. Strickland v. Jenkins, 198 Ga. 15 , 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-901).

Upon the death of the owner of any estate in realty, the title vests immediately in the owner's heirs at law and hence the plaintiffs were entitled to the immediate possession of the deceased's property upon the owner's death intestate. Chalker v. Beasley, 72 Ga. App. 652 , 34 S.E.2d 658 (1945) (decided under former Code 1933, § 113-901).

Upon the death of the owner of any estate in realty, which estate survives the descendent, title vests immediately in the descendent's heirs at law, subject to administration by the legal representative, if there be one, and the right of recovery is in the legal representative, if one; if none, the heirs may sue in the heirs' own name. Slade v. Barber, 200 Ga. 405 , 37 S.E.2d 143 (1946) (decided under former Code 1933, § 113-901).

When the father of the plaintiff died intestate, holding possession of lands under a bond for title with a part of the purchase price paid, the owner had a beneficial interest or equitable estate therein which descended to the owner's heirs at law, and the plaintiff as the sole heir at law could bring an equitable action on the bond for title. Gay v. Radford, 207 Ga. 38 , 59 S.E.2d 915 (1950) (decided under former Code 1933, § 113-901).

When one owning real estate dies, the title to the real estate passes to the heirs, and it is not the duty of the administrator, as such, to collect rents accruing after the death of the intestate; and if the administrator does so, it is not in the administrator's capacity as administrator, and the administrator is not liable to the heirs for the amount of the rents, as administrator, nor is the surety on the administrator's bond as administrator liable. Ray v. Dooley, 208 Ga. 811 , 69 S.E.2d 766 (1952) (decided under former Code 1933, § 113-901).

Upon the death of a husband intestate, leaving children and descendants of deceased children, title to realty owned by the husband vests in such children. Kenner v. Kenner, 214 Ga. 381 , 104 S.E.2d 896 (1958) (decided under former Code 1933, § 113-901); Keen v. Thomas, 214 Ga. 362 , 104 S.E.2d 903 (1958);(decided under former Code 1933, § 113-901).

Since upon the death of the owner of realty, which estate survives the owner, the title vests immediately in the owner's heirs at law, subject to the payment of debts, where the heirs make a settlement of the estate without an administrator, they should make conveyances pursuant to the settlement in order to divest themselves of the legal title of the intestate's estate. Clark v. Perrin, 224 Ga. 307 , 161 S.E.2d 874 (1968) (decided under former Code 1933, § 113-901).

When an examination of the contested will discloses no manifest intention of the testator which would be contrary to a vesting of the testator's great-great niece's interest at the time of the testator's death; and since her interest was vested in both the corpus and income of the trust estate, this interest was vested immediately in her husband upon her death; and upon his death, his interest passed by will to his three children who consequently have a vested interest in the corpus and income of the trust. Wood v. Roberts, 244 Ga. 507 , 260 S.E.2d 890 (1979) (decided under former Code 1933, § 113-901).

Administrator holds the estate for the purpose of paying debts and distribution. Roe v. Pitts, 82 Ga. App. 770 , 62 S.E.2d 387 (1950) (decided under former Code 1933, § 113-901).

Heirs take real property subject to preexisting burdens. - Heir at law inherits land subject to any burden or duty that existed with respect to it against the intestate, or that may later arise against the administrator, when an administrator is appointed. Veal v. Veal, 192 Ga. 503 , 15 S.E.2d 725 (1941) (decided under former Code 1933, § 113-901).

Administrator has a qualified right to lands in the possession of heirs at law to pay debts and to make legal distribution. Smith v. Fischer, 52 Ga. App. 598 , 184 S.E. 406 (1936) (decided under former Code 1933, § 113-901).

Statute establishes the threshold requirement that an administrator may exercise powers as administrator of real property only when it is necessary to pay outstanding debts of the estate or to distribute the estate among the heirs. Evans v. Little, 246 Ga. 219 , 271 S.E.2d 138 (1980) (decided under former Code 1933, § 113-901).

Administrator's right to maintain action. - As against one not an heir, an administrator may maintain an action for the recovery of land belonging to the estate of one's intestate without showing a necessity to administer the land for the purpose of paying debts. Nixon v. Nixon, 192 Ga. 629 , 15 S.E.2d 883 (1941) (decided under former Code 1933, § 113-901).

Administrator cannot recover land from widow by merely proving title in husband at his death. Green v. Underwood, 108 Ga. 354 , 33 S.E. 1009 (1899) (decided under former Civil Code 1895, §§ 3081, 3353).

Procedure for recovery of land by heirs at law. - When there was an administration of the estate of the defendant's grantor, the administrator could have sued to recover land for the benefit of the heir at law, on alleged reversion by the terms of the grantor's conveyance; and the right of action was not limited to their heir at law. Atlantic Coast Line R.R. v. Sweat, 177 Ga. 698 , 171 S.E. 123 (1933) (decided under former Code 1933, § 113-901).

Before heirs at law of an intestate can recover land, the heirs must allege and prove that there is no administration upon the heirs' estate, or, if there is an administrator, that the administrator has consented to their bringing the suit. Bowman v. Bowman, 206 Ga. 262 , 56 S.E.2d 497 (1949), later appeal, 207 Ga. 226 , 60 S.E.2d 242 (1950) (decided under former Code 1933, § 113-901).

When the administrator makes a collusive conveyance for the purpose of defrauding those interested in the estate and obtaining a benefit to the administrator, and refuses to give consent for the heirs to sue, they may bring an equitable action against the administrator and the persons charged with being in collusion with the administrator, for the purpose of protecting their rights. Bowman v. Bowman, 206 Ga. 262 , 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-901).

While an heir may bring an action to recover property of heir's intestate where there is no administrator, or where the administrator consents to the action, the law plainly gives the administrator the right to recover property held adversely to the estate of the intestate. Andrews v. Walden, 208 Ga. 340 , 66 S.E.2d 801 (1951) (decided under former Code 1933, § 113-901).

An heir at law seeking to recover in one's own name all or a part of the estate of a decedent must allege and prove that there was no administration of the estate in this state, or that the administrator was discharged before suit, or that the administrator had consented to the suit. Crawley v. Selby, 208 Ga. 530 , 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-901).

Temporary administrator takes no interest in land of the estate, and cannot bring an action for its recovery or consent to such an action being brought. Bowman v. Bowman, 206 Ga. 262 , 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-901).

Courts favor disposition in kind. - As real estate descends to the heirs in this state, it would seem to be the policy of the courts to favor the heirs by a division of the lands in kind, and they will not be sold, unless it be necessary to pay debts or to have a distribution. McCook v. Pond, 72 Ga. 150 (1883) (decided under former Code 1882, §§ 2246, 2483).

Vesting and Recovery of Personal Property

Administration according to law of domicile. - All personalty of a deceased person passes and is administered according to the law of the deceased's domicile. Fenn v. Castelanna, 196 Ga. 22 , 25 S.E.2d 796 (1943) (decided under former Code 1933, § 113-901).

Distribution according to law of jus domicilii. - It is a part of the law prevailing in Georgia that personal property should be distributed according to the jus domicilii. Squire v. Vazquez, 52 Ga. App. 215 , 183 S.E. 127 (1935) (decided under former Code 1933, § 113-901).

If the owner of personal property dies, it is not necessarily the law of the country in which the property is or in which the owner thereof dies, but the law of the country or state of the domicile of the deceased that will regulate the disposition, transmission, or succession of such property. Squire v. Vazquez, 52 Ga. App. 215 , 183 S.E. 127 (1935) (decided under former Code 1933, § 113-901).

Title to personal property vests in personal representative. - Title to personal property, including choses in action, upon the death of the owner, passes to the owner's personal representative, and not to the owner's heirs at law. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640 , 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-901).

Upon the death of a person intestate, choses in action in the deceased's favor pass to the deceased's administrator; and the deceased's heirs at law can take no more than an equitable interest therein, except through the intermediation of the administrator. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640 , 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-901).

Action to recover personal property must be instituted by personal representative. - When the beneficiary of a war risk insurance certificate (under the World War Veterans' Act of 1924, § 303 as amended, see now 38 U.S.C. § 750), survives the insured but dies before receiving all of the installments which were payable and applicable, the estate of the insured is wholly substituted as the payee, and all of such payments become assets of the estate of the insured upon the instant of the insured's death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of the insured's residence; such heirs to be determined as of the date of the insured's death, and not as of the date of the death of the beneficiary. White v. Roper, 176 Ga. 180 , 167 S.E. 177 (1932) (decided under former Code 1933, § 113-901).

Suit cannot be maintained by the distributees of an estate to recover personal property belonging to such estate, except through the legal representative in the absence of special circumstances authorizing such a proceeding in equity. Jones v. Gann, 184 Ga. 722 , 193 S.E. 174 (1937) (decided under former Code 1933, § 113-901).

Title to personal property, such as promissory notes, owned by one who dies intestate vests in the intestate's administrator for the benefit of heirs and creditors. McMullen v. Carlton, 192 Ga. 282 , 14 S.E.2d 719 (1941) (decided under former Code 1933, §§ 113-901 and 113-907).

When insurer agreed to pay to the insured in the event of the insured's becoming disabled from sickness and confined to the insured's bed weekly benefits and the insured became disabled from sickness, and the company refused to pay some of the weekly benefits, any right to recover the weekly benefits was in the insured until the insured's death and if any right to recover them survived the insured's death, it would be in the insured's administrator if the insured died intestate. Bailey v. Bankers Health & Life Ins. Co., 69 Ga. App. 71 , 24 S.E.2d 740 (1943) (decided under former Code 1933, §§ 113-901 and 113-907).

Heirs, although all of the heirs are sui juris and of full age, cannot maintain an action at law upon a chose in action in favor of the intestate, notwithstanding there is no administrator and all debts due by the intestate have been paid. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640 , 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-901).

When under a will an executor assents to a devise or legacy of a promissory note, the property is no longer part of the estate since by assenting the executor loses all control and interest in the property and the right to sue on the note passes to the devisee or legatee. Hemphill v. Simmons, 120 Ga. App. 823 , 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-901).

Administrator, not the heir, should bring suit on a promissory note unless it is shown that the note was endorsed or assigned by the administrator or was set apart to the heir by adjudication of the ordinary (now probate judge). Hemphill v. Simmons, 120 Ga. App. 823 , 172 S.E.2d 178 (1969) (decided under former Code 1933, § 113-901).

Right to Possession

1. Real Property

Title to land vests in heirs subject to right of administrator to recover. - On the death of the owner, the title to land vests immediately in the owner's heirs at law, and, on the appointment of an administrator, the right to the possession of the whole estate is in the administrator; but, insofar as real estate is concerned, this is a qualified right solely for the purpose of paying debts and for distribution when necessary. Smith v. Fischer, 52 Ga. App. 598 , 184 S.E. 406 (1936) (decided under former Code 1933, § 113-907).

Administrator, who was also estate creditor, still required to publish notice of sale. - Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436 , 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-4-9).

Right to Recovery

1. Recovery by Administrator

Administrator has exclusive right to bring actions on behalf of estate. - In order for a widow to be the personal representative of her deceased husband, who died intestate leaving no lineal descendants, in the sense that she may sue as the representative of the estate to cancel a deed, it is essential that at the time the suit is instituted there be no outstanding debts against the estate. Hardin v. Council, 200 Ga. 822 , 38 S.E.2d 549 (1946) (decided under former Code 1933, § 113-907).

An estate is not a legal entity which can be a party plaintiff to legal proceedings because the exclusive right to bring actions on behalf of an estate (including attachment and garnishment proceedings) is in the legal representative, executor, or administrator, of the estate. Orange County Trust Co. v. Takowsky, 119 Ga. App. 366 , 166 S.E.2d 913 (1969) (decided under former Code 1933, § 113-907).

Administrator need not allege necessity to recover against one not an heir. - As against one not an heir, an administrator may maintain an action for the recovery of land belonging to the estate of one's intestate without showing a necessity to administer the land for the purpose of paying debts. Morris v. Mobley, 171 Ga. 224 , 155 S.E. 8 (1930) (decided under former Civil Code 1910, § 3933); Nixon v. Nixon, 192 Ga. 629 , 15 S.E.2d 883 (1941);(decided under former Code 1933, § 113-907).

When a suit is brought by an administrator of a decedent against a stranger for the recovery of land belonging to intestate's estate, no proof is necessary, except that the property belonged to the administrator's intestate, and that it is being withheld from the administrator by the defendant. Paris v. Treadaway, 173 Ga. 639 , 160 S.E. 797 (1931) (decided under former Civil Code 1910, § 3933).

Administrator has exclusive right to sue for recovery of personal property. - Suit in equity cannot be maintained, at the instance of distributees of an estate, to recover personal property thereof, except through the legal representative of the estate, unless there be collusion, insolvency, unwillingness to collect the assets, or some other like special circumstances. Holt v. Industrial Life & Health Ins. Co., 182 Ga. 563 , 186 S.E. 193 (1936) (decided under former Code 1933, § 113-907).

Suit cannot be maintained by the distributees of an estate to recover personal property belonging to such estate, except through the legal representative, in the absence of special circumstances authorizing such a proceeding in equity. Jones v. Gann, 184 Ga. 722 , 193 S.E. 174 (1937) (decided under former Code 1933, § 113-907).

Upon the death of a person intestate, choses in action in the deceased's favor pass to the administrator; and the deceased's heirs at law can take no more than an equitable interest therein, except through the intermediation of the administrator. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640 , 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-907).

Heirs, although all of them are sui juris and of full age, cannot maintain an action at law upon a chose in action in favor of the intestate, notwithstanding there is no administrator and all debts due by the intestate have been paid. Life & Cas. Ins. Co. v. Marks, 72 Ga. App. 640 , 34 S.E.2d 633 (1945) (decided under former Code 1933, § 113-907).

If personal property is held adversely to an estate which has no legal representative, the only legal way to recover it is to have an administrator appointed and have the administrator bring suit in the administrator's name as such representative. Epps v. Epps, 141 Ga. App. 659 , 234 S.E.2d 140 (1977) (decided under former Code 1933, § 113-907).

2. Recovery by Heirs at Law

Right of heirs to sue in their own names generally. - Literal application of former Code 1933, §§ 113-907 and 113-1512 would lead to the inevitable conclusion that the heirs would under no circumstances be allowed to sue in their own name when there was an administrator unless the administrator consented thereto. But the Supreme Court has broadened the meaning of former Code 1933, § 113-1521 to include a situation where the administrator refuses, and especially where this refusal is fraudulent or collusive, and in such a situation this right of action in the heir exists in the same manner and to the same extent only as it does in the administrator, thus if it exists in the same manner and to the same extent, then it should be given the same effect. Estes v. Collum, 91 Ga. App. 186 , 85 S.E.2d 561 (1954) (decided under former Code 1933, § 113-907).

When there is no administration, the heirs at law can sue to recover realty of an estate in their own right. Arnold v. Freeman, 181 Ga. 654 , 183 S.E. 811 (1935) (decided under former Code 1933, § 113-907).

Right of heir to recover requires proof of lack of administration or consent of administrator. - If there is no administrator the heirs may sue for realty; or the administrator may consent to a suit for realty by the heirs, or may assign a claim to a creditor or distributee, if the administrator be unwilling to sue; but without some special reason, a suit in equity cannot be maintained by creditors, distributees, or legatees for the recovery of property of the decedent from a third person. Mason v. Atlanta Fire Co. No. 1, 70 Ga. 604 , 48 Am. R. 585 (1883) (decided under former Code 1982, § 2485).

While an administrator is entitled to the possession of the lands for the purpose of paying debts and division, yet when there is no administration or if the administrator consents thereto, the heirs at law may take possession of the lands or may sue for them in their own right, and in such a suit by the heirs, it is necessary that the petition allege that there was no administration or that the administrator has been discharged before the suit was filed or that the administrator consented to the bringing of such action by the heirs, but it is not required in such an action that the petitioners allege that there are no debts against the estate. Shirley v. Mulligan, 202 Ga. 746 , 44 S.E.2d 796 (1947) (decided under former Code 1933, § 113-907).

An heir at law seeking to recover in the heir's own name all or a part of the estate of a decedent must allege and prove that there was no administration of the estate in this state or that the administrator was discharged before suit, or that the administrator had consented to the suit. Bowman v. Bowman, 206 Ga. 262 , 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-907); Crawley v. Selby, 208 Ga. 530 , 67 S.E.2d 775 (1951);(decided under former Code 1933, § 113-907).

Proof of collusion or fraud by administrator. - When the administrator makes a collusive conveyance for the purpose of defrauding those interested in the estate and obtaining a benefit personally, and refuses to give consent for the heirs to sue, the heirs may bring an equitable action against the administrator and the persons charged with being in collusion with the administrator for the purpose of protecting their rights. Bowman v. Bowman, 206 Ga. 262 , 56 S.E.2d 497 (1949) (decided under former Code 1933, § 113-907).

When an administrator is insolvent, unwilling to collect assets, or is in collusion with others to defraud the estate and refuses to sue, the heirs may sue in their own name and make the administrator a party defendant; this is an exception to or modification of the general rule that heirs may sue only if there is no administrator or if the administrator assents thereto as provided by statute. Harrison v. Holsenbeck, 208 Ga. 410 , 67 S.E.2d 311 (1951) (decided under former Code 1933, § 113-907).

Petition by the widow and sole heir at law of a named person who died intestate with no administration on his estate, alleging that before her husband's death, he had purchased a tract of land, paid the purchase money, and entered into possession of the land, and that since his death other claimants had entered into possession thereof, as the plaintiff merely sought to recover the land with mesne profits, and the suit was filed in the county where the land lay, stated a cause of action. Strickland v. Jenkins, 198 Ga. 15 , 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-907).

Petition, filed by the widow and sole heir at law of a landowner, stating that he died intestate and that there was no administration on his estate, presented a case wherein whatever right or title he might have had descended to her with the right to sue therefor in her own name. Strickland v. Jenkins, 198 Ga. 15 , 31 S.E.2d 18 (1944) (decided under former Code 1933, § 113-907).

Two destitute orphan girls were entitled in equity to maintain a suit in their own names for the amount alleged to be due them as heirs of a beneficiary under an insurance policy, in the absence of an administration of the beneficiary's estate, where administration would involve an expense almost equal to the sum sued for. Holt v. Industrial Life & Health Ins. Co., 182 Ga. 563 , 186 S.E. 193 (1936) (decided under former Code 1933, § 113-907).

When, in a suit by heirs at law to cancel a deed, the petition alleges that there is an administrator, but does not allege the assent of the administrator for the heirs to bring the suit, and does not charge fraud or collusion on the part of the administrator, the petition sets forth no right of action. Clark v. Woody, 197 Ga. 683 , 30 S.E.2d 181 (1944) (decided under former Code 1933, § 113-907).

In an action for trespass to real estate of an intestate, committed after the intestate's death, when it did not appear that an administrator had been appointed at the time of the trespass and had taken possession to pay debts and for distribution, and it appeared that the plaintiff was the sole heir at law of the intestate and was in possession as such at the time of the trespass, and when the plaintiff otherwise made a prima facie case, it was error to grant a nonsuit. Smith v. Fischer, 52 Ga. App. 598 , 184 S.E. 406 (1936) (decided under former Code 1933, § 113-907).

Equity will not intervene on behalf of a creditor, distributee, or legatee for the recovery of an intestate's property from a third person, except when the special circumstances shown are the collusion or insolvency of the administrator or the administrator's failure or unwillingness to collect assets. Morgan v. Woods, 69 Ga. 599 (1882) (decided under former Code 1882, § 2485); Mason v. Atlanta Fire Co. No. 1, 70 Ga. 604 , 48 Am. R. 585 (1883); Moughon v. Masterson, 140 Ga. 699 , 79 S.E. 561 (1913) (decided under former Code 1882, § 2485); Jones v. McLeod, 61 Ga. 602 (1878);(decided under former Civil Code 1910, § 3933).See also (decided under former Code 1873, § 2485).

Creditors may not sue when the administrator is solvent. Jordan v. Jordan, 16 Ga. 446 (1854) (decided under former law).

Best method of proving that no administration was ever had upon a particular estate is to introduce the evidence of the ordinary (now judge of probate court), or of another who has examined the records in the court of ordinary (now probate court) where letters of administration should have been granted, that no such letters are shown by those records. Crawley v. Selby, 208 Ga. 530 , 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-907).

Evidence was not sufficient to prove that there had been no administration at all upon nonresident's estate in Georgia since there was no evidence as to whether or not the deceased had property in this state in a county or counties other than the one county in which the deceased proved no administration was had. Crawley v. Selby, 208 Ga. 530 , 67 S.E.2d 775 (1951) (decided under former Code 1933, § 113-907).

Presumed assent. - Even in the absence of express assent to a transfer of real property to the beneficiaries, a co-executor's participation in a prior settlement which resulted in the transfer, in the co-executor's individual capacity as a beneficiary, was conduct which showed the co-executor's assent by presumption or implication to the decree of title to the property in the beneficiaries. Baggett v. Baggett, 270 Ga. App. 619 , 608 S.E.2d 688 (2004) (decided under former O.C.G.A. § 53-4-9).

Recovery of Estate

1. In General

Right of administrator to recover lands held by heirs for payment of debts. - Heirs at law are entitled to the possession of lands owned by an intestate at the time of death, until those lands are needed for the purpose of administration; that is, when necessary, the administrator has a qualified right thereto to pay debts and to make legal distribution. Smith v. Fischer, 52 Ga. App. 598 , 184 S.E. 406 (1936) (decided under former Code 1933, § 113-908).

While an heir may bring an action to recover property of an intestate when there is no administrator, or when the administrator consents to the action, the law plainly gives the administrator the right to recover property held adversely to the estate of an intestate. Andrews v. Walden, 208 Ga. 340 , 66 S.E.2d 801 (1951) (decided under former Code 1933, § 113-908).

When an administrator sues for land, the administrator makes out a prima facie case for the land's recovery upon proof that the administrator's intestate died seized thereof, and that the estate owes debts, which makes it necessary for the personal representative to administer the land for the payment thereof, the administrator having obtained leave to sell the land, and such prima facie case, the suit being against the heirs at law of a deceased son of the intestate, is not overcome by evidence that the deceased son had made declarations that in his lifetime there had been between the heirs a division in kind of the lands formerly owned by the intestate and that the portion sued for had by such division been set apart to him. Hortman v. Vissage, 193 Ga. 596 , 19 S.E.2d 523 (1942) (decided under former Code 1933, § 113-908).

Administrator, who was also estate creditor, still had to publish notice of proposed sale. - Trial court properly denied an estate administrator's petition for leave to recover and sell the estate's property as the administrator failed to publish notice of the petition and proposed sale, as required by former O.C.G.A. § 53-8-23, and personal service on the heirs in another proceeding to recover the real property did not satisfy the publication requirement. Huggins v. Powell, 293 Ga. App. 436 , 667 S.E.2d 219 (2008) (decided under former O.C.G.A. § 53-4-10 ).

Proof required to defeat right of administrator to recover land for distribution. - In order to defeat the right of an administrator to recover the land for distribution, it is necessary for the heir in possession not only to show that the land can be divided in kind, but that it is the purpose and intention and desire of all the heirs that the land shall be so divided. Jones v. Wilson, 227 Ga. 360 , 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

2. Order of Sale

Application for order of sale must allege necessity. - When an administrator applies for leave to sell the land of an intestate, it is essential that the administrator should allege that the sale is necessary for the purpose either of paying debts or making distribution; the ordinary (now judge of probate court) has no authority whatever to grant an administrator leave to sell land, unless it is necessary for one or the other of these purposes. Patterson v. Fidelity & Deposit Co., 181 Ga. 61 , 181 S.E. 776 (1935) (decided under former Code 1933, § 113-908).

Order authorizing sale by administrator as conclusive proof of necessity of sale. - Order granting leave to the administrator to sell the lot on which the dwelling was located is conclusive on the defendants as to the necessity of such sale by the administrator. City of Griffin v. McKneely, 101 Ga. App. 811 , 115 S.E.2d 463 (1960) (decided under former Code 1933, § 113-908).

Order of sale not binding upon heir unless personal notice given. - Such an order for sale or distribution is not "conclusive evidence of either fact" unless personal notice has been given an heir in possession. Jones v. Wilson, 227 Ga. 360 , 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

When it is sought to use the order as conclusive evidence against the heir in such a proceeding, the heir is entitled, under the statute as construed by this court, to personal notice of the application. Unless this character of notice is given, the court is without jurisdiction to render a conclusive judgment, and the heir is at liberty to attack the judgment. The order is, however, in any event prima facie evidence against the heir. But the prima facie showing made against the heir by the order may be overcome, in a proper case, by any competent evidence showing that there is no necessity for a sale. Jones v. Wilson, 227 Ga. 360 , 180 S.E.2d 727 (1971) (decided under former Code 1933, § 113-908).

Administrator liable for rents accruing after grant of order to sell. - When an administrator is granted leave to sell the land of the estate for the purpose of paying debts and distribution, the administrator may collect rents accruing afterwards, and the administrator and the administrator's sureties may be held liable therefor on the administrator's bond. Whether the same would be true as to rents accruing after the intestate's death, but before the order granting leave to sell, it does not appear that rents for any such period would be involved. Jones v. Wilson, 195 Ga. 310 , 24 S.E.2d 34 (1943) (decided under former Code 1933, § 113-908).

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1958, p. 355, § 1, and former O.C.G.A. § 53-10-1 are included in the annotations for this Code section.

Counteraffidavit. - Duty of an heir opposing a petition for an order dispensing with administration to file a counteraffidavit in opposition to a motion for summary judgment on the petition arises only after the movant has made a prima facie showing of entitlement to judgment. Echols v. Hudson, 189 Ga. App. 780 , 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-1 ).

Fact questions preclude summary judgment. - Fact questions, precluding summary judgment on a petition for an order dispensing with administration, existed when the record showed only that there was an estate consisting of a checking account and unidentified household furnishings, that there were debts owed by the decedent, and that the heirs had not agreed amicably to a division of the assets. Echols v. Hudson, 189 Ga. App. 780 , 377 S.E.2d 542 (1989) (decided under former O.C.G.A. § 53-10-1 ).

Cited in Bell v. Liberty Mut. Ins. Co., 108 Ga. App. 173 , 132 S.E.2d 538 (1963); Clark v. Perrin, 224 Ga. 307 , 161 S.E.2d 874 (1968); Babb v. Potts, 183 Ga. App. 785 , 360 S.E.2d 44 (1987).

Order Dispensing with Administration Generally

Outstanding order dispensing with administration of decedent's estate would not be bar to probate of decedent's will. Roughton v. Jones, 225 Ga. 774 , 171 S.E.2d 536 (1969) (decided under Ga. L. 1958, p. 355, § 1).

Cannot support plea of res judicata. - Probate court's order on petition for no administration necessary cannot support plea of res judicata because it is subject to trial de novo in the superior court; i.e., the probate court's order is not final. Hurst v. Gray, 251 Ga. 856 , 310 S.E.2d 524 (1984) (decided under former O.C.G.A. § 53-10-1 ).

Party who has previously applied for and obtained order dispensing with administration of an estate, an essential condition precedent being "that the estate of the decedent owes no debts," is thereafter precluded from asserting any claim the party may have had against the estate for debts which the party voluntarily paid. Shaw v. Davis, 119 Ga. App. 801 , 168 S.E.2d 853 (1969) (decided under Ga. L. 1958, p. 355, § 1).

Petition

Omissions or mistakes cured by amendment. - Statutory requirements that the petition allege the names, ages, and residences of the heirs, and the existence of an agreement for division, are matters which may be cured by amendment if they are omitted or improperly stated. Saturday v. Saturday, 113 Ga. App. 251 , 147 S.E.2d 798 (1966) (decided under Ga. L. 1958, p. 355, § 1).

Presumption of agreement for amicable division. - Bringing of a petition under this statute by those who allege themselves to be all of the heirs at law of a deceased gives rise to a presumption that they have reached an agreement for an amicable division of the estate among themselves, whether it be alleged in the petition or not. Saturday v. Saturday, 113 Ga. App. 251 , 147 S.E.2d 798 (1966) (decided under Ga. L. 1958, p. 355, § 1).

Jurisdiction

Basis for proceeding in probate court. - Intestacy of a deceased person and the fact that no permanent administration in this state has been had upon the estate are the bases for the proceeding in the court of ordinary (now probate court) to dispense with the administration of an estate. Roughton v. Jones, 225 Ga. 774 , 171 S.E.2d 536 (1969) (decided under Ga. L. 1958, p. 355, § 1).

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Laws 1838, Cobb's 1851 Digest, p. 296, former Laws 1850, Cobb's 1851 Digest, p. 297, former Code 1863, § 2531, former Code 1868, § 2530, former Code 1873, § 2751, former Code 1882, § 2571, former Civil Code 1895, § 3465, former Civil Code 1910, § 4041, former Code 1933, § 113-1002, and former O.C.G.A. §§ 53-5-1 and 53-5-2 are included in the annotations for this Code section.

Former O.C.G.A. Ch. 5, T. 53 was not unconstitutional, since former O.C.G.A. § 53-5-1 removed gender classification for year's support eligibility, and since the year's support statute when first adopted was not violative of the Constitution under court interpretations of that period. Adams v. Adams, 249 Ga. 477 , 291 S.E.2d 518 (1982) (decided under former O.C.G.A. § 53-5-1 ).

Purpose. - Prime purpose of this statute is to provide a suitable support and maintenance for the widow and minor children, if any, of a father who has died. The state gives the year's support a priority over all debts, even though reduced to judgment, and a priority over the taxes due the sovereign state. Beddingfield v. Old Nat'l Bank & Trust Co., 175 Ga. 172 , 165 S.E. 61 (1932) (decided under former Code 1933, § 113-1002).

Statute has for its purpose the joint support and maintenance of the widow and the minor children. It is based on considerations of public policy; and as the provisions of the statutes in reference thereto are to be construed in favor of the beneficiaries entitled to support, proceedings thereunder are to be construed in favor of the intended beneficiaries of the law. Farmers Bank v. Williams, 188 Ga. 789 , 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002); Ennis v. Ennis, 207 Ga. 665 , 63 S.E.2d 887 (1951);(decided under former Code 1933, § 113-1002).

Beneficent purpose of the provision for a year's support is to see that the widow and minor children, upon the death of the husband and father, shall not be cut adrift, but shall have immediate relief by having set apart funds or property to carry them through the period of a year, taking into consideration the circumstances and standing of the family previous to the death of the husband, and also keeping in view the solvency of the estate. Tilley v. King, 193 Ga. 602 , 19 S.E.2d 281 (1942) (decided under former Code 1933, § 113-1002).

Purpose of this statute is to provide a support for a limited period for those members of the family whom the deceased was, while in life, legally bound to support. Woodes v. Morris, 247 Ga. 771 , 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).

An award entered after the 1979 amendment of year's support statute, but from an estate of a decedent who died before the amendment, is valid. Lawrence v. Lawrence, 254 Ga. 692 , 333 S.E.2d 610 (1985) (decided under former O.C.G.A. § 53-5-1 ).

When property is set apart to a widow and the widow's minor children the property is intended to be used for their joint support and maintenance. Tribble v. Knight, 238 Ga. 84 , 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

Entitlement to a year's support award is a matter of status, and is established by demonstrating that the applicant belongs within one of the classes of intended beneficiaries codified in subsection (b) of former O.C.G.A. § 53-5-2 . Gentry v. Black, 256 Ga. 569 , 351 S.E.2d 188 (1987) (decided under former O.C.G.A. § 53-5-2 ); Driskell v. Crisler, 237 Ga. App. 408 , 515 S.E.2d 416 (1999);(decided under former O.C.G.A. § 53-5-2).

When one establishes that he or she is the spouse of the deceased, eligibility for year's support is also established. Gentry v. Black, 256 Ga. 569 , 351 S.E.2d 188 (1987) (decided under former O.C.G.A. § 53-5-2 ).

Entitlement to the right to a year's support is a matter of status. It vests upon the death of the spouse. Wigley v. Hambrick, 193 Ga. App. 903 , 389 S.E.2d 763 (1989), cert. denied, 193 Ga. App. 911 , 389 S.E.2d 763 (1990) (decided under former O.C.G.A. § 53-5-2 ).

Year's support is designed to care for widow during the first year following her husband's death. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).

Award of property continues after the expiration of the year, so long as the property lasts, to be used for the support of the widow during her life and the children until the children are married or reach majority. Tribble v. Knight, 238 Ga. 84 , 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

Personal items from the marital residence. - Genuine issue of material fact existed as to whether certain personal items the executor demanded to be returned from a decedent's widow were taken from the marital residence and were thus included in the year's support awarded to the widow, making summary judgment improper. Rabun v. Rabun, 341 Ga. App. 878 , 802 S.E.2d 296 (2017).

Year's support reflects public policy. - Law does not require that a father provide for the support of his children after his death. Public policy, of course, favors the support of minor children by the father's estate after his death. Russell v. Fulton Nat'l Bank, 247 Ga. 556 , 276 S.E.2d 641 , overruled on other grounds, Dolvin v. Dolvin, 248 Ga. 439 , 284 S.E.2d 254 (1981) (decided under former O.C.G.A. § 53-5-2 ).

Courts favor year's support. Rakestraw v. Rakestraw, 70 Ga. 806 (1883) (decided under former Code 1882, § 2571); Cheney v. Cheney, 73 Ga. 66 (1884);(decided under former Code 1882, § 2571).

A year's support is an anomaly and special favorite of legislation and jurisprudence. Rimes v. Graham, 199 Ga. 406 , 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).

Policy of the law is to protect this favored creature of the law and preserve the property or money set aside as a year's support for that purpose and none other. Rimes v. Graham, 199 Ga. 406 , 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).

Year's support proceeds on the theory that a widow is entitled to it, regardless of everything else. Clark v. Clark, 62 Ga. App. 738 , 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1002).

Widow of a deceased person is entitled to a year's support out of his estate, whether he dies testate or intestate. Clark v. Clark, 62 Ga. App. 738 , 9 S.E.2d 710 (1940) (decided under former Code 1933, § 113-1002); Saxon v. Aycock, 72 Ga. App. 728 , 34 S.E.2d 914 (1945);(decided under former Code 1933, § 113-1002).

Hinge upon which right of year's support hangs is legal obligation to support during lifetime of deceased. The granting of a year's support is an extension of that obligation beyond the life of the person so obligated, thereby creating a debt of the estate as a necessary expense of administration. Woodes v. Morris, 247 Ga. 771 , 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).

Statutes to be construed liberally. - Statutes providing for a year's support and fixing its priority are to be construed liberally in favor of the dependents. Olmstead v. Clark, 181 Ga. 478 , 182 S.E. 513 (1935) (decided under former Code 1933, § 113-1002); Rimes v. Graham, 199 Ga. 406 , 34 S.E.2d 443 (1945); Howard v. Howard, 150 Ga. App. 213 , 257 S.E.2d 336 (1979) (decided under former Code 1933, § 113-1002);(decided under former Code 1933, § 113-1002).

Solvency of estate immaterial. - Year's support provided for by statute will be allowed whether the decedent's estate is solvent or insolvent. Hopkins v. Long, 9 Ga. 261 (1851) (decided under former Laws 1850, Cobb's 1851 Digest, p. 297); Jackson v. Corbin, 39 Ga. 102 (1869); McNair v. Rabun, 159 Ga. 401 , 126 S.E. 9 (1924) (decided under former Code 1868, § 2530);(decided under former Civil Code 1910, § 4041).

On the filing of caveats the appraisers may take the question of solvency into consideration when determining the amount of support. Aiken v. Davidson, 146 Ga. 252 , 91 S.E. 34 (1916) (decided under former Civil Code 1910, § 4041); McNair v. Rabun, 159 Ga. 401 , 126 S.E. 9 (1924);(decided under former Civil Code 1910, § 4041).

Right to support for widow and minor children is absolute. Brown v. Joiner, 77 Ga. 232 , 3 S.E. 157 (1886) (decided under former Code 1882, § 2571); Swain v. Stewart, 98 Ga. 366 , 25 S.E. 831 (1896); Miller v. Miller, 105 Ga. 305 , 31 S.E. 186 (1898) (decided under former Civil Code 1895, § 3465); Goss v. Harris, 117 Ga. 345 , 43 S.E. 734 (1903); Anders v. First Nat'l Bank, 165 Ga. 682 , 142 S.E. 98 (1928) (decided under former Civil Code 1895, § 3465);(decided under former Civil Code 1895, § 3465);(decided under former Civil Code 1910, § 4041).

Right to support cannot be divested by a contingency occurring after the right accrues. Goss v. Harris, 117 Ga. 345 , 43 S.E. 734 (1903) (decided under former Civil Code 1895, § 3465); Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 (1972);(decided under former Code 1933, § 113-1002).

Right to support may be divested by agreement. Clark v. Emerson, 141 Ga. 612 , 81 S.E. 870 (1914) (decided under former Civil Code 1910, § 4041); Bates v. Burden, 148 Ga. 157 , 96 S.E. 178 (1918);(decided under former Civil Code 1910, § 4041).

Because the husband's petition for divorce was filed hours before his death, the paragraph of the parties' post-nuptial agreement that went into effect if one spouse filed for a divorce controlled and provided that the wife was entitled to one-half of the items listed on an exhibit and not a year of support as sought by the wife. In re Estate of Boyd, 340 Ga. App. 744 , 798 S.E.2d 330 (2017).

Award of year's support may operate to defeat intentions of testator. - Whenever a year's support is carved out of property disposed of by will, the intention of the testator is defeated pro tanto, and there seems to be no greater antagonism in setting aside as a year's support a part of property which the executors have been directed to keep together than there is in taking property away from a person to whom it has been devised or bequeathed and devoting it to a year's support. In either case, the right to a year's support overrides the testator's instructions. Burch v. Harrell, 57 Ga. App. 514 , 196 S.E. 205 (1938) (decided under former Code 1933, § 113-1002).

Year's support may not operate to divest minor heir of interest in property. - Considering both the benevolent purposes of the year's support law as well as the clear intent of other laws to protect the rights and claims of minors, the award of a year's support cannot operate to divest a minor heir of the minor's interest in property unless it appears that appropriate steps were taken to protect the minor's interest. Outlaw v. Outlaw, 121 Ga. App. 284 , 173 S.E.2d 459 (1970) (decided under former Code 1933, § 113-1002).

Year's support may be set aside for fraud. Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982) (decided under former O.C.G.A. § 53-5-2 ).

Cited in Cleghorn v. Johnson, 69 Ga. 369 (1882); Farris v. Battle, 80 Ga. 187 , 7 S.E. 262 (1887); Maddox v. Patterson, 80 Ga. 719 , 6 S.E. 581 (1888); McDowell v. McMurria, 107 Ga. 812 , 33 S.E. 709 , 73 Am. St. R. 155 (1899); Hill v. Van Duzer, 111 Ga. 867 , 36 S.E. 966 (1900); Wright v. Roberts, 116 Ga. 194 , 42 S.E. 369 (1902); Sexton v. Burruss, 144 Ga. 192 , 86 S.E. 537 (1915); Jones v. Wilkes, 146 Ga. 803 , 92 S.E. 517 (1917); Ellis v. Hogan, 147 Ga. 609 , 95 S.E. 4 (1918); Phillips v. Cook, 158 Ga. 151 , 123 S.E. 108 (1924); Federal Land Bank v. Henson, 166 Ga. 857 , 144 S.E. 728 (1928); Grant v. Sosebee, 173 Ga. 98 , 159 S.E. 672 (1931); Rooke v. Day, 46 Ga. App. 379 , 167 S.E. 762 (1932); State Banking Co. v. Hinton, 178 Ga. 68 , 172 S.E. 42 (1933); National City Bank v. Welch, 53 Ga. App. 528 , 186 S.E. 596 (1936); Hill v. Hill, 55 Ga. App. 500 , 190 S.E. 411 (1937); Redwine v. Frizzell, 184 Ga. 230 , 190 S.E. 789 (1937); Parks v. Gresham, 185 Ga. 470 , 195 S.E. 728 (1938); Sweat v. Arline, 186 Ga. 460 , 197 S.E. 893 (1938); Minchew v. Juniata College, 188 Ga. 517 , 4 S.E.2d 212 (1939); Harrell v. Burch, 195 Ga. 96 , 23 S.E.2d 434 (1942); Jones v. Federal Land Bank, 196 Ga. 419 , 26 S.E.2d 731 (1943); Fulcher v. Fulcher, 75 Ga. App. 480 , 43 S.E.2d 588 (1947); Bush v. Reconstruction Fin. Corp., 79 Ga. App. 25 , 52 S.E.2d 515 (1949); McDaniel v. Selman, 79 Ga. App. 25 9, 53 S.E.2d 391 (1949); Carroll v. Hill, 80 Ga. App. 576 , 56 S.E.2d 821 (1949); Dorsey v. Georgia R.R. Bank & Trust Co., 82 Ga. App. 237 , 60 S.E.2d 828 (1950); Smith v. Brogan, 207 Ga. 642 , 63 S.E.2d 647 (1951); Harnesberger v. Davis, 86 Ga. App. 41 , 70 S.E.2d 615 (1952); Holland v. Froklis, 89 Ga. App. 768 , 81 S.E.2d 317 (1954); In re Engram, 156 F. Supp. 342 (M.D. Ga. 1957); United States v. First Nat'l Bank & Trust Co., 297 F.2d 312 (5th Cir. 1961); Samples v. Samples, 107 Ga. App. 788 , 131 S.E.2d 584 (1963); Williams v. Ross, 228 F. Supp. 751 (N.D. Ga. 1963); Park v. Minton, 229 Ga. 765 , 194 S.E.2d 465 (1972); Gibson v. McWhirter, 230 Ga. 545 , 198 S.E.2d 205 (1973); Strickland v. Trust Co., 230 Ga. 714 , 198 S.E.2d 668 (1973); Payne v. Bradford, 231 Ga. 487 , 202 S.E.2d 422 (1973); Walker v. Smith, 130 Ga. App. 16 , 202 S.E.2d 469 (1973); Barone v. Adcox, 235 Ga. 588 , 221 S.E.2d 6 (1975); Clavin v. Clavin, 238 Ga. 421 , 233 S.E.2d 151 (1977); Davenport v. Davenport, 243 Ga. 613 , 255 S.E.2d 695 (1979); Dolvin v. Dolvin, 248 Ga. 439 , 284 S.E.2d 254 (1981); Nationwide Mut. Ins. Co. v. Walls, 546 F. Supp. 30 (S.D. Ga. 1982); Nationwide Mut. Ins. Co. v. Gay, 165 Ga. App. 293 , 299 S.E.2d 611 (1983); Young v. Ellis, 250 Ga. 838 , 301 S.E.2d 271 (1983); Hughes v. Hughes, 169 Ga. App. 850 , 314 S.E.2d 920 (1984); Powell v. Thorsen, 253 Ga. 572 , 322 S.E.2d 261 (1984); Gentry v. Black, 178 Ga. App. 284 , 342 S.E.2d 729 (1986); Byrd v. McKinnon, 1 89 Ga. App. 768 , 377 S.E.2d 686 (1989); State Farm Mut. Auto. Ins. Co. v. Day, 195 Ga. App. 823 , 394 S.E.2d 913 (1990); Wynn v. Wynn, 202 Ga. App. 679 , 415 S.E.2d 287 (1992); Baulding v. Turner, 208 Ga. App. 548 , 430 S.E.2d 836 (1993); Cabrel v. Lum, 289 Ga. 233 , 710 S.E.2d 810 (2011).

Application Generally

1. In General

When obligation is continuously recognized for two years preceding death without challenge by deceased, the deceased's estate is subject to debt of year's support. Woodes v. Morris, 247 Ga. 771 , 279 S.E.2d 704 (1981) (decided under former Code 1933, § 113-1002).

Award of year's support to spouse upheld. - When co-executors failed to include in the record on appeal the transcript of the hearing on the decedent's spouse's petition for a year's support and the order showed that the probate court properly considered a lump sum death benefit payment to the spouse from the decedent's employer, there was no basis in the record for the court to reverse an award to the spouse under O.C.G.A. § 53-3-1(c) . In re Estate of Battle, 263 Ga. App. 73 , 587 S.E.2d 140 (2003).

Denial of application of year's support upheld. - Summary judgment in favor of a caveator, and against a wife, on the wife's application for year's support from the estate of the wife's decedent husband was properly denied as the wife opted instead to accept a $5,000 bequest from the husband's will in lieu of a year's support under a prenuptial agreement which was found to be valid, binding, and enforceable, and the wife failed to show any evidence of duress, coercion, fraud, misrepresentation, unconscionability, or changed circumstances which would have voided the agreement. Hiers v. Estate of Hiers, 278 Ga. App. 242 , 628 S.E.2d 653 (2006).

Superior court's order reversing a year's support award in the amount of $30,000, along with title to a vehicle and antique furniture, and instead enforcing an oral agreement for an equal division of the assets of the estate after payment of all expenses was proper as: (1) the surviving wife failed to testify as to the amount of money needed to maintain the standard of living for a period of 12 months after the decedent husband died; (2) the wife presented no evidence of any income earned during the marriage; (3) no evidence documenting the wife's medical expenses incurred during the marriage was presented; and (4) the wife's testimony about the decline in the standard of living was relevant under O.C.G.A. § 53-3-7(c)(3), but provided little guidance to the court. Taylor v. Taylor, 288 Ga. App. 334 , 654 S.E.2d 146 (2007), cert. denied, 2008 Ga. LEXIS 322 (Ga. 2008).

Denial of spouse's petition for year's support improper. - Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383 , 724 S.E.2d 797 (2012).

2. Arbitrary Exclusion of Minor Children

Arbitrary exclusion of minor children from application prohibited. - To arbitrarily discriminate against the minor child under the application for 12 months' support, and so set apart to the widow the entire assets of an insolvent estate, is such as to render such action nugatory and void; and a judgment based on such action is void as a matter of law. De Jarnette v. De Jarnette, 176 Ga. 204 , 167 S.E. 526 (1933) (decided under former Civil Code 1910, § 4041).

When the appraisers assumed that it was not compulsory on them to set aside any portion of the estate for the benefit of the minor, who was, so far as the record shows, more dependent upon his father's estate for support and maintenance than the widow who received the entire net amount of the insolvent estate, the appraisers acted under a mistake of law causing the judgment thereby obtained to be set aside. De Jarnette v. De Jarnette, 176 Ga. 204 , 167 S.E. 526 (1933) (decided under former Civil Code 1910, § 4041).

When the entire estate is set aside to the widow alone, arbitrarily excluding any minor children by depleting the assets of the estate, the award of the appraisers to the widow must be disallowed. Collins v. Collins, 110 Ga. App. 569 , 139 S.E.2d 459 (1964) (decided under former Code 1933, § 113-1002).

Vesting

1. In General

Applicability and purpose. - Right to year's support by a widower is a vested right, superior to any encumbrances or debts or other legal entitlement of or to the estate, including bequests to legatees under a testate deceased; it is intended to protect the widow or widower and minor child and children even if the award overrides a testamentary bequest to another. Goodman v. Independent Life & Accident Ins. Co., 196 Ga. App. 783 , 397 S.E.2d 56 (1990) (decided under former O.C.G.A. § 53-5-2 ).

Widow is entitled to a year's support to be set apart to the widow out of the estate of the widow's deceased husband, whether he died testate or intestate, and this right is absolute and is superior to all other claims against the estate, except as provided by law. Rogers v. Woods, 63 Ga. App. 195 , 10 S.E.2d 404 (1940) (decided under former Code 1933, § 113-1002).

2. Vesting of Right to Year's Support

Right of widow of decedent to a year's support is a "vested" right, and the courts are jealous of any attempt to encroach upon it. Seiden v. Southland Chenilles, Inc., 195 F.2d 899 (5th Cir. 1952) (decided under former Code 1933, § 113-1002).

Statute permits separate portions of a decedent's estate to be set aside as year's support to the widow and to children of the deceased. Collins v. Collins, 110 Ga. App. 569 , 139 S.E.2d 459 (1964) (decided under former Code 1933, § 113-1002).

Right to year's support vests upon death of deceased. - Right to a year's support out of the estate of a deceased, which is given to the widow and minor children by statute, vests upon the death of the deceased. Philpot v. Ramsey & Hogan, 47 Ga. App. 635 , 171 S.E. 204 (1933) (decided under former Code 1933, § 113-1002).

Right to a 12 months' support vests immediately on death of decedent. Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858 , 151 S.E. 796 (1930) (decided under former Civil Code 1910, § 4041).

Right to a year's support vests in a widow and minor children at the time of the death of the husband and father. Farmers Bank v. Williams, 188 Ga. 789 , 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002); Seiden v. Southland Chenilles, Inc., 195 F.2d 899 (5th Cir. 1952);(decided under former Code 1933, § 113-1002).

Right to a year's support vests in the widow and minor children, if any, immediately upon the death of the husband. McDaniel v. Kelley, 61 Ga. App. 105 , 5 S.E.2d 672 (1939) (decided under former Code 1933, § 113-1002).

3. Vesting of Title

Title to property set aside as a year's support vests in the widow and minor children; the interest of a minor in the title is not divested upon the minor's reaching majority, and upon the death of the widow, if she survives the minor's majority, and the majority of any remaining children, the minor is entitled to the minor's proportionate interest in such of the property as then remains unconsumed. Walden v. Walden, 191 Ga. 182 , 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).

Year's support for a widow can be set apart to her only from the estate of her deceased husband; and if property included therein does not as a matter of fact constitute a part of his estate, the judgment of the court of ordinary (now probate court) simply will not attach to such property, but will be void as applied thereto. Johnson v. City of Blackshear, 196 Ga. 652 , 27 S.E.2d 316 (1943) (decided under former Code 1933, § 113-1002).

Year's support can only be set aside from property interests which were a part of the decedent's estate at the time of her death. A judgment of the probate court is void as to any property set aside which was not a part of the decedent's estate at her death. Johnson v. Johnson, 199 Ga. App. 549 , 405 S.E.2d 544 (1991) (decided under former O.C.G.A. § 53-5-2 ).

Widow receives such title as husband had. - When property is set apart to a widow as a year's support she receives just such title as her deceased husband had, and acquires no greater title by reason of the setting apart to her. Stephens v. Carter, 215 Ga. 355 , 110 S.E.2d 762 (1959) (decided under former Code 1933, § 113-1002).

All that the year's support award does is vest in the widow whatever interest, legal or equitable, that husband had in the property. Stephens v. Carter, 215 Ga. 355 , 110 S.E.2d 762 (1959) (decided under former Code 1933, § 113-1002).

Year's support may be set apart out of any assets to which the husband or father had legal title at the time of his death. In addition thereto, property in which the deceased had an equity at the time of his death may be set aside for a year's support. Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Provision for periodic payment from fund. - When the appraisers of estate set aside as a year's support to the widow a sum of money in the hands of the husband's administrator, with the provision that the sum be turned over to the widow in periodic payments, no objection being filed to the return of the appraisers, absolute title to the fund vests in the widow from the time the return is made to the ordinary (now probate judge). May v. Braddock, 92 Ga. App. 302 , 88 S.E.2d 539 (1955) (decided under former Code 1933, § 113-1002).

Award from trust. - Even if no legal title remained in the decedent at her death, if her estate retained an equitable interest as beneficiary of the alleged trust, a year's support may include an award of such interest. Johnson v. Johnson, 199 Ga. App. 549 , 405 S.E.2d 544 (1991) (decided under former O.C.G.A. § 53-5-2 ).

Title must be in decedent at the time of death in order for a year's support to be assignable from specified property. Scruggs v. Morel, 22 Ga. App. 93 , 95 S.E. 316 (1918) (decided under former Civil Code 1910, § 4041).

Year's support may not attach to alienated property. - Widow is not entitled to have a year's support set apart in land to which the husband during his lifetime conveyed all his title, since such year's support can only be set aside from property of the estate of the husband. Plowden v. Plowden, 47 Ga. App. 751 , 171 S.E. 388 (1933) (decided under former Code 1933, § 113-1002).

A judgment of the court of ordinary (now probate court) allowing a year's support for the family of deceased will not attach to property which has been conveyed away by the deceased prior to his death and is no longer a part of his estate; the rule is the same as applied to the legal title, although the property was conveyed as security only. Richey v. First Nat'l Bank, 180 Ga. 751 , 180 S.E. 740 (1935) (decided under former Code 1933, § 113-1002).

When the father of certain minor children made a deed conveying to them a lot of land already encumbered, and actually delivered the deed to them, they were not estopped, after the death of the father, from claiming a year's support out of the proceeds of the sale of the land under an execution in favor of certain creditors of the estate, by reason of the fact that the deed had been delivered to them and they had received it, and that therefore the land was no longer a part of the estate of the deceased father. Pierce v. J.A. Alford & Sons, 180 Ga. 327 , 179 S.E. 84 (1935) (decided under former Code 1933, § 113-1002).

4. Unconsumed Property

Unconsumed property generally. - General allowance from the estate of a decedent for a year's support, if not consumed during the year, will stand over for the support of the widow and minors afterwards so long as they are members of the family and fill this description. Children attaining majority or ceasing by marriage to be of the family, cannot, during that time coerce partition of land thus allowed and set apart, the whole land being charged with the support of the family. Whitt v. Ketchum, 84 Ga. 128 , 10 S.E. 503 (1889) (decided under former Code 1882, § 2571).

Disposition of unconsumed property upon death of widow. - Because the statute expressly states that the year's support for the family may be set aside on the application of the widow, when it is set aside, the provision so made inures to the benefit of the class named in the statute. Accordingly, a widow and three children, who are unmarried minors and members of the family at the time of their father's death, are vested with an undivided one-fourth interest each in the lands set apart under the year's support; and the interest which minors take under a year's support is not divested upon reaching majority; and after the widow's death such children are entitled to their proportionate interest in the unconsumed property; and the proportionate interest of the widow under the year's support goes to her heirs at law upon her death intestate. Ennis v. Ennis, 207 Ga. 665 , 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).

5. Lack of Administration No Bar to Vesting

Year's support not dependent upon qualification of legal representative. - Right to a year's support accrues upon the death of the husband or parent, and not upon the qualification of the legal representative of the estate. Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 (1943) (decided under former Code 1933, § 113-1002).

Procurement of the year's support is not dependent upon an administration of the estate. Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 (1943) (decided under former Code 1933, § 113-1002).

Appraisers

1. Duties

Language of statute was mandatory, for the statute declares that it shall be the duty of the appraisers to set apart and assign "to such widow and children." De Jarnette v. De Jarnette, 176 Ga. 204 , 167 S.E. 526 (1933) (decided under former Code 1933, § 113-1002).

Duties of appraisers generally. - When a widow makes application, for a year's support for herself and the minor child of the deceased husband by a former marriage, and the order of the ordinary (now probate judge) appointing appraisers directs them to set apart a year's support for the widow and minor child, it is the duty of the appraisers to set apart and assign to such widow and child a sufficiency for their maintenance and support for the space of 12 months from the date of administration, if there be such. De Jarnette v. De Jarnette, 176 Ga. 204 , 167 S.E. 526 (1933) (decided under former Code 1933, § 113-1002).

On an application by a widow for a year's support the duties of the appraisers are purely ministerial. Shingler v. Furst, 52 Ga. App. 39 , 182 S.E. 72 (1935) (decided under former Code 1933, § 113-1002).

2. Return

Award of the appraisers is prima facie correct, and the burden is on objectors to disapprove the award's correctness. Smith v. Smith, 115 Ga. 692 , 42 S.E. 72 (1902) (decided under former Civil Code 1895, § 3465); Touchton v. Mock, 91 Ga. App. 689 , 86 S.E.2d 699 (1955);(decided under former Code 1933, § 113-1002).

When appraisers have set aside a year's support to a widow, and a caveat thereto has been filed by the administrator of the estate, irrespective of whether the burden of proof rests on the widow or on the administrator, the return of the appraisers makes a prima facie case for the widow, and, in the absence of any evidence tending to show the circumstances and standing of the family before the death of the husband, or as to the solvency of the estate, a verdict in favor of the claimant sustaining the return of the appraisers is demanded as a matter of law. Wilson v. Wilson, 54 Ga. App. 770 , 189 S.E. 71 (1936) (decided under former Code 1933, § 113-1002).

When the appraisers set aside, as a year's support to the widow, property valued at $300.00, and the only evidence in rebuttal of the presumption of the correctness of the year's support was that various sums of money from the sale of property of the estate had been paid to the widow by the administrator, and there was still unpaid an indebtedness against the estate of $150.00, and there was no evidence tending to show that the value of the property set aside as a year's support was in excess of the amount necessary for the support of the widow, estimated according to the circumstances and standing of the family previous to the death of the husband, although the property set aside may have consisted of all of the estate and no assets were left with which to pay the indebtedness, the evidence was insufficient to rebut the presumption of the correctness of the return of the appraisers. Wilson v. Wilson, 54 Ga. App. 770 , 189 S.E. 71 (1936) (decided under former Code 1933, § 113-1002).

When excessiveness of the award of a year's support is the sole issue involved, the return of the appraisers is prima facie correct, the burden is upon the party disputing the return to show otherwise, and in the absence of evidence tending to show the circumstances and standing of the family before the testator's death or as to the solvency of the estate, a verdict sustaining the return is demanded as a matter of law. Bright v. Knecht, 182 Ga. App. 820 , 357 S.E.2d 159 (1987) (decided prior to 1986 amendment of former O.C.G.A. § 53-5-2 ).

Caveat as remedy for incorrect or improper return. - When objections to the return of the appraisers to set apart and assign a 12 months' support to the widow and children of a decedent have been filed and sustained, so as to have the effect of amending the return, the return of the appraisers and the judgment may be recorded, and will be effective to set apart as a 12 months' support the property or money included in the report as corrected and amended by the judgment. Davis v. City of Atlanta, 182 Ga. 242 , 185 S.E. 279 (1936) (decided under former Code 1933, § 113-1002).

If, in making their return, the appraisers have acted upon insufficient or misleading information as to the property owned by the decedent at the time of decedent's death, or as to any other relevant fact upon which their return may in part be predicated, the law provides a remedy for any person whose legal rights may be injuriously affected thereby, by giving to such person the right to caveat the return; and, upon a trial of the issue thus raised before the ordinary (now probate judge), all the relevant facts may be developed by competent and legal evidence introduced for this purpose, and the return, if incorrect and improper, under the facts disclosed, may be corrected. Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Return of appraisers not vitiated by mere irregularities. - Mere irregularities, such as the number of minors being mistakenly stated in other portions of the proceedings, do not have the effect of vitiating the return of the appraisers in the year's support proceedings. Ennis v. Ennis, 207 Ga. 665 , 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).

Failure of the appraisers in year's support proceeding to take the prescribed oath is an irregularity which alone will not vitiate their return. Smith v. Smith, 187 Ga. 743 , 2 S.E.2d 417 (1939) (decided under former Code 1933, § 113-1002).

Appraisers not required to place value upon property. - It is not required by law, nor is it essential to the return, that the appraisers specifically find the value of the property, or in the return place a value upon the property. Daniel v. First Nat'l Bank, 50 Ga. App. 632 , 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

Widow's right to a year's support is not affected by the appraisers' dereliction of duty for which the widow is not responsible. Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Ordinary's (now probate judge) duty is ministerial, unless objections are filed to the return of the appraisers; but, when objections are filed, the ordinary discharges a judicial function in determining their validity. Shingler v. Furst, 52 Ga. App. 39 , 182 S.E. 72 (1935) (decided under former Code 1933, § 113-1002).

Character of Award

Appraisers or jury to determine character of year's support. - It is for the appraisers or the jury, as the case might be, to determine whether the year's support allowance should be in money to be charged to the property of the estate, or should be in property of the estate measured by money. Calhoun Nat'l Bank v. Slagle, 53 Ga. App. 553 , 186 S.E. 445 (1936) (decided under former Code 1933, § 113-1002).

Widow is entitled to have a year's support allowance in property, instead of cash, unless the appraisers or the jury should determine to the contrary, and a year's support to a widow and children may be set apart from property of which their husband and father died possessed, to be estimated according to the circumstances and standing of the family previous to the death of their husband and father. Calhoun Nat'l Bank v. Slagle, 53 Ga. App. 553 , 186 S.E. 445 (1936) (decided under former Code 1933, § 113-1002).

There is no provision of law by which the widow is bound to accept cash offered by the judgment creditors of her husband, in lieu of a year's support allowance, even though the amount offered is the amount at which the appraisers had valued the year's support allowance set apart by them. Calhoun Nat'l Bank v. Slagle, 53 Ga. App. 553 , 186 S.E. 445 (1936) (decided under former Code 1933, § 113-1002).

The award of a year's support to a widow holding the security deed should be made of the equity of redemption as to the remainder interest, or of the remainder interest subjected to the outstanding security deed, rather than in the value of the remainder interest before deducting the debts against the estate. Strickland v. Miles, 131 Ga. App. 300 , 205 S.E.2d 880 (1974) (decided under former Code 1933, § 113-1002).

Widow entitled to interest following delayed payment. - When a cash award of a year's support to a widow could not be paid until four years after the judgment, the widow was entitled to interest from the date of the judgment. Clark v. Georgia R.R. Bank & Trust Co., 182 Ga. 472 , 185 S.E. 716 (1936) (decided under former Code 1933, § 113-1002).

Inclusion of medical services in year's support authorized. - If the circumstances of the decedent, and the standing of decedent's family during decedent's lifetime, were such as to warrant reasonable medical attention to the wife, in the event such were necessary, if such medical services are required by the widow during the year following the death of the husband, the medical services should be considered in fixing the amount to be allowed her as a year's support. Walraven v. Walraven, 76 Ga. App. 713 , 47 S.E.2d 148 (1948) (decided under former Code 1933, § 113-1002).

Amount

Setting aside of whole estate valued in excess of $1,600.00. - Statute, which requires that the whole estate, when the estate's value is $1,600.00 or less, be set aside for a year's support, does not inhibit the setting aside of the whole estate when the estate's value exceeds $1,600.00, and the question of whether or not the amount set aside by the appraisers is excessive is one of fact solely for the determination of the jury. Edwards v. Addison, 187 Ga. 756 , 2 S.E.2d 77 (1939) (decided under former Code 1933, § 113-1002).

Theory of this statute is that the amount set aside be "a sufficiency from the estate for support and maintenance for the space of 12 months from the date of administration." Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).

Dependency. - Amount to be set apart for a year's support is governed in part by dependency. Driskell v. Crisler, 237 Ga. App. 408 , 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2 ).

Sufficiency estimated according to circumstances of family. - Year's support to a widow and children may be set apart from property of which their husband and father died possessed, the same to be either in property or money, and to be "a sufficiency from the estate for their support and maintenance for the space of 12 months . . . estimated according to the circumstances and standing of the family previous to the death" of their husband and father. Lang v. Hopkins, 10 Ga. 37 (1851) (decided under former Laws 1850, Cobb's 1851 Digest, p. 297); Cheney v. Cheney, 73 Ga. 66 (1884);(decided under former Code 1882, § 2571).

Other support available. - When the surviving wife had no other support available except welfare, which she had not sought, and her daughter's voluntary contributions from her own personal assets, such resources did not need to be weighed in the mix of the statute's contemplated "support available." Driskell v. Crisler, 237 Ga. App. 408 , 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2 ).

Whole amount allowed the widow should be sufficient to support and maintain the widow, including necessary medical service, in keeping with the circumstances and standing of the family previous to the death of the husband; due regard being had to the solvency of the estate. Walraven v. Walraven, 76 Ga. App. 713 , 47 S.E.2d 148 (1948) (decided under former Code 1933, § 113-1002).

Consideration of lifestyle prior to death. - Upon the trial of an issue formed by a caveat to the return of the appraisers setting aside a year's support, evidence of the size of the estate and amount of property owned by the wife individually during the lifetime of the husband is immaterial and irrelevant. Daniel v. First Nat'l Bank, 50 Ga. App. 632 , 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

An inquiry into the circumstances and standing of the family for the purpose of setting aside a year's support to the widow must be limited to the circumstances and standing of the family as affected by the estate of the deceased husband. Daniel v. First Nat'l Bank, 50 Ga. App. 632 , 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

Evidence was insufficient to establish the fact that a passenger automobile sold to a widow (a sharecropper) was a necessity of life, so as to make funds set aside to her and her minor children as a year's support subject to an execution for the balance due on the purchase price of the automobile. Rimes v. Graham, 199 Ga. 406 , 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).

In determining the year's support to be set apart for a beneficiary entitled to it, consideration should not be given to provision otherwise made for such beneficiary. Byrd v. Byrd, 223 Ga. 24 , 153 S.E.2d 422 (1967) (decided under former Code 1933, § 113-1002).

One-time purchases, repairs, and expenses. - Probate court was not forbidden by law to accommodate the need, in the year following testator's death, for one-time purchases, repairs, and expenses which would restore the testator's spouse's standard of living during marriage. Driskell v. Crisler, 237 Ga. App. 408 , 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2 ).

Evidence of "cruel treatment" of decedent by widow. - Probate court did not abuse the court's discretion in setting aside decedent's house and furnishings, where evidence of the widow's "cruel treatment" toward decedent was conflicting, and the mere fact that the court may have slightly miscalculated the widow's gross income or living expenses was of no consequence in light of the entire record. Bell v. Bell, 201 Ga. App. 218 , 411 S.E.2d 47 (1991) (decided under former O.C.G.A. § 53-5-2 ).

Medical expenses. - Provision for reasonable medical attention to the surviving spouse during the year following testator's death, when it is necessary and the circumstances and standing of the family before the death would warrant it, may be considered in fixing the amount of year's support. Driskell v. Crisler, 237 Ga. App. 408 , 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2 ).

A $10,000.00 award for a year's support was not contrary to law and evidence, nor arbitrary and grossly insufficient, since the trial court did not abuse the court's discretion in the manner in which the court applied the statutory year's support determination methods of subsections (b) and (c) of former O.C.G.A. § 53-5-2 . Baker v. Baker, 194 Ga. App. 477 , 390 S.E.2d 892 (1990) (decided under former O.C.G.A. § 53-5-2 ).

Time period considered in determining standard of living. - Court did not err in weighing into the balance the standard of living which the surviving wife was able to maintain during her marriage to the testator before the life-altering, terminal disability which deprived them both of their accustomed lifestyle since: (1) the statute does not limit consideration to the year before the death or any particular time other than "prior to the death of the testator or intestate"; (2) the right to year's support is founded on status, and the surviving wife enjoyed the status of spouse from 1972 to 1996; and (3) the court was not required to blind itself to the fact that the greatly reduced standard of living was occasioned by the very circumstance which rendered the surviving wife urgently needy in the 12 months subsequent to her husband's death. Driskell v. Crisler, 237 Ga. App. 408 , 515 S.E.2d 416 (1999) (decided under former O.C.G.A. § 53-5-2 ).

Since there was conflicting evidence as to the value of the widow's separate estate, the value of the property she was awarded as year's support, her needs, and her standard of living prior to her husband's death, the court did not abuse the court's discretion in making the award. McClure v. Mason, 228 Ga. App. 797 , 493 S.E.2d 16 (1997) (decided under former O.C.G.A. § 53-5-2 ).

Jury authorized to increase or decrease appraiser designated year's support. - When authorized by the pleadings and evidence in a trial de novo, the court should charge that the jury may find that the applicant is entitled to more or less than the appraisers designated as a reasonable year's support for the applicant. Hayes v. Hay, 92 Ga. App. 88 , 88 S.E.2d 306 (1955) (decided under former Code 1933, § 113-1002).

On the retrial of a case in the superior court, the return of the appraisers may be changed or modified as to the amount of property set apart. Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Jury's duty is to determine from the evidence how much would be a sufficiency from the estate for the widow's support and maintenance for the space of 12 months to be estimated according to the circumstances and standing of the family previous to the death and keeping in view also the solvency of the estate. Carter v. Carter, 139 Ga. App. 548 , 228 S.E.2d 708 (1976) (decided under former Code 1933, § 113-1002).

Jury authorized to make general estimate as to value of property. - Since it is not required that the specific property set aside as a year's support should be of any specific value, but only that it be a sufficiency, either in itself or when taken in connection with money, for the support of the applicants for one year, the jury, in setting aside specific property for a year's support, may, from the general nature and description of the property as it appears from the evidence, without any evidence otherwise as to its value, make a general estimate of the value of the property and determine its sufficiency as respects its value for a year's support. Daniel v. First Nat'l Bank, 50 Ga. App. 632 , 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

Valuation of property. - Verdict which sets aside as a year's support specifically designated property, each item of which is in the verdict specifically valued by the jury, together with a designated sum of money, is not, insofar as it estimates the value of the property set aside in a sum in excess of the estimated value of the same property contained in the return of the appraisers, invalid or without evidence to support it, in the absence of any evidence as to the value of the property. Daniel v. First Nat'l Bank, 50 Ga. App. 632 , 179 S.E. 152 (1935) (decided under former Code 1933, § 113-1002).

Court is not required in the court's written order to assign a monetary value to any property awarded. McClure v. Mason, 228 Ga. App. 797 , 493 S.E.2d 16 (1997) (decided under former O.C.G.A. § 53-5-2 ).

Support of the family of a deceased person should be paid out of the general funds of the estate, without regard or reference to the solvency or insolvency of the estate. Matthews v. Manhattan Life Ins. Co., 55 Ga. App. 204 , 189 S.E. 858 (1937) (decided under former Code 1933, § 113-1002).

Priority

Year's support is the highest claim against an estate, whether testate or intestate. Smith v. Sanders, 208 Ga. 405 , 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).

Among the necessary expenses of administration is the provision for the support of the family of the deceased, which can be accomplished only by an application for a year's support and for each year thereafter that the estate is kept together. White v. Wright, 211 Ga. 556 , 87 S.E.2d 394 (1955) (decided under former Code 1933, § 113-1002).

Year's support is on the same footing as expenses of administration, and is not subject to the law of distribution of estates or to debts against an estate, or liens against the property, except where it is made so by law. Robson v. Harris, 82 Ga. 153 , 7 S.E. 926 (1888) (decided under former Code 1882, § 2571); Tomlinson v. City of Adel, 169 Ga. 758 , 151 S.E. 482 (1930);(decided under former Civil Code 1910, § 4041).

Year's allowance is upon the footing of expenses of administration; indeed, a part of them. Smith v. Sanders, 208 Ga. 405 , 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).

A 12 months' support is not a debt, but is an encumbrance higher than a debt. Barron v. Burney, 38 Ga. 264 (1868) (decided under former Code 1863, § 2531); Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858 , 151 S.E. 796 (1930);(decided under former Civil Code 1910, § 4041).

Year's support is one of the necessary expenses of administration and is an encumbrance higher than any debt. Montgomery v. McCants, 49 Ga. App. 324 , 175 S.E. 397 (1934) (decided under former Code 1933, § 113-1002).

Vesting of year's support to exclusion of other debts. - Title to property set apart to a widow and child or children, in pursuance of the law, as a year's support for the family of the decedent, vests in the family to the exclusion of all debts, "except as otherwise specially provided" by law. Bank of Hampton v. Smith, 177 Ga. 532 , 170 S.E. 508 (1933) (decided under former Code 1933, § 113-1002).

Allowance of a year's support from property belonging to the husband's estate is to be taken as higher than any debt and is to be regarded as a part of expenses of administration. Tilley v. King, 193 Ga. 602 , 19 S.E.2d 281 (1942) (decided under former Code 1933, § 113-1002).

Although the law provides that the year's support is to be preferred above "all other debts," the provision for a year's support is not a debt at all, but is an encumbrance higher than any debt. Smith v. Sanders, 208 Ga. 405 , 67 S.E.2d 229 (1951) (decided under former Code 1933, § 113-1002).

Provision for the support of the family of the decedent is classed as one of the necessary expenses of administration, and is made for a class as a whole, and not for the benefit of one or some of that class. Ennis v. Ennis, 207 Ga. 665 , 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).

The year's support takes precedence even of taxes due the state. Tomlinson v. City of Adel, 169 Ga. 758 , 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4041).

Claim of a widow for a year's support is superior to legacies given by her husband in his will. Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Money set aside as a year's support cannot be subjected to the claim of creditors of the wife, other than those creditors who have provided or furnished the family with support or the necessities of life. Rimes v. Graham, 199 Ga. 406 , 34 S.E.2d 443 (1945) (decided under former Code 1933, § 113-1002).

Property received by the widow as a year's support is exempt from levy for any but debts created for her actual maintenance and support. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).

Property of a decedent may be sold free from a year's support only under the provisions of Ga. L. 1955, p. 731, § 1 by a sale or conveyance made under court order or under power contained in a will by the representative prior to the setting apart of such year's support. Knowles v. Knowles, 125 Ga. App. 642 , 188 S.E.2d 800 (1972) (decided under former Code 1933, § 113-1002).

Year's support superior to judgment for alimony. - While a judgment for alimony, payable in monthly installments of money, creating a special lien on land may not be classed as an ordinary debt, being more than such a debt, it is a debt within the meaning of the law, providing that a year's support to the family of the deceased shall be "preferred over all other debts." Wainwright v. Morrow, 180 Ga. 120 , 178 S.E. 155 (1935) (decided under former Code 1933, § 113-1002).

Priority status of year's support predicated on public policy. - Year's support set apart to a widow and minor children takes precedence, not only over debts due by the decedent, but even of taxes which are due the state; and this is based upon a sound public policy looking to the protection of widows and children out of the estate of a decedent for the space of 12 months, and until such time as they may provide support for the future. Tomlinson v. City of Adel, 169 Ga. 758 , 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4041).

Title of widow subordinate to prior lien. - When the decedent husband, under a foreclosure of his security deed, acquired title to the property subsequently set apart to his widow as a year's support, after the lien of a paving assessment had attached thereto, her title was subordinate to such lien of the city, and the court did not err in so holding. Paulk v. City of Ocilla, 188 Ga. 69 , 2 S.E.2d 642 (1939) (decided under former Code 1933, § 113-1002).

Year's support is superior to liens created by the decedent, or liens arising by operation of law during the decedent's ownership, except for purchase money. Tomlinson v. City of Adel, 169 Ga. 758 , 151 S.E. 482 (1930) (decided under former Civil Code 1910, § 4041).

While it is true that, except as to conveyances of title to secure debt, a year's support is superior to liens created by a decedent, or liens arising by operation of law during decedent's ownership, and the widow thus takes the interest of the decedent stripped of all such inferior claims, the title of the widow to the property set apart as a year's support is not superior to liens which had already adhered against the property before the decedent husband acquired the property. Paulk v. City of Ocilla, 188 Ga. 69 , 2 S.E.2d 642 (1939) (decided under former Code 1933, § 113-1002).

While a lien arising by operation of law after one's death could hardly be a "debt" within the purview of former Code 1933, § 113-1002, it may be a "claim against the estate" within the meaning of former Code 1933, § 113-1508. Johnson v. City of Blackshear, 196 Ga. 652 , 27 S.E.2d 316 (1943) (decided under former Code 1933, § 113-1002).

Management and Control

Widow, as the head of the family, is vested with the exclusive right to manage and control the property for the joint benefit of herself and minor children, and, after the marriage or majority of the children, for the benefit of herself alone for life, including the power to sell the entire interest in the property for such purpose. King v. King, 203 Ga. 811 , 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002); Tribble v. Knight, 238 Ga. 84 , 231 S.E.2d 68 (1976);(decided under former Code 1933, § 113-1002).

If necessary, the property awarded to a widow and minor child may be consumed or exhausted, and so long as it lasts it will be subject to exclusive use by the widow during her life, after the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500 , 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1002).

When realty is set aside as a year's support to a widow and three minor children, and all the minors have since attained their majority, the title is vested in them jointly, subject to the right of the widow to sell the entire interest for her maintenance and support. King v. King, 203 Ga. 811 , 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002).

When a year's support was set aside to the widow and three minor children jointly, the title thereto vested in them for their joint support and maintenance, and the other children had no interest therein. When the minor children married or attained their majority, the right of support and maintenance from the property set aside as a year's support belonged to the widow alone as long as she lives or the property lasted, and she was entitled to the property's use and control. She could sell the property for her maintenance and support. The children who have attained their majority have no right to participate in the property's consumption or its control. King v. King, 203 Ga. 811 , 48 S.E.2d 465 (1948) (decided under former Code 1933, § 113-1002).

Once the children attain their majority, title remains vested in them jointly, subject to the right of the widow to sell all or part of the property for her maintenance and support. Tribble v. Knight, 238 Ga. 84 , 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

Widow may maintain suit to control property. - Although property set aside as a year's support may have been set aside to the widow and minor children, the widow nevertheless has the right to control the property, and can, in her own name, maintain a suit in trover for the property's conversion. Philpot v. Ramsey & Hogan, 47 Ga. App. 635 , 171 S.E. 204 (1933) (decided under former Code 1933, § 113-1002).

Power of widow to encumber property restricted. - Although the Georgia cases have held that when there is a widow and no minor children, complete title vests in the widow, the cases nevertheless restrict her power to encumber her year's support unless for actual need for her maintenance. Davis v. Birdsong, 275 F.2d 113 (5th Cir. 1960) (decided under former Code 1933, § 113-1002).

Widow as quasi-trustee of minor children. - Under the right of the widow to dispose of property set apart for the support of herself and her minor children under her care, even without an order of court, she acts as the quasi-trustee of the minor children, who with herself are entitled to all of the support. She may thus not only lawfully sell, but lawfully execute a mortgage or security deed conveying the property to obtain funds for such support, or for the purpose of building or repairing a dwelling for herself and such children. Jones v. Federal Land Bank, 189 Ga. 419 , 6 S.E.2d 52 (1939) (decided under former Code 1933, § 113-1002).

Award to widow and minor children made in gross. - When an application for a year's support is made by a widow for herself and her minor child, the law contemplates that an award shall be made to such widow and minor child in gross, and not that awards shall be made to them separately; so that, although the legal title will vest in them share and share alike, the use of the entire property shall be a joint one for the support of both the mother and the child, and of neither to the exclusion of the other, so long as the widow lives and until the child marries or reaches majority. McCommons v. Reid, 201 Ga. 500 , 40 S.E.2d 73 (1946) (decided under former Code 1933, § 113-1002).

When property is set aside in gross, the widow and minor children become owners in common, and share equally in the title. Walden v. Walden, 191 Ga. 182 , 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).

Georgia law without doubt permits, and in some cases requires, separate portions of the estate to be set aside as a year's support to the widow and children of the deceased. Gale v. Stewart, 105 Ga. App. 767 , 125 S.E.2d 694 (1962) (decided under former Code 1933, § 113-1002).

Child is not divested of the child's interest upon reaching majority while the widow is alive or while any of the child's siblings are still minors, even though the child is not entitled to the control or possession of the property or to any support therefrom. Tribble v. Knight, 238 Ga. 84 , 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

Use and possession of a sui juris child's undivided interest is merely postponed to the child until the death of the widow and the reaching of age of majority of all the children. Tribble v. Knight, 238 Ga. 84 , 231 S.E.2d 68 (1976) (decided under former Code 1933, § 113-1002).

When all of the beneficiaries of a year's support cease to exist as such, - any of the property set aside which may be unconsumed belongs to them or their heirs in common. Walden v. Walden, 191 Ga. 182 , 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).

Testamentary disposition by widow of children's share prohibited. - While the widow is entitled, after the child or children reach majority, to the possession of the entire property for her support and maintenance, and has the right to sell the property for such purpose, this does not include the power to give the children's share of the property to another by will. Walden v. Walden, 191 Ga. 182 , 12 S.E.2d 345 (1940) (decided under former Code 1933, § 113-1002).

General Consideration

Cited in Cabrel v. Lum, 289 Ga. 233 , 710 S.E.2d 810 (2011).

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, § 2530, former Code 1933, § 113-1002, and former O.C.G.A. § 53-5-2 are included in the annotations for this Code section.

No one can become a beneficiary merely because he or she happens to be an heir at law of the deceased. Pullen v. Johnson, 173 Ga. 581 , 160 S.E. 785 (1931) (decided under former Civil Code 1910, § 4041).

Application Generally

1. In General

An application for a year's support is a suit in a court to recover a right. Nixon v. Nixon, 196 Ga. 148 , 26 S.E.2d 711 , answer conformed to, 69 Ga. App. 667 , 26 S.E.2d 722 (1943) (decided under former Code 1933, § 113-1002).

It is immaterial who makes the application required by statute for the 12 months' support for the family of the deceased, so that the representative of the deceased's estate has notice; therefore, such an application by the temporary administrator and the action of the ordinary (now probate judge) thereon is not void as against creditors. Mackie, Beattie & Co. v. Glendenning, 49 Ga. 367 (1873) (decided under former Code 1868, § 2530).

Widow who acts as executor may apply for year's support. Dunaway v. Clark, 536 F. Supp. 664 (S.D. Ga. 1982) (decided under former O.C.G.A. § 53-5-2 ).

For whom the widow may act. - In making the application for year's support the widow may act for herself and the minor children. Farmers Bank v. Williams, 188 Ga. 789 , 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002).

Repudiating judgments. - When widow applied for and was awarded a year's support for herself and her son from the probate court, she could not afterwards repudiate judgments which she secured for their own benefit. Sheffield v. Estate of Sheffield, 172 Ga. App. 469 , 323 S.E.2d 679 (1984) (decided under former O.C.G.A. § 53-5-2 ).

Denial of spouse's petition for year's support improper. - Probate court erred by allowing the objections of a bank and a decedent's parents solely on the basis of adverse title and by denying a year's support to the widow when the widow failed to meet the resulting burden of proof because the probate court lacked the jurisdiction under Ga. Const. 1983, Art. VI, Sec. III, Para. I and O.C.G.A. § 15-9-30 to determine that the relevant money-market account and real property were not part of the estate; despite the jurisdictional limitation and the lack of an appropriate objection, the probate court proceeded to conduct a hearing as to the amount necessary for the widow's support, thereby inappropriately placing upon the widow a burden of proof that was contrary to O.C.G.A. § 53-3-7(a) and otherwise lacking in the absence of the jurisdictionally defective objections to the petition. In re Mahmoodzadeh, 314 Ga. App. 383 , 724 S.E.2d 797 (2012).

2. Qualification of Minor Children for Beneficial Interest

Minor children must be named or described in application. - In order for minor children to take an interest in property set apart as a year's support, it should in some manner appear in the application that it is made in their behalf; and when it affirmatively appears that the application was made by the widow, and that minor children were not referred to therein by name or otherwise, they take no interest in the property set apart. Farmers Bank v. Williams, 188 Ga. 789 , 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002); Gale v. Stewart, 105 Ga. App. 767 , 125 S.E.2d 694 (1964);(decided under former Code 1933, § 113-1002).

Names or number of children need not appear in application for year's support. - In order for minor children to take an interest in the property set apart for year's support it is not necessary that their names appear in application therefore, nor does the fact that the number of the children was not set out affect their rights. Farmers Bank v. Williams, 188 Ga. 789 , 5 S.E.2d 195 (1939) (decided under former Code 1933, § 113-1002).

When one who is not mentioned in a year's support, either by name or description, that one can take no beneficial interest thereunder; however, it is not necessary that the names or number of the minor children appear in the proceeding for them to take an interest in the property set apart. Thus, the minor children take a beneficial interest in property set apart under a year's support proceeding in which a named "widow, and . . . minor children" are designated in various portions of the proceeding. Ennis v. Ennis, 207 Ga. 665 , 63 S.E.2d 887 (1951) (decided under former Code 1933, § 113-1002).

Year's support to minor child. - When plaintiff takes no beneficial interest in the property set aside to the widow, plaintiff is not barred, on account of the allowance to the widow, from obtaining a year's support as a minor child of the deceased. Gale v. Stewart, 105 Ga. App. 767 , 125 S.E.2d 694 (1962) (decided under former Code 1933, § 113-1002).

3. Independent Application by Excluded Persons

Person excluded from application for year's support may initiate independent proceeding. - When one person files an application for year's support, another person who is not mentioned in the application can take no beneficial interest in the result of the proceeding. In such a situation, an independent proceeding for year's support would be proper by the one excluded. Collins v. Collins, 110 Ga. App. 569 , 139 S.E.2d 459 (1964) (decided under former Code 1933, § 113-1002).

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-202, 113-204, and 113-205, and former O.C.G.A. §§ 53-2-21 and 53-2-23 are included in the annotations for this Code section.

Capacity to make a contract is not identical with the mental capacity necessary to make a valid will; a person with mental capacity less than that required to make a contract may have that degree of mental capacity necessary to make a valid will. Smith v. Davis, 203 Ga. 175 , 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-204).

Person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and by one who is capable of remembering generally the property subject to disposition and the persons related to that person by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. If the testator has sufficient intellect to enable the testator to have a decided and rational desire as to the disposition of the testator's property, this will suffice. Griffin v. Barrett, 183 Ga. 152 , 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205); Morgan v. Bell, 189 Ga. 432 , 5 S.E.2d 897 (1939); Fowler v. Fowler, 197 Ga. 53 , 28 S.E.2d 458 (1943) (decided under former Code 1933, § 113-204); Spivey v. Spivey, 202 Ga. 644 , 44 S.E.2d 224 (1947);(decided under former Code 1933, § 113-205);(decided under former Code 1933, § 113-205).

As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received; but when it is sought to establish testamentary incapacity by such evidence, it does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed. Anderson v. Anderson, 210 Ga. 464 , 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-204).

In order to execute a will it is necessary, as a minimum, that the testator have a rational desire as to the disposition of the testator's property. It takes a greater intellect to execute a deed. Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

While the fact that a person did or did not become insolvent, displease one's family, or become dependent as the result of signing a deed is not evidence of mental capacity, yet if his or her mental capacity was so impaired that he or she did not know at the time whether such would or could be the case, then such person would not have the capacity to make a will much less the capacity to execute a deed. Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

Testamentary capacity to change will. - Despite the fact that the testator was old and frail, the testator did not lack testamentary capacity to change the will, disinheriting the testator's son. Harper v. Harper, 274 Ga. 542 , 554 S.E.2d 454 (2001).

To establish incapacity in a grantor, one must be shown to have been, at the time, non compos mentis, in the legal acceptation of that term; which means not a partial but an entire loss of understanding. Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

Weak have the same rights as the prudent and strong-minded to dispose of their property by will, and anything less than a total absence of mind does not destroy that capacity. Griffin v. Barrett, 183 Ga. 152 , 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205).

Weak have the same rights as the strong-minded to dispose of their property by will, and anything less than a total absence of mind does not destroy that capacity. If the testator has sufficient intellect to enable the testator to have a rational desire as to the disposition of one's property, this is sufficient. The condition of the testator's mind at the time of the execution of the will determines whether the testator can make a valid will. Anderson v. Anderson, 210 Ga. 464 , 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-204); Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969);(decided under former Code 1933, § 113-204).

Terminal cancer patient capacity to execute wills while taking prescription medications. - When a testator, who had been diagnosed with terminal cancer, executed one will in February 2004 and another shortly before the testator's death in October 2004, there was sufficient evidence to support a jury's finding that the testator lacked testamentary capacity at the time the testator executed the October will; there was evidence that the testator was taking medication that had as possible side effects hallucination, disorientation, impaired mental performance, and confusion; that two days before the will was executed, the testator had difficulty completing sentences, was somewhat forgetful, and denied having siblings; and that on the day the will was executed, a witness, who described the testator as "morphined up," saw a beneficiary of the will repeatedly administer medicine to the testator via an eyedropper used to administer narcotics. Lillard v. Owens, 281 Ga. 619 , 641 S.E.2d 511 (2007).

Trial court was authorized to conclude that a decedent's will was invalid based on the decedent's lack of testamentary capacity under O.C.G.A. § 53-4-11 based on evidence that the decedent was confused and disoriented, did not recognize family members, and had a car accident after which doctors found the decedent was unable to make decisions personally. Burchard v. Corrington, 287 Ga. 786 , 700 S.E.2d 365 (2010).

Physical infirmities and weakness of intellect resulting from old age do not constitute mental incapacity to make a will, unless such weakness actually amounts to imbecility. Bailey v. Bailey, 204 Ga. 556 , 50 S.E.2d 617 (1948) (decided under former Code 1933, § 113-205).

Condition of the testator's mind at the time of the execution of the will determines whether or not the testator can make a valid will. Griffin v. Barrett, 183 Ga. 152 , 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205).

Impact of dementia. - In a will contest, it was error to grant propounders' motion for judgment notwithstanding the verdict as there was some evidence that the 95-year-old decedent lacked testamentary capacity, including expert testimony that the decedent suffered from some degree of dementia and testimony that the decedent appeared confused and spoke of deceased relations as if the relatives were alive. Mosley v. Warnock, 282 Ga. 488 , 651 S.E.2d 696 (2007).

Unreasonable disposition of property alone insufficient to prove testamentary incapacity. - An unnatural or unreasonable disposition of one's property is not of itself sufficient to justify a finding that a testator was lacking in testamentary capacity. Watkins v. Jones, 184 Ga. 831 , 193 S.E. 889 (1937) (decided under former Code 1933, § 113-205).

Reasonableness or unreasonableness of the disposition of a testator's estate has strong evidential value on the issue as to the testator's testamentary capacity and when the extent of the mental weakness is in doubt. Ellis v. Britt, 181 Ga. 442 , 182 S.E. 596 (1935) (decided under former Code 1933, § 113-205).

When to the probate of a will a caveat has been filed on the grounds of testamentary incapacity or undue influence, and there is doubt as to the extent of weakness of intellect, the reasonableness or unreasonableness of the disposition of the estate may be considered by the jury. In the trial of such issue the source from which the property disposed of by the will came into the decedent's possession may be shown. Shaw v. Fehn, 196 Ga. 661 , 27 S.E.2d 406 (1943) (decided under former Code 1933, § 113-205).

When, in probate proceeding, there is nothing in the testimony taken as a whole to support a finding that when the will was executed testator did not possess testamentary capacity, it was therefore erroneous to submit that issue to the jury. Brumbelow v. Hopkins, 197 Ga. 247 , 29 S.E.2d 42 (1944) (decided under former Code 1933, § 113-205).

On the propounding of a will, where the question is insanity, monomania, or undue influence, the unreasonableness of the disposition of the will is always a question to be considered by the jury. A reasonable disposition of property, without more, strongly indicates mental capacity to make a will. An unreasonable disposition of property may indicate a lack of mental capacity to make a will. It follows that a reasonable or unreasonable disposition of property, regardless of the nature of the insanity or inability alleged, should be given much consideration by the jury, if any doubt exists from the evidence as to the testator's ability to make the alleged will. Yarbrough v. Yarbrough, 202 Ga. 391 , 43 S.E.2d 329 (1947) (decided under former Code 1933, § 113-205).

The reasonableness, or unreasonableness of a will, while a legitimate subject of investigation by a jury in case of doubt as to the testator's capacity to make a will, is not to be considered until such a doubt has been first created by other evidence. Yarbrough v. Yarbrough, 202 Ga. 391 , 43 S.E.2d 329 (1947) (decided under former Code 1933, § 113-205).

Sufficient evidence of revocation of will. - Evidence presented at trial was sufficient for the trial court to find, as a matter of fact, that the decedent had the necessary mental capacity to revoke a 1988 will because the record showed that the relevant circumstances had changed significantly in the 16 years since the execution of the 1988 will, giving the decedent good reasons to want to revoke the old will such as several people listed in the 1988 will having died, including both of the co-executors named. Mosley v. Lancaster, 296 Ga. 862 , 770 S.E.2d 873 (2015).

Cited in Crow v. Whitworth, 170 Ga. 242 , 152 S.E. 445 (1930); Shankle v. Crowder, 174 Ga. 399 , 163 S.E. 180 (1932); Baucum v. Harper, 176 Ga. 296 , 168 S.E. 27 (1933); Martin v. Martin, 185 Ga. 349 , 195 S.E. 159 (1938); Peretzman v. Simon, 185 Ga. 681 , 196 S.E. 471 (1938); Orr v. Blalock, 195 Ga. 863 , 25 S.E.2d 668 (1943); Brazil v. Roberts, 198 Ga. 477 , 32 S.E.2d 171 (1944); Yarbrough v. Yarbrough, 202 Ga. 391 , 43 S.E.2d 329 (1947); Norman v. Hubbard, 203 Ga. 530 , 47 S.E.2d 574 (1948); Ehlers v. Rheinberger, 204 Ga. 226 , 49 S.E.2d 535 (1948); Lee v. Boyer, 217 Ga. 27 , 120 S.E.2d 757 (1961); English v. Shivers, 220 Ga. 737 , 141 S.E.2d 443 (1965); Powell v. Thigpen, 230 Ga. 760 , 199 S.E.2d 251 (1973); Bishop v. Kenny, 266 Ga. 231 , 466 S.E.2d 581 (1996).

Capacity to Contract versus Testamentary Capacity

Different capacities involved. - An incapacity to contract is not inconsistent with the capacity to make a will. Griffin v. Barrett, 183 Ga. 152 , 187 S.E. 828 (1936), later appeal, 185 Ga. 443 , 195 S.E. 746 (1938) (decided under former Code 1933, § 113-202).

Capacity to make a contract is not identical with the mental capacity necessary to make a valid will; a person with mental capacity less than that required to make a contract may have that degree of mental capacity necessary to make a valid will. Smith v. Davis, 203 Ga. 175 , 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-202).

It takes a greater quantum or higher degree of mentality to make a contract than it does to make a will. Anderson v. Anderson, 210 Ga. 464 , 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-202).

While the fact that a person did or did not become insolvent, displease one's family, or become dependent as the result of signing a deed is not evidence of mental capacity, yet if his or her mental capacity was so impaired that he or she did not know at the time whether such would or could be the case, then such person would not have the capacity to make a will, much less the capacity to execute a deed. Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

Person is insane when he or she is not possessed of mind and reason equal to a full and clear understanding of the nature and consequence of his or her act in making the contract. Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

In order to execute a will it is necessary, as a minimum, that the testator have a rational desire as to the disposition of one's property. It takes a greater intellect to execute a deed. Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

An incapacity to contract is not inconsistent with the capacity to make a will. Griffin v. Barrett, 183 Ga. 152 , 187 S.E. 828 (1936) (decided under former Code 1933, § 113-205).

Insane Persons

Insanity defined. - Person is insane when he or she is not possessed of mind and reason equal to a full and clear understanding of the nature and consequence of his or her act in making the contract. Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-204).

Issue of mental capacity to make a will is confined to the mental condition of the testator at the time the will was executed. Scott v. Gibson, 194 Ga. 503 , 22 S.E.2d 51 (1942) (decided under former Code 1933, § 113-204).

Not only may an insane person make a will during a lucid interval, but a person may be feeble and suffering from an illness that today might cause sufficient reason to be wanting, and yet tomorrow or at another time even in the same day sufficient reason (mental capacity) would be present. Scott v. Gibson, 194 Ga. 503 , 22 S.E.2d 51 (1942) (decided under former Code 1933, § 113-204).

Although evidence as to the mental capacity at a time prior or subsequent to the execution of the will may be shown to illustrate the condition of the testator's mind, still the controlling question to be determined, when testamentary capacity is the issue, is whether the testator had sufficient testamentary capacity at the time of executing the will. Spivey v. Spivey, 202 Ga. 644 , 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-204).

To make one incapable of making a will from insanity there must be a "total deprivation of reason." However old, feeble, weak-minded, capricious, or notionate one may be, if one "be able to have a decided and rational desire as to the disposition of his property," one is not wanting in testamentary capacity. Spivey v. Spivey, 202 Ga. 644 , 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-205).

Delusions have to be insane to deprive one of testamentary capacity. - In a dispute concerning the distribution of the decedent's estate, the evidence was legally insufficient to sustain the verdict finding that the decedent lacked testamentary capacity because there was no evidence that the decedent lacked the ability to form a decided and rational desire as to the disposition of the decedent's property; and the caveators expressly disclaimed that the decedent was insane or suffered from monomania, and, instead, they merely argued that the decedent suffered from delusions; however, the caveators' claim nevertheless failed as the case law was clear that not every delusion deprived one of testamentary capacity, rather, it had to be an insane delusion, but none of the decedent's delusions were insane ones. Meadows v. Beam, 302 Ga. 494 , 807 S.E.2d 339 (2017).

Testamentary capacity of epileptic. - An epileptic, when not in the throes of an attack of epilepsy, is not less capacitated than a lunatic in a lucid interval, and it is well settled law that a lunatic during a lucid interval may make a will. Anderson v. Anderson, 210 Ga. 464 , 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-204).

Intellect Necessary for Testamentary Capacity

When testamentary capacity is the issue, it must be determined by the condition of the mind at the time of the execution of the will. Hill v. Deal, 185 Ga. 42 , 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

To establish incapacity in a grantor, the grantor must be shown to have been, at the time, non compos mentis, in the legal acceptation of that term; which means not a partial but an entire loss of understanding. Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969) (decided under former Code 1933, § 113-202).

When, in a probate proceeding, there is nothing in the testimony taken as a whole to support a finding that when the will was executed testator did not possess testamentary capacity, it was erroneous to submit that issue to the jury. Brumbelow v. Hopkins, 197 Ga. 247 , 29 S.E.2d 42 (1944) (decided under former Code 1933, § 113-202).

Law does not withhold from the aged, the feeble, the weak-minded, the capricious, or the notionate, the right to make a will, provided such person has a decided and rational desire as to the disposition of one's property. Hill v. Deal, 185 Ga. 42 , 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

Weak have the same rights as the strong-minded to dispose of their property by will, and anything less than a total absence of mind does not destroy that capacity. If the testator has sufficient intellect to enable the testator to have a rational desire as to the disposition of the testator's property, this is sufficient. The condition of the testator's mind at the time of the execution of the will determines whether the testator can make a valid will. Anderson v. Anderson, 210 Ga. 464 , 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-202); Joiner v. Joiner, 225 Ga. 699 , 171 S.E.2d 297 (1969);(decided under former Code 1933, § 113-202).

"Decided" means a mental capacity to frame a desire that is certain, or with distinct limits, and "rational" means that the desire must be consistent with reason. Spivey v. Spivey, 202 Ga. 644 , 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-202).

"Decided" does not connote stubbornness, or even mental strength; it simply means that the mind must have capacity enough to frame a desire that is certain, or one that has distinct limits. Hill v. Deal, 185 Ga. 42 , 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

To be rational does not mean that the desire must spring from a strong intellect, but that it is consistent with reason. Hill v. Deal, 185 Ga. 42 , 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

Attention is to be given, not so much to the abstract state of the mind, as to the mind's capacity for the precise thing in hand. For a man may say and do things which a medical man would take as evidence of insanity, and yet it may be that one is nevertheless able to have a decided rational desire as to the disposition of one's property. Hill v. Deal, 185 Ga. 42 , 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202); Spivey v. Spivey, 202 Ga. 644 , 44 S.E.2d 224 (1947);(decided under former Code 1933, § 113-202).

Understanding nature of testament. - Person has testamentary capacity who understands the nature of a testament or will, viz., that is a disposition of property subject to disposition and the persons related to the person by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. Griffin v. Barrett, 183 Ga. 152 , 187 S.E. 828 (1936) (decided under former Code 1933, § 113-202); Morgan v. Bell, 189 Ga. 432 , 5 S.E.2d 897 (1939); Spivey v. Spivey, 202 Ga. 644 , 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-202);(decided under former Code 1933, § 113-202).

Condition of the testator's mind at the time of the execution of the will determines whether or not the testator can make a valid will. Griffin v. Barrett, 183 Ga. 152 , 187 S.E. 828 (1936) (decided under former Code 1933, § 113-202).

Though, as tending to illustrate the condition of the mind, evidence may be received as to what was the mental capacity at a prior or a subsequent time, yet if it be certain from all the testimony that at the time of the execution of the instrument there was no want of testamentary capacity, the instrument offered will not be refused probate on the ground of lack of sound and disposing mind and memory. Hill v. Deal, 185 Ga. 42 , 193 S.E. 858 (1937) (decided under former Code 1933, § 113-202).

Schizophrenia patient had knowledge about nature and extent of estate. - In a probate case, when the decedent was diagnosed with schizophrenia in 1973, the probate court did not err in denying the sister's caveat and in admitting the will to probate as the decedent did not lack testamentary capacity because the decedent had enough knowledge about the nature and extent of the decedent's estate to sustain a finding that the decedent had a decided and rational desire as to the disposition of the decedent's property; the medical records reflected that the decedent's state of mind improved close in time to the execution of the will; and, even if there was some evidence that the decedent was not lucid at times, the record did not demand a finding that the decedent was not lucid when the decedent executed the will. Webb v. Reeves, 299 Ga. 760 , 791 S.E.2d 35 (2016).

Monomaniacs

Monomania defined. - Monomania exists when one, because of partial insanity, becomes imbued with an hallucination or delusion that something extravagant exists which has no existence whatever, and is incapable of being permanently reasoned out of that conception. Moreland v. Word, 209 Ga. 463 , 74 S.E.2d 82 (1953) (decided under former Code 1933, § 113-204).

Monomania distinguished from sane desires. - Monomania is a mental disease; an insane delusion such as will deprive one of testamentary capacity. Monomania must be distinguished from an expressed desire to exclude a person from a will because of ill will, bad judgment, animosity, prejudice, or other conditions of mind which can be coexistent with sanity. Russell v. Fulton Nat'l Bank, 248 Ga. 421 , 283 S.E.2d 879 (1981) (decided under former Code 1933, § 113-204).

Showing of hallucinations or insane delusions is essential to proving monomania. Hammett v. Reynolds, 243 Ga. 669 , 256 S.E.2d 354 (1979) (decided under former Code 1933, § 113-204).

Testator's belief that a spouse had been intimate with another does not amount to an insane delusion so as to constitute monomania. Hammett v. Reynolds, 243 Ga. 669 , 256 S.E.2d 354 (1979) (decided under former Code 1933, § 113-204).

Mental incapacity due to monomania directed toward parent. - When caveat to application to probate a will brought by child of testator alleged mental incapacity due to monomania, the evidence showing that the testator had without cause maintained an antagonistic attitude toward caveator even before she was born, by physical attacks upon her mother, and continued numerous acts of cruelty toward the caveator for about 30 years, and the substance of this voluminous evidence was stated as a basis for a hypothetical question which was propounded to a psychiatrist, and upon which the psychiatrist gave the opinion answer that the testator suffered monomania as to the caveator, there was a conflict in the evidence rendering it reversible error to direct a verdict in favor of the propounder of the will. Duncan v. Mayfield, 209 Ga. 882 , 76 S.E.2d 805 (1953) (decided under former Code 1933, § 113-204).

Monomania not shown. - Evidence of the testator's lack of trust of her daughter and her daughter's companion, and concern that the companion was taking advantage of her daughter, was not sufficient to establish monomania. Joseph v. Grisham, 267 Ga. 677 , 482 S.E.2d 251 (1997) (decided under former O.C.G.A. § 53-2-23 ).

Pleading and Practice

Burden is on the propounder to show the factum of the will, free and voluntary action, and apparent testamentary capacity, and when this is shown, together with the presumption of testamentary capacity which exists in the absence of proof, a prima facie case for the propounder is made out. Franklin v. First Nat'l Bank, 187 Ga. 268 , 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

When the witnesses, both for the propounder and the caveator, testified to the effect that the deceased had perfectly normal periods up until a very short time before death, almost all the facts relied upon to establish the mental incapacity of the deceased occurred after the will was executed, most of them very shortly before death, the only doctor who testified said that the next year after the will was executed the deceased was perfectly normal, and on the date the will was executed, the deceased went to the office of the deceased's attorney and in a perfectly intelligent manner furnished the information for the preparation of the will, all of the subscribing witnesses testifying that the deceased was perfectly normal the day the will was executed, the evidence was not sufficient to carry the burden placed by law upon the caveator. Orr v. Orr, 208 Ga. 431 , 67 S.E.2d 209 (1951) (decided under former Code 1933, § 113-202).

Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of the will's execution the testator apparently had sufficient mental capacity to make the will, and, in making the will, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator. Cornelius v. Crosby, 243 Ga. 26 , 252 S.E.2d 455 (1979) (decided under former Code 1933, § 113-202).

While the presumption in favor of testamentary capacity exists, the presumption alone is not sufficient to make out for the propounder a prima facie case. Franklin v. First Nat'l Bank, 187 Ga. 268 , 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

There is no less reason to presume sane action in the execution of a will than in other instances of human relations and conduct. Franklin v. First Nat'l Bank, 187 Ga. 268 , 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Presumption favoring testamentary capacity is necessarily a rebuttable presumption, and the capacity of the testator is always a proper subject of inquiry. Franklin v. First Nat'l Bank, 187 Ga. 268 , 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Cross examination on effect of wills in terrorem clause. - In a will contest, the caveator was properly prevented from cross-examining the executor as to the effect of the will's in terrorem clause as the uncontroverted testimony showed that the testator was of sound mind and was not influenced by the desires of others, and evidence as to the effect of the forfeiture provision would not have been probative of either undue influence or the lack of testamentary capacity. Caswell v. Caswell, 285 Ga. 277 , 675 S.E.2d 19 (2009).

Inquiry into peculiar circumstances required. - Law, in its zealousness always to safeguard the rights of a deceased testator, although presuming testamentary capacity, deems it wise not to rely solely upon that presumption, but to make inquiry into the immediate circumstances of the execution of the will from those who were present at the time. Franklin v. First Nat'l Bank, 187 Ga. 268 , 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Charge that the presumption is always in favor of a mental capacity to make a will, where elsewhere in the charge the jury was instructed that the burden was on the propounder to establish the factum of the will, that it was freely and voluntarily made, and that the testator apparently had sufficient mental capacity to make a will, as a prerequisite to the making out by the propounder of a prima facie case was not error. Franklin v. First Nat'l Bank, 187 Ga. 268 , 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

Evidence of testator's mental condition at times other than the signing of the will does not controvert positive testimony of subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed. Russell v. Fulton Nat'l Bank, 248 Ga. 421 , 283 S.E.2d 879 (1981) (decided under former Code 1933, § 113-202).

Trial court properly denied a granddaughter's motion for judgment notwithstanding the verdict following a jury verdict upholding the last will and testament of her grandmother giving the bulk of her estate to her grandson because a videotape of the execution of the will, the will's witnesses, and other evidence established the grandmother's testamentary capacity. Patterson-Fowlkes v. Chancey, 291 Ga. 601 , 732 S.E.2d 252 (2012).

Affidavit of neurologist found sufficient to create issue of fact as to testamentary capacity. Baldwin v. First Tenn. Bank, 251 Ga. 561 , 307 S.E.2d 919 (1983) (decided under former O.C.G.A. § 53-2-21 ).

Relevancy of prior wills. - In a will contest action, the trial court did not abuse the court's discretion in admitting the three wills executed by the decedent as the wills were relevant to the issue of whether the trust agreement that was executed was a result of undue influence and the objector expressly conceded at the end of trial that the decedent's capacity to execute the trust agreement and related deeds was no longer an issue before the jury. Horton v. Hendrix, 291 Ga. App. 416 , 662 S.E.2d 227 (2008), cert. denied, No. S08C1574, 2008 Ga. LEXIS 780 (Ga. 2008).

For charge defining testamentary capacity, see Manley v. Combs, 197 Ga. 768 , 30 S.E.2d 485 (1944) (decided under former Code 1933, §§ 113-202, 113-205).

Sanity or insanity is a proper subject for opinion evidence. Espy v. Preston, 199 Ga. 608 , 34 S.E.2d 705 (1945) (decided under former Code 1933, § 113-202).

Testimony as to mental status is necessarily opinionative, and the law requires that before a will can be probated, the subscribing witnesses shall be inquired of as to apparent capacity or noncapacity; the fact that a witness witnesses a will qualifies the witness to give an opinion on that subject. Franklin v. First Nat'l Bank, 187 Ga. 268 , 200 S.E. 679 (1938) (decided under former Code 1933, § 113-202).

When there is conflicting evidence as to testamentary capacity to make a will, and sufficient evidence to establish the absence of testamentary capacity, the verdict of the jury finding in favor of the caveat will not be set aside on the ground that there is lack of evidence to support the verdict. Manley v. Combs, 197 Ga. 768 , 30 S.E.2d 485 (1944) (decided under former Code 1933, § 113-202).

While ordinarily the sufficiency of the reasons given by witnesses for their opinions as to a person's sanity or insanity cannot be determined as a matter of law by the court, but is a question for the jury, yet, where it plainly and indisputably appears that the reasons are insufficient, the court may on review so hold as a matter of law. Espy v. Preston, 199 Ga. 608 , 34 S.E.2d 705 (1945) (decided under former Code 1933, § 113-202).

When there was no testimony of any expert witnesses showing or tending to show mental incapacity of the testator, and the testimony of every nonexpert witness to that effect was based on acts, conduct, and sayings of the testator which did not within themselves show mental incapacity to make a will, such testimony was therefore insufficient to support a verdict finding for the caveators. Espy v. Preston, 199 Ga. 608 , 34 S.E.2d 705 (1945) (decided under former Code 1933, § 113-202).

When the testimony of both expert and nonexpert witnesses was insufficient to overcome the positive testimony of two of the subscribing witnesses, the testimony of the other subscribing witness being inconclusive, that at the time the will was executed the testator apparently had testamentary capacity, the evidence demanded a verdict in favor of the propounder. Spivey v. Spivey, 202 Ga. 644 , 44 S.E.2d 224 (1947) (decided under former Code 1933, § 113-202).

As tending to illustrate the mental condition at that time, evidence of such condition at other times may be received; but when it is sought to establish testamentary incapacity by such evidence, it does not controvert the positive testimony of the subscribing witnesses unless it would be proof of testamentary incapacity at the time the will was signed. Anderson v. Anderson, 210 Ga. 464 , 80 S.E.2d 807 (1954) (decided under former Code 1933, § 113-202).

When two subscribing witnesses give positive testimony that testator had testamentary capacity at the time the will was executed, evidence of testator's mental condition at times other than the signing of the will will not controvert the positive testimony of the subscribing witnesses unless it is proof of testamentary incapacity at the time the will was signed. Yuzamas v. Yuzamas, 241 Ga. 577 , 247 S.E.2d 73 (1978) (decided under former Code 1933, § 113-202).

Charge that "an insane person generally may make a will" is clearly an erroneous statement of the law. Milam v. Terrell, 214 Ga. 199 , 104 S.E.2d 219 (1958) (decided under former Code 1933, § 113-204).

General rule is that a charge on legal principles must be adjusted to the pleadings and the evidence; hence when there was no evidence which would have authorized a verdict on the issue of monomania (because of testator's belief that beneficiary was the testator's illegitimate son) the failure to charge on that subject was not error. Smith v. Davis, 203 Ga. 175 , 45 S.E.2d 609 (1947) (decided under former Code 1933, § 113-204).

Existence of monomania is question for jury. - When all that the testimony of the witnesses for the caveator amounted to was that the testator was highly eccentric and that the testator had delusional ideas that people were trying to harm the testator, and the uncontroverted evidence showed that the testator not only conducted the testator's brokerage business while a patient in a mental institution, but that the testator continued to conduct the business until the testator's death approximately two years after execution of the will, and that the testator was not suffering from monomania about the testator's money, the caveator did not carry the burden of proving lack of testamentary capacity. Beman v. Stembridge, 211 Ga. 274 , 85 S.E.2d 434 (1955) (decided under former Code 1933, § 113-204).

Question of whether the beliefs harbored by the testator were insane delusions springing from a disordered intellect, or merely illogical deductions from actual facts, was a question for the jury. Johnson v. Dodgen, 244 Ga. 422 , 260 S.E.2d 332 (1979) (decided under former Code 1933, § 113-204).

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3834, former Code 1933, §§ 113-208 and 113-209, and former O.C.G.A. 53-2-6 are included in the annotations for this Code section.

Purpose of undue influence rule. - The undue influence rule not only does not challenge the right of the citizen to make a will, but contemplates added protection of that right, and works destruction to any disposition by will and testament of property by any person other than the person entitled to make disposition thereof. Franklin v. First Nat'l Bank, 187 Ga. 268 , 200 S.E. 679 (1938) (decided under former Code 1933, § 113-208).

Freedom of volition essential for valid will. - Anything which destroys freedom of volition invalidates a will, such as fraudulent practices or any undue influence whereby the will of another is substituted for the wishes of the testator. Crow v. Whitworth, 170 Ga. 242 , 152 S.E. 445 (1930) (decided under former Civil Code 1910, § 3834).

Cited in Boyles v. Morgan, 168 Ga. 804 , 149 S.E. 149 (1929); Scott v. Wimberly, 188 Ga. 148 , 3 S.E.2d 71 (1939); Moreland v. Word, 209 Ga. 463 , 74 S.E.2d 82 (1953); Northwestern Univ. v. Crisp, 211 Ga. 636 , 88 S.E.2d 26 (1955); Kellar v. Edwards, 214 Ga. 633 , 106 S.E.2d 787 (1959); Lee v. Boyer, 217 Ga. 27 , 120 S.E.2d 757 (1961); Sweat v. Hughes, 219 Ga. 703 , 135 S.E.2d 409 (1964); Akin v. Patton, 235 Ga. 51 , 218 S.E.2d 802 (1975); Cames v. Joiner (In re Joiner), 319 Bankr. 903 (Bankr. M.D. Ga. 2004); Mosley v. Lancaster, 296 Ga. 862 , 770 S.E.2d 873 (2015).

Essential Elements of Undue Influence

Time of submission of will for probate cannot be basis for undue influence. - Fact that the propounder may have submitted will for probate sooner than might seem appropriate under the proprieties cannot be said to have any bearing upon the question as to whether or not the instrument was procured under undue influence at the time of its execution. Ehlers v. Rheinberger, 204 Ga. 226 , 49 S.E.2d 535 (1948), for comment, see 11 Ga. B.J. 348 (1949) (decided under former Code 1933, § 113-208).

What constitutes undue influence. - Undue influence, to invalidate a will, must amount to force or fear and must, in effect, make the will the mental offspring of some other person, and be operative on the mind of the testator at the time the will is executed. It must destroy the free agency of the testator and constrain the testator to do what is against the testator's will, but what the testator is unable to refuse. Trust Co. v. Ivey, 178 Ga. 629 , 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208); Crews v. Crews, 219 Ga. 459 , 134 S.E.2d 27 (1963);(decided under former Code 1933, § 113-208).

Undue influence in procuring a will to be made must amount to moral coercion; it must destroy the free agency of the testator and constrain the testator to do what is against the testator's will but which the testator is unable to refuse. Griffin v. Barrett, 183 Ga. 152 , 187 S.E. 828 (1936), later appeal, 185 Ga. 443 , 195 S.E. 746 (1938) (decided under former Code 1933, § 113-208).

The undue influence which the law contemplates as a ground to invalidate a properly executed will must be such as amounts to fraud, deceit, force, or coercion, destroying the testator's free agency. It must also be operative at the time the will is executed, and not merely at some other time. Boland v. Aycock, 191 Ga. 327 , 12 S.E.2d 319 (1940) (decided under former Code 1933, § 113-208).

Undue influence or fraud, to invalidate the will, must amount to force or fear and must, in effect, make the will the mental offspring of some other person, and must be operative on the mind of the testator at the time the will is executed. Butler v. Lashley, 197 Ga. 461 , 29 S.E.2d 508 (1944) (decided under former Code 1933, § 113-208).

Undue influence which operates to invalidate a will is such influence as amounts either to deception, or to force and coercion, destroying free agency. Butler v. Lashley, 197 Ga. 461 , 29 S.E.2d 508 (1944) (decided under former Code 1933, § 113-208); Ehlers v. Rheinberger, 204 Ga. 226 , 49 S.E.2d 535 (1948); Morgan v. Ivey, 222 Ga. 850 , 152 S.E.2d 833 (1967), for comment, see 11 Ga. B.J. 348 (1949) (decided under former Code 1933, § 113-208); Sauls v. Estate of Avant, 143 Ga. App. 469 , 238 S.E.2d 564 (1977) (decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

To be sufficient to invalidate a will on the ground of undue influence, the evidence must show that such influence amounted to fear, force, overpersuasion, or coercion, to the extent of destroying the free agency and will power of the testator, and in effect made the will the mental offspring of another; and it must be shown that the undue influence was operative on the mind of the testator at the time the will was actually executed and published. Bailey v. Bailey, 204 Ga. 556 , 50 S.E.2d 617 (1948) (decided under former Code 1933, § 113-208); Sweat v. Hughes, 219 Ga. 703 , 135 S.E.2d 409 (1964);(decided under former Code 1933, § 113-208).

Undue influence in procuring a will may exist in many forms, and it may be operated through diverse channels; the existence and effective power of undue influence is not always susceptible of direct proof, but may be proved by circumstantial evidence. Stephens v. Brady, 209 Ga. 428 , 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-208).

Such influence that is obtained by flattery, importunity, superiority of will, mind, or character, which would give dominion over the will to such an extent as to destroy free agency, or constrain one to do against one's will what one is unable to refuse, such is the kind of influence which the law condemns as undue. Sauls v. Estate of Avant, 143 Ga. App. 469 , 238 S.E.2d 564 (1977) (decided under former Code 1933, § 113-208).

There can be no fatally undue influence without a person incapable of protecting oneself as well as a wrongdoer to be resisted. Morgan v. Ivey, 222 Ga. 850 , 152 S.E.2d 833 (1967) (decided under former Code 1933, § 113-208); Sauls v. Estate of Avant, 143 Ga. App. 469 , 238 S.E.2d 564 (1977);(decided under former Code 1933, § 113-208).

Undue influence must exist at time of execution of will. - Evidence of undue influence over the mind and will of the testator at another time will not invalidate a will. Only such influence which exists at the time of the purported will's execution destroys the testator's freedom of volition so as to invalidate a will. Crews v. Crews, 219 Ga. 459 , 134 S.E.2d 27 (1963) (decided under former Code 1933, § 113-208).

It must be shown that the undue influence was operative on the mind of the testator at the time the will was actually executed and published. Morgan v. Ivey, 222 Ga. 850 , 152 S.E.2d 833 (1967) (decided under former Code 1933, § 113-208); Sauls v. Avant, 143 Ga. App. 469 , 238 S.E.2d 564 (1977);(decided under former Code 1933, § 113-208).

For undue influence to be a proper ground of caveat, it must exist at the time of the will's execution. Pendley v. Pendley, 251 Ga. 30 , 302 S.E.2d 554 (1983) (decided under former O.C.G.A. § 53-2-6 ).

Undue influence exercised prior to execution of the paper may continue to operate on the mind of the testator until the paper is actually executed; and if upon account thereof the testator executes a paper in which the will of the person exercising the influence is substituted for that of the testator, the paper will be void, though the influence commenced at an antecedent date. Trust Co. v. Ivey, 178 Ga. 629 , 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).

Undue influence of wife may continue subsequent to death of wife. - If the undue influence was exercised by a wife, the effect thereof may have continued after her death and may have been operative upon her husband at the time he executed the paper shortly after her death. Trust Co. v. Ivey, 178 Ga. 629 , 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).

Undue influence is a question of fact requiring jury consideration. - It cannot be said as a matter of law that undue influence shown to have been exerted by the wife was not operative upon the husband at the time he executed his will, where the wife died only a short time before the paper was executed. Trust Co. v. Ivey, 178 Ga. 629 , 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).

Mere absence of direct evidence and circumstances showing that the propounder practiced fraud or undue influence at or about the time the last will was executed did not demand a finding in favor of the propounder since there was evidence, direct and circumstantial, from which the jury could have drawn the conclusion that the last will as executed by the testator resulted from prior fraud and undue influence practiced by the propounder upon the testator, and that these prior actions of the propounder controlled the mind of the testator at the time the testator executed the last will. Stephens v. Brady, 209 Ga. 428 , 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-208).

Trial court properly denied the motions for a directed verdict and for a judgment notwithstanding the verdict filed by the executors of a will and trust because there was sufficient evidence to support the jury's finding that the documents were invalid as a product of undue influence based on the executors taking complete control of the elderly testator and isolating the testator from the testator's sons, as well as substituting desires and having the testator sign a new will and trust, which benefitted the executors and excluded the testator's wife and sons. Davison v. Hines, 291 Ga. 434 , 729 S.E.2d 330 (2012).

Will propounder was not entitled to a directed verdict in a will caveat as the evidence established a question for the jury on the issue of undue influence because there was more than merely an opportunity for the propounder to influence the testator; there was also evidence of the testator's diminished mental faculties and an established confidential relationship between the propounder and the testator. Odom v. Hughes, 293 Ga. 447 , 748 S.E.2d 839 (2013).

No undue influence when attorney not agent of propounder. - When attorney who drafted the will was not an agent of the propounder, and since no agent of the propounder was present when the will was executed, an inference is assumed that there was no undue influence at the crucial time of execution. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847 , 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596 , 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-2-6 ).

Fraud

Fraud is a distinct head of objection to the validity of a will, from importunity and undue influence; usually they are the very opposites of each other. Both are equally destructive of the validity of a will. Stephens v. Brady, 209 Ga. 428 , 73 S.E.2d 182 (1952) (decided under former Code 1933, §§ 113-208, 113-209).

Fraud, to invalidate a will, must amount to force or fear and must, in effect, make the will the mental offspring of some other person, and must be operative on the mind of the testator at the time the will is executed. Butler v. Lashley, 197 Ga. 461 , 29 S.E.2d 508 (1944) (decided under former Code 1933, § 113-209).

Fraud must affect testator's plan in making will. - There was no fraud when the basis for such claim was the attorney's failure to inform testator as to the powers and fees of an executor, matters which did not affect the testator's plan in making the testator's will. Yancey v. Hall, 265 Ga. 466 , 458 S.E.2d 121 (1995) (decided under former Code 1933, § 113-209).

Trial court properly granted a will beneficiary summary judgment on the issue of fraud because there was no evidence in the record that would create a genuine issue of material fact as to fraud since the alleged two misrepresentations were not shown to have been relied upon by the testator when the will was created. Johnson v. Burrell, 294 Ga. 301 , 751 S.E.2d 301 (2013).

Representations of infidelity sufficient to raise presumption of fraud. - For one to represent to a wife that her husband is unfaithful to his marital vows, and giving to another the love and affection due his wife, whether the representation of infidelity be true or false, is likely to strongly influence her in the disposition of the property she may leave; hence, the evidence on behalf of the caveators was sufficient on the issue of fraud to have gone to the jury. Stephens v. Brady, 209 Ga. 428 , 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-209).

Effect of fraud practiced prior to execution of will. - Mere absence of direct evidence and circumstances showing that the propounder practiced fraud at or about the time the last will was executed did not demand a finding in favor of the propounder where there was evidence, direct and circumstantial, from which the jury could have drawn the conclusion that the last will as executed by the testator resulted from prior fraud practiced by the propounder upon the testator, and that these prior actions of the propounder controlled the mind of the testator at the time the testator executed the last will. Stephens v. Brady, 209 Ga. 428 , 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-209).

Fraud established. - There was sufficient evidence to support the jury's finding that a testator's will was procured by fraud because the propounder and the propounder's wife encouraged the caveator and the caveator's spouse to go on vacation, and they embarked on a campaign to convince the testator that the caveator had stolen all the testator's money, left the testator broke, and abandoned the testator; those were misrepresentations, but the misrepresentations worked because the testator changed the testator's will to disinherit the caveator completely, and as a result of those misrepresentations, the testator went into the meeting with the attorney who drafted the will intending to leave the testator's entire estate to the propounder, and the testator would have done so were it not for the attorney's suggestion that the testator leave something to the caveator's children, who were the testator's grandchildren. McDaniel v. McDaniel, 288 Ga. 711 , 707 S.E.2d 60 (2011).

Pleading and Practice

1. In General

Burden of proof shifts to caveator when prima facie case made by propounder of will. - Upon the trial of an issue arising upon the propounding of a will and a caveat thereto, the burden, in the first instance, is upon the propounder of the alleged will to make out a prima facie case, by showing the factum of the will and that at the time of the will's execution the testator apparently had sufficient mental capacity to make the will, and, in making the will, acted freely and voluntarily. When this is done, the burden of proof shifts to the caveator. Cornelius v. Crosby, 243 Ga. 26 , 252 S.E.2d 455 (1979) (decided under former Code 1933, § 113-208).

Cross examination of executor on effect of in terrorem. - In a will contest, the caveator was properly prevented from cross-examining the executor as to the effect of the will's in terrorem clause as the uncontroverted testimony showed that the testator was of sound mind and was not influenced by the desires of others, and evidence as to the effect of the forfeiture provision would not have been probative of either undue influence or the lack of testamentary capacity. Caswell v. Caswell, 285 Ga. 277 , 675 S.E.2d 19 (2009).

Jury question as to undue influence. - It is for the jury to say under the circumstances, whether undue influence has been exercised. Bryan v. Norton, 245 Ga. 347 , 265 S.E.2d 282 (1980) (decided under former Code 1933, § 113-208).

It is reversible error to charge on undue influence when there is no evidence to show that undue influence was exerted upon a testator, resulting in the testator making the will. Orr v. Blalock, 195 Ga. 863 , 25 S.E.2d 668 (1943) (decided under former Code 1933, § 113-208).

2. Proof

Requirements for rebuttable presumption of undue influence. - In order to give rise to the rebuttable presumption that a will is the void product of undue influence, the evidence must show a confidential relationship wherein the primary beneficiary was capable of exerting the power of leadership over the submissive testator. Crumbley v. McCart, 271 Ga. 274 , 517 S.E.2d 786 (1999).

Use of circumstantial evidence permissible as proof of undue influence. - Undue influence in procuring a will may exist in many forms, and it may be operated through diverse channels; the existence and effective power of undue influence is not always susceptible of direct proof and undue influence may be proved by circumstantial evidence. Stephens v. Bonner, 174 Ga. 128 , 162 S.E. 383 (1932) (decided under former Civil Code 1910, § 3834).

Very wide range of testimony is permissible on the issue of undue influence, due to the fact that it seldom can be shown except by circumstantial evidence. It results from the circumstances and surroundings of the testator and the testator's associations with the person or persons exercising the undue influence. Peretzman v. Simon, 185 Ga. 681 , 196 S.E. 471 (1938) (decided under former Code 1933, § 113-208); Bowman v. Bowman, 205 Ga. 796 , 55 S.E.2d 298 (1949);(decided under former Code 1933, § 113-208).

It is proper to consider the testator's dealings and associations with the beneficiaries, the testator's habits, motives, feelings, the testator's strength or weakness of character, the testator's confidential, family, social, and business relations, the reasonableness or unreasonableness of the will, the testator's mental and physical condition at the time the will was made; the testator's manner and conduct, and generally every fact which will throw light on the issue raised by the charge of undue influence. Stephens v. Bonner, 174 Ga. 128 , 162 S.E. 383 (1932) (decided under former Civil Code 1910, § 3834); Peretzman v. Simon, 185 Ga. 681 , 196 S.E. 471 (1938); Fowler v. Fowler, 197 Ga. 53 , 28 S.E.2d 458 (1943) (decided under former Code 1933, § 113-208); Stephens v. Brady, 209 Ga. 428 , 73 S.E.2d 182 (1952);(decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

In determining whether undue influence had been exercised by the wife, so as to substitute her will for that of her husband in his last will and testament, all of the circumstances including the conduct and demeanor of the parties with respect to each other, their comparative ages and mental capacity, and especially any physical and mental infirmity due to advanced age of the husband, may be taken into consideration. Trust Co. v. Ivey, 178 Ga. 629 , 173 S.E. 648 (1934) (decided under former Code 1933, § 113-208).

Allegations of undue influence must be accompanied by the particular facts. Bare conclusions such as "fraud, scheme, device, and undue influence" are insufficient allegations in a caveat to present an issue. English v. Shivers, 219 Ga. 515 , 133 S.E.2d 867 (1963) (decided under former Code 1933, § 113-208).

Where the caveat is stripped of allegations as to matters which do not appear to have had any bearing or influence upon the testator in the making of the testator's will and nothing remains except bare conclusions of the pleader as to fraud, scheme, device, and undue influence, the caveat does not provide sufficient issues to challenge the validity of the will. Marlin v. Hill, 192 Ga. 434 , 15 S.E.2d 473 (1941) (decided under former Code 1933, § 113-208).

Allegations of a caveat need not in each instance furnish the exact or precise words and language employed for the purpose of unduly influencing the testator or the exact dates upon which this is said to have occurred. Levens v. Levens, 203 Ga. 646 , 47 S.E.2d 748 (1948) (decided under former Code 1933, § 113-208).

Insufficient allegation of fraud or undue influence. - Allegations in a caveat to the probate of a will, "that the deceased had been insane for six or seven years prior to his death, was insane at the time the alleged will was signed, if he ever signed it, and that said alleged will is only the will" of named beneficiaries and "ought not to be probated as the will" of the alleged testator, and that the caveator had paid for the funeral expenses of the decedent without any knowledge that the chief named beneficiaries "had had decedent make a will giving them everything he had, if he ever signed the will," were insufficient to present any issue as to fraud or undue influence. Hastings v. Hastings, 175 Ga. 805 , 166 S.E. 192 (1932) (decided under former Civil Code 1910, § 3834).

Allegations of mental incapacity require examination of reasonableness of will. - When a will is attacked upon the grounds of the mental incapacity of the testator, and of undue influence in the procurement of the will, it is always proper to inquire whether the provisions of the will are just and reasonable, and in accord with the state of the testator's family relations, or the contrary. Knox v. Knox, 213 Ga. 677 , 101 S.E.2d 89 (1957) (decided under former Code 1933, § 113-208).

Evidence required to show undue influence varies as to peculiar circumstances. - Rules of evidence take into account the peculiar circumstances surrounding the issue of undue influence and acts, conduct, and circumstances may constitute undue influence when exercised on a person of failing mind, poor health, and other mental and bodily enfeeblements which would not be such undue influence as to void a will executed by a person of sound mind, good health, and intelligence. Bowman v. Bowman, 205 Ga. 796 , 55 S.E.2d 298 (1949) (decided under former Code 1933, § 113-208).

Quantity of influence varies with the circumstances of each case, according to the relations existing between the parties and the strength or weakness of mind of the testator; thus, the amount of influence necessary to dominate a mind impaired by age or disease may be decidedly less than that required to control a strong mind. Bowman v. Bowman, 205 Ga. 796 , 55 S.E.2d 298 (1949) (decided under former Code 1933, § 113-208).

Undue influence necessary to dominate a mind impaired by age, disease, or dissipation is less than that required to control a strong mind. Crews v. Crews, 219 Ga. 459 , 134 S.E.2d 27 (1963) (decided under former Code 1933, § 113-208).

Mere confidential relationship insufficient as proof of undue influence. - Person standing in a confidential relation to another is not prohibited from exercising any influence whatever to obtain a benefit to oneself. The influence must be what the law regards as undue influence; such influence that is obtained by flattery, importunity, superiority of will, mind, or character, which would give dominion over the will to such an extent as to destroy free agency or to constrain one to do against one's will what one is unable to refuse. Daniel v. Etheredge, 198 Ga. 191 , 31 S.E.2d 181 (1944) (decided under former Code 1933, § 113-208); Bailey v. Bailey, 204 Ga. 556 , 50 S.E.2d 617 (1948); Morgan v. Ivey, 222 Ga. 850 , 152 S.E.2d 833 (1967) (decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

Merely showing that the persons receiving substantial benefits under the instrument sought to be propounded occupied a confidential relationship to the testator and had an opportunity to exert undue influence is insufficient to show undue influence. Crews v. Crews, 219 Ga. 459 , 134 S.E.2d 27 (1963) (decided under former Code 1933, § 113-208).

Trial court properly granted a will beneficiary summary judgment on the issue of undue influence because the caveators failed to come forward with any evidence that the beneficiary attempted to influence the making or the contents of the testator's will despite the existence of a confidential relationship. Johnson v. Burrell, 294 Ga. 301 , 751 S.E.2d 301 (2013).

Presumption arises when such beneficiary is not natural object of maker's bounty. - When a person obtaining a substantial benefit under a will occupies a confidential relationship toward the maker of the will and is not a natural object of the maker's bounty, a presumption of undue influence arises if it is shown that the will was made at the request of such person. Bryan v. Norton, 245 Ga. 347 , 265 S.E.2d 282 (1980) (decided under former Code 1933, § 113-208).

Representation of infidelity between spouses as undue influence. - For one to represent to a wife that her husband is unfaithful to his marital vows, and giving to another the love and affection due his wife, whether the representation of infidelity is true or false, is likely to strongly influence her in the disposition of the property she may leave; hence, the evidence on behalf of the caveators was sufficient on the issues of fraud and undue influence to have gone to the jury. Stephens v. Brady, 209 Ga. 428 , 73 S.E.2d 182 (1952) (decided under former Code 1933, § 113-208).

Presumption of undue influence is rebuttable. - Presumption of undue influence based on the existence of confidential relations between the beneficiary and the testator and the active participation of the beneficiary in the execution of the will is rebuttable by any evidence showing that the testator acted freely and voluntarily in making the testator's will and not under the coercion of the person charged with undue influence. Bryan v. Norton, 245 Ga. 347 , 265 S.E.2d 282 (1980) (decided under former Code 1933, § 113-208).

Requirements for rebuttable presumption. - Caveator, who was disinherited under father's will, failed to show that the caveator's brother, who inherited, or the caveator's brother's son, exerted undue influence over testator. Harper v. Harper, 274 Ga. 542 , 554 S.E.2d 454 (2001).

Honest persuasion and argument, even to the extent of importunity, is not undue influence. Sweat v. Hughes, 219 Ga. 703 , 135 S.E.2d 409 (1964) (decided under former Code 1933, § 113-208).

Persuasion is not undue influence. - Honest persuasion to make a will of a certain kind, though constant and importunate and though accompanied by tears and entreaties, does not constitute undue influence, in the absence of fraud or duress, even though the testator yields to the influence in order to have quiet or peace of mind, or to keep the respect or love of members of the testator's family; provided the testator is in a mental condition to make a choice between following the testator's original intention or of yielding the testator's view in favor of the wishes of the other person. Boland v. Aycock, 191 Ga. 327 , 12 S.E.2d 319 (1940) (decided under former Code 1933, § 113-208).

Honest persuasion to make a will of a certain kind, though constant and importunate and though accompanied by tears and entreaties, does not constitute undue influence, in the absence of fraud or duress, provided the testator is in a mental condition to make a choice between following the testator's original intention or of yielding the testator's view in favor of the wishes of the other person. Ehlers v. Rheinberger, 204 Ga. 226 , 49 S.E.2d 535 (1948) (decided under former Code 1933, § 113-208); Morgan v. Ivey, 222 Ga. 850 , 152 S.E.2d 833 (1967); Sauls v. Estate of Avant, 143 Ga. App. 469 , 238 S.E.2d 564 (1977) (decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

Mere opportunity does not constitute undue influence. - Evidence which does no more than show opportunities for exerting influence falls short of showing the exercise of undue influence required to invalidate a will. Orr v. Blalock, 195 Ga. 863 , 25 S.E.2d 668 (1943) (decided under former Code 1933, § 113-208); Bailey v. Bailey, 204 Ga. 556 , 50 S.E.2d 617 (1948); Brown v. Bryant, 220 Ga. 80 , 137 S.E.2d 36 (1964) (decided under former Code 1933, § 113-208); Morgan v. Ivey, 222 Ga. 850 , 152 S.E.2d 833 (1967);(decided under former Code 1933, § 113-208);(decided under former Code 1933, § 113-208).

Evidence of the caveators on the question of whether the paper propounded for probate was the result of undue influence exercised over the mind of the testator failed to present an issue for the jury; it showed no more than a mere opportunity to exercise undue influence, which is not sufficient. Bailey v. Bailey, 204 Ga. 556 , 50 S.E.2d 617 (1948) (decided under former Code 1933, § 113-208).

When testimony shows at most only an opportunity on the part of a brother to impose his wishes upon his sister, the testator, the opportunity alone is insufficient to establish undue influence. Whitfield v. Pitts, 205 Ga. 259 , 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-208).

It is not sufficient to establish undue influence to show merely that the persons receiving substantial benefits under the instrument sought to be propounded occupied a confidential relationship to the testator and had an opportunity to exert undue influence. Bowman v. Bowman, 205 Ga. 796 , 55 S.E.2d 298 (1949) (decided under former Code 1933, § 113-208); Gornto v. Gornto, 217 Ga. 136 , 121 S.E.2d 139 (1961);(decided under former Code 1933, § 113-208).

Sufficient evidence to find testator unduly influenced. See Skelton v. Skelton, 251 Ga. 631 , 308 S.E.2d 838 (1983) (decided under former O.C.G.A. § 53-2-6 ).

No lack of testamentary capacity. - Daughter failed to show lack of testamentary capacity despite the fact that the testator's medical record contained the word "dementia" without an indication as to whether it was used as a diagnosis, a report from family members, or a matter for concern at later examinations; the testator's accountant and lawyer testified that the testator was aware of the property the testator possessed and of the relatives and that the testator expressed an intelligent scheme of disposition. Curry v. Sutherland, 279 Ga. 489 , 614 S.E.2d 756 (2005).

Undue influence established. - Evidence did not demand a verdict contrary to that returned by the jury, which found that in executing a new will that favored the appellants over the appellees, the testator had been subject to undue influence by the appellants; there was evidence that the testator was cared for 24 hours a day by the appellants, who administered medication to the testator; that an appellant was with the testator during visits; that the appellees felt uncomfortable when visiting; that an appellant had the testator's financial power of attorney, wrote checks on the testator's accounts, and kept the testator's books; that two of the appellants had an attorney draft the new will and provided the attorney with an estate distribution plan; that the new will was witnessed by a neighbor and two cousins of the appellants; that an appellant administered a narcotic to the testator on the day the new will was executed; that the appellants did not inform the appellees of the new will; and that the terms of the new will were inconsistent with the testator's repeated statements to others that the parties were to be treated equally. Lillard v. Owens, 281 Ga. 619 , 641 S.E.2d 511 (2007).

Trial court correctly denied an executor's motion for directed verdict in an action wherein the child of the testator filed a caveat and objection to the probate of the testator's last will and testament on the grounds that the will was the product of undue influence as sufficient evidence existed to support the conclusion that undue influence was used to have the testator bequeath the only asset, namely a home, to the caregiver who was hired by the executor. The record established that the executor blocked calls from the testator's child, refused to let the child see the testator, and a confidential relationship was established between the caregiver and the testator as the caregiver took an active role in the planning, preparation, and execution of the will. Bean v. Wilson, 283 Ga. 511 , 661 S.E.2d 518 (2008).

Evidence regarding the circumstances and surroundings of the testator and the testator's associations authorized the jury's finding that the testator's will was the product of undue influence because the propounder and the propounder's wife encouraged the caveator and the caveator's wife, who had moved in with the testator and the testator's wife and provided the care they needed, to leave the state for a vacation, and in their absence the propounder poisoned the testator's mind against the caveator, telling the testator falsely that the caveator had stolen all the caveator's money, that the testator was broke, and that the caveator had abandoned the testator and would not return; acting under the influence of the propounder and the propounder's wife, the testator secured a restraining order that prevented the caveator from seeing the testator for six months after the caveator returned, and the testator's will radically changed the distribution of the estate envisioned by the testator in a previous will by changing the will to disinherit the caveator completely. McDaniel v. McDaniel, 288 Ga. 711 , 707 S.E.2d 60 (2011).

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 113-109 and 113-301, and former O.C.G.A. § 53-2-40 are included in the annotations for this Code section.

Purpose. - Substantive origin of the statute of frauds, as well as that of the former section, was the need to establish rules for the execution of wills which precluded as well as possible the occurrence of fraud in the disposition of estates, often the result of a life's labor. Waldrep v. Goodwin, 230 Ga. 1 , 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Law provides no special formalities about the witnesses to a will; it is sufficient if the witnesses attest and subscribe the will in the presence of the testator; the law implies the request in the consummation of the act, and no special request by the testator is necessary. Whitfield v. Pitts, 205 Ga. 259 , 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-301).

Attestation of a will by the subscribing witnesses, signed by the witnesses in the presence of the testator and with the testator's knowledge may be treated as the equivalent of a request by the testator that these persons subscribe their names as witnesses to the paper, and especially when such testator is shown to have been seeking witnesses for the purpose of having the witnesses attest the testator's will. Glenn v. Mann, 234 Ga. 194 , 214 S.E.2d 911 (1975) (decided under former Code 1933, § 113-301).

Designation-of-beneficiary document insufficient to operate as will. - Although the designation-of-beneficiary document for purposes of decedent's teachers' retirement system benefits executed by the decedent in 1965 did contain the signature of a notary public, as well as the signature of the decedent's employer, there was no showing that these persons signed the document in the presence of the decedent as attesting witnesses and therefore the document could not operate as a will. Kirksey v. Teachers' Retirement Sys., 250 Ga. 884 , 302 S.E.2d 101 (1983) (decided under former O.C.G.A. § 53-2-40 ).

Discussion of history of former provisions. - See Waldrep v. Goodwin, 230 Ga. 1 , 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Cited in Rea v. Pursley, 170 Ga. 488 , 154 S.E. 325 (1930); Moore v. Tiller, 61 F.2d 478 (5th Cir. 1932); Bloodworth v. McCook, 193 Ga. 53 , 17 S.E.2d 73 (1941); Denmark v. Rushing, 208 Ga. 557 , 67 S.E.2d 766 (1951); Graham v. Stansell, 218 Ga. 832 , 131 S.E.2d 103 (1963); Crews v. Cook, 220 Ga. 479 , 139 S.E.2d 490 (1964); Lee v. Green, 222 Ga. 141 , 149 S.E.2d 86 (1966); Black v. Poole, 230 Ga. 129 , 196 S.E.2d 20 (1973); Lamb v. Bryan, 236 Ga. 237 , 223 S.E.2d 122 (1976); Johnson v. Shook, 156 Ga. App. 878 , 275 S.E.2d 815 (1981).

Writing Required

Wills must be in writing, and executed according to prescribed formalities, and a failure to dispose of property cannot be supplied by showing sayings and statements of the testator that the testator desired or intended to dispose of the property in a certain way, or that the testator understood that the will disposed of the property in a way different from that expressed in the will. Lining v. Jackson, 203 Ga. 22 , 45 S.E.2d 410 (1947) (decided under former Code 1933, § 113-301).

When the only objection which the caveator makes to the appointment of an administrator is that it was the intention of the testator that the property should go to the caveator, and there is nothing in the will to indicate that such was the testator's intent, the court properly sustained the demurrer (now motion to dismiss) to the caveat. Lining v. Jackson, 203 Ga. 22 , 45 S.E.2d 410 (1947) (decided under former Code 1933, § 113-301).

Provisions of the English statute 29 Car. 2 c. 3, § 7, known as the statute of frauds, that all declarations and creations of trusts shall be manifested and proved by writing signed by the party, who was by law enabled to declare such trust, or the party's last will in writing, or else shall be void, were embodied in former Code 1933, § 20-401 (see O.C.G.A. § 13-5-30 ), which provided that any contract for the sale of lands, or concerning land, must be in writing; former Code 1933, § 108-105 (see O.C.G.A. § 53-12-23 ), which provided that all express trusts shall be created or declared in writing; and former Code 1933, § 113-301, which provided that all wills (except nuncupative wills), disposing of real or personal property, shall be in writing, signed by the party making the will or by some other person in the party's presence and by the party's express direction, and be attested and subscribed in the presence of competent witnesses. Woo v. Markwalter, 210 Ga. 156 , 78 S.E.2d 473 (1953) (decided under former Code 1933, § 113-301).

Signing and Attestation of Will

Attestation clause. - Paper testamentary in its nature does not require for its due execution an attesting clause declaring it a will, and reciting its execution according to the terms of the statute, pointing out how wills shall be executed. If it be subscribed by the testator, in the presence of the witnesses, and be attested and subscribed by the witnesses in the testator's presence, it is sufficient. Whitfield v. Pitts, 205 Ga. 259 , 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-301).

Acknowledgment may be inferred. - Acknowledgment by testator need not be explicit, but may be inferred from conduct. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847 , 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596 , 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-2-40 ).

Testator may sign using any name or signature intended to authenticate an instrument as testator's will. Mitchell v. Mitchell, 245 Ga. 291 , 264 S.E.2d 222 (1980) (decided under former Code 1933, § 113-301).

Testator's mark sufficient to show intent to authenticate will. - Trial court did not err in granting a propounder's motion for summary judgment on the issue of whether a testator's will was properly executed because pursuant to O.C.G.A. § 53-4-20(a) , the testator's mark was sufficient to show that she intended to authenticate the instrument as her will, and her intent to authenticate the will could not be questioned simply because she needed physical assistance to mark the instrument; the testator was unable to place her signature on the will, so one of the witnesses assisted her by moving her hand to the signature line, and it was her intent that the mark would serve as her signature. Strong v. Holden, 287 Ga. 482 , 697 S.E.2d 189 (2010).

"Express direction" required by statute may be by express conduct as well as by express words. Mitchell v. Mitchell, 245 Ga. 291 , 264 S.E.2d 222 (1980) (decided under former Code 1933, § 113-301).

Testator's hand resting upon the pen while it was being manipulated to produce the testator's signature constitutes the testator's "express direction" within the meaning of law. Mitchell v. Mitchell, 245 Ga. 291 , 264 S.E.2d 222 (1980) (decided under former Code 1933, § 113-301).

Attorney's assistance in helping testator sign will. - When there was evidence that the attorney who prepared the will enabled the testator, who because of the testator's physical condition could not write, to make the testator's mark by placing the testator's hand upon the pen as the mark was made, this was sufficient to authorize the jury to find that the testator signed the will. Crutchfield v. McCallie, 188 Ga. 833 , 5 S.E.2d 33 (1939) (decided under former Code 1933, § 113-301).

Particular acts of authentication. - Statute does not of itself make that which is attested by a witness the signature of the testator. Like the statute of frauds upon which it was modeled, it does not set forth any particular acts of authentication by the testator to be attested by the witnesses. Waldrep v. Goodwin, 230 Ga. 1 , 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Testator to sign in presence of witnesses. - To constitute a legal execution of an instrument purporting to be a will, it is absolutely necessary that the attesting witnesses either actually see the testator sign the instrument, or that the testator acknowledge the testator's signature thereto either expressly or impliedly. Thornton v. Hulme, 218 Ga. 480 , 128 S.E.2d 744 (1962) (decided under former Code 1933, § 113-301); Glenn v. Mann, 234 Ga. 194 , 214 S.E.2d 911 (1975);(decided under former Code 1933, § 113-301).

As with questions of the authenticity of the testator's signature, of the testamentary capacity of the testator, and of the undue influence upon the testator of others in making the testator's will, the signing, or acknowledgment of the testator's signature, by the testator in the presence of attesting witnesses is a matter of proof. Waldrep v. Goodwin, 230 Ga. 1 , 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Attestation of a will requires that the testator must either sign in the presence of the witness or acknowledge the testator's signature to the witness. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847 , 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596 , 322 S.E.2d 870 (1984) (decided under former O.C.G.A. § 53-2-40 ).

Testator must be able to see witnesses sign a will. - Line-of-vision test of former O.C.G.A. § 53-4-20 , under which a testator must be able to see the witnesses sign the testator's will from the place where the testator is situated without changing the testator's place if the testator so desires is part of O.C.G.A. § 53-4-20 as revised in 1998; revised statutory language must be construed to be consistent with existing law unless a contrary intent is clear from the language of the revised statute, and because no contrary intent appears in § 53-4-20, which mirrors the language of the previous version, the formalities of the former Georgia Probate Code for the execution of a will are maintained. McCormick v. Jeffers, 281 Ga. 264 , 637 S.E.2d 666 (2006).

Will not signed in the presence of the testator. - Will of a testator was improperly admitted to probate under the line-of-vision test of O.C.G.A. § 53-4-20(b) because the witnesses signed the will at a dining room table where the testator could not see them without changing position from the bedroom chair where the testator had signed the will; because the evidence unequivocally established that the testator could not have seen the witnesses sign the will if the testator desired to do so, any presumption of proper execution arising from the will's attestation clause was rebutted by clear proof that the will was not properly executed in that the witnesses did not sign the will in the testator's presence. McCormick v. Jeffers, 281 Ga. 264 , 637 S.E.2d 666 (2006).

Signature of witnesses in each others' presence. - It is not necessary that the subscribing witnesses sign in the presence of each other; it is sufficient if each signs in the presence of the testator. Whitfield v. Pitts, 205 Ga. 259 , 53 S.E.2d 549 (1949) (decided under former Code 1933, § 113-301).

Testator and witnesses in adjoining rooms. - If the situation and circumstances of the testator and the attesting witnesses to a will at the time of the will's attestation are such that the testator, in the testator's actual position, might have seen the act of attestation, the requirement of the law that the witnesses shall sign in the testator's presence is sufficiently met. Glenn v. Mann, 234 Ga. 194 , 214 S.E.2d 911 (1975) (decided under former Code 1933, § 113-301).

Subscribing witnesses can attest a will, even though the witnesses and the testator are in adjoining rooms in the same house, if the testator in the testator's actual location might have seen the attestation. Newton v. Palmour, 245 Ga. 603 , 266 S.E.2d 208 (1980) (decided under former Code 1933, § 113-301).

Signatures not required to be on same page. - Provisions of the code regarding signing and attestation of a will do not require that the signatures of the testator and of the witnesses be on the same page and such a requirement is not imposed by case law. In re Estate of Brannon, 264 Ga. 84 , 441 S.E.2d 248 (1994) (decided under former O.C.G.A. § 53-2-40 ).

When all of the signature pages are physically connected as part of the will, the fact that a testator's signature and the signatures of witnesses do not appear on the same page does not in itself invalidate the execution of the will. In re Estate of Brannon, 264 Ga. 84 , 441 S.E.2d 248 (1994) (decided under former Code 1933, § 113-301).

Priority of signatures. - Rules of construction as laid down in Duffie v. Corridon, 40 Ga. 122 (1869), Brooks v. Woodson, 87 Ga. 379 , 13 S.E. 712 (1890) and those cases following, that witnesses attest a testator's signature and that a will is rendered invalid if a witness signs before the testator no matter whether the signatures are affixed in the same continuous transaction, are rationalizations opposing the effectuation of testamentary desires while offering no preventative for fraud. They will no longer be followed because there can be no fraud when all parties sit at the same table and affix their signatures in the presence of each other regardless of who signs first. Waldrep v. Goodwin, 230 Ga. 1 , 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Even though witnesses attest to the will as declared by the testator and no priority of signature of testator and witnesses should be assigned in the execution of a will, the requirement that the testator must sign or acknowledge the testator's signature in the presence of the witnesses is not eliminated. Waldrep v. Goodwin, 230 Ga. 1 , 195 S.E.2d 432 (1973) (decided under former Code 1933, § 113-301).

Attestation clause raises presumption of legality of will. - Proper attestation clause to a duly signed and attested will raises a presumption that the will was legally executed; however, this presumption is rebuttable by clear proof to the contrary. Newton v. Palmour, 245 Ga. 603 , 266 S.E.2d 208 (1980) (decided under former Code 1933, § 113-301).

Guardian ad litem as competent witness. - Guardian ad litem is a competent witness to the will of the guardian's ward. Bagwell v. Estate of Gibson, 258 Ga. 785 , 374 S.E.2d 732 (1989) (decided under former O.C.G.A. § 53-2-40 ).

Attestation sufficient to avoid summary judgment against probate. - Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56 to will caveators in a will propounder's action seeking to probate a decedent's will, since the decedent had sufficiently signed the will on the signature line of the self-proving clause, pursuant to former O.C.G.A. § 53-2-40 .1, and there existed two competent witness signatures which were sufficient for attestation purposes; accordingly, the statutory requirements for proper execution of a will under former O.C.G.A. § 53-2-40 appeared to have been met and a jury issue was raised as to whether, in fact, the requirements were met. Miles v. Bryant, 277 Ga. 362 , 589 S.E.2d 86 (2003) (decided under former O.C.G.A. § 53-2-40).

Witness also signing as notary. - It was error to grant summary judgment to a caveator in a will contest in which the first of three witnesses signed both as a witness and as a notary. Even if the first witness did not intend to act as a witness, if the first witness and a second witness signed the will in the decedent's presence, then O.C.G.A. § 53-4-20(b) , requiring two witnesses, was satisfied even if a third witness signed outside the decedent's presence; furthermore, although O.C.G.A. § 45-17-8(c)(1) disqualified a witness from also acting as a notary, the first witness's disqualification as a notary was immaterial because the will was not a self-proving one requiring a notary. Land v. Burkhalter, 283 Ga. 54 , 656 S.E.2d 834 (2008).

Requirements of statute met. - Will met the requirements of O.C.G.A. § 53-4-20(b) because the will was executed by the testator and signed by two subscribing witnesses, the one surviving witness testified as to the will's due execution, and the caveators presented no evidence challenging the validity of the signatures or the testator's capacity. Peterson v. Harrell, 286 Ga. 546 , 690 S.E.2d 151 (2010).

Codicil not properly executed. - Trial court erred in finding that a codicil to a testator's will was valid because the propounders failed to prove due execution of the codicil when the testator failed to sign or acknowledge the testator's signature on the first codicil in the presence of at least, and possibly both, subscribing witnesses pursuant to O.C.G.A. § 53-4-20(b) ; the testimony of one of the subscribing witnesses was unequivocal that the testator did not sign the first codicil in the witness's presence and did not acknowledge the testator's signature. Parker v. Melican, 286 Ga. 185 , 684 S.E.2d 654 (2009).

Pleading and Practice

Propounder of will must prima facie prove factum of will. - When the court charged the substance of the provisions of the statute for the attestation of wills, it was not error, without request, to fail to charge the jury the exact language of the statute. Middleton v. Waters, 205 Ga. 847 , 55 S.E.2d 359 (1949) (decided under former Code 1933, § 113-301).

In a proceeding to probate a will the burden is upon the propounder to prima facie prove the factum of the will, that is, that the will was executed with requisite formalities; that the testator executed the will freely and voluntarily, and was at the time of sound and disposing mind and memory. This burden carried, the onus of proving the will is not valid for one of the reasons alleged in the caveat shifts to the caveator. Bianchini v. Wilson, 220 Ga. 816 , 141 S.E.2d 889 (1965) (decided under former Code 1933, § 113-301).

The propounder of a will carries the burden of proving a prima facie case by presenting the subscribing competent witnesses who testified that the testator signed the will in their presence, after the will had been read, and that the testator possessed the mentality to know what the testator was doing. Waters v. Arrendale, 223 Ga. 617 , 157 S.E.2d 289 (1967) (decided under former Code 1933, § 113-301).

Burden of proof. - Trial court did not err in finding that a codicil to a testator's will was invalid because the court properly charged the jury that the caveators had no burden to prove the grounds of their caveats to the propounders' petition to probate codicils; because testamentary capacity and voluntary execution were necessary elements of the propounders' case, the burden of persuasion remained on the propounders to prove their assertions by a preponderance of the evidence, and in the absence of an asserted affirmative defense, the caveators had no duty to affirmatively prove anything but were required only to come forward with evidence to rebut the propounders' prima facie case as to essential elements. Parker v. Melican, 286 Ga. 185 , 684 S.E.2d 654 (2009).

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 113-104, and former O.C.G.A. § 53-2-51 are included in the annotations for this Code section.

Cited in Ricketson v. Fox, 247 Ga. 162 , 274 S.E.2d 556 (1981).

Joint Wills

Joint will defined. - Joint will is one where the same instrument is made the will of two or more persons and is jointly signed by them. Such a will contained in a single instrument is the will of each of the makers, and at the death of one, may be probated as that one's will, and be again probated at the death of the other as the will of the latter. Such wills are usually executed to make testamentary disposition of joint property. Wills may be joint or mutual, or both joint and mutual. Lampkin v. Edwards, 222 Ga. 288 , 149 S.E.2d 708 (1966) (decided under former Code 1933, § 113-104).

Joint will. - Because the only references to mutuality in a joint will under O.C.G.A. § 53-4-31 were in the title of the instrument and in the attestation clause, those references were insufficient to constitute either an "express statement" required by O.C.G.A. § 53-2-51 , or an express written "contract" requirement of O.C.G.A. § 53-4-30 , and there was no clear and definite agreement so as to trigger the fraud exception; accordingly, the surviving wife's deed of gift of real property to a nephew was not precluded, and the will was revocable because there was no express written contract to the contrary. Hodges v. Callaway, 279 Ga. 789 , 621 S.E.2d 428 (2005).

Joint will was revocable after one spouse's death. - A 1997 will made by a father and mother was merely joint, and the will contained no contractual language indicating any intent of the father or mother that the will should be considered irrevocable; therefore, after the father's death, the mother could make a new will that disinherited her daughter. Oravec v. Phillips, 298 Ga. 846 , 785 S.E.2d 295 (2016).