Cleghorn vs. Johnson et al., and vice versa

Supreme Court of Georgia1882-09-19

69 Ga. 369

Summary · law.co

Holding. The judgment is reversed. The trial court erred in instructing the jury that the widow could not sell the children's interest in property set apart for support and in refusing to charge that the widow could sell the property without a court order; the widow had authority to sell the entire property designated for the family's support without further judicial approval.

T.J. Johnson died intestate in 1863, leaving a small estate including disputed land to his widow and five minor children. In 1872, the widow received the entire estate as her twelve-month support allocation and subsequently sold the land to Z.T. Cleghorn for $300 to support the family. When the children reached adulthood, they sued to recover the land. The trial court instructed the jury that the widow could only sell her own interest, not the children's interest in the property set apart for support, though the jury could offset the purchase price against any benefits received. The court also refused Cleghorn's requested instruction that no court order was necessary to sell property designated for family support.

The Georgia Supreme Court identified error in the jury instructions. Prior precedent established that property designated for family support could be converted and sold without court approval or further proceedings, as requiring such formalities would impede the support's purpose. The court held that the widow possessed authority to sell the entire property without obtaining an order from the ordinary (probate judge), and the jury should have been so instructed. The court also addressed a secondary issue concerning the admission of exemplified (certified) copies of lost court records establishing the support allocation, holding that while courts may generally establish lost office papers on motion without notice, better practice requires notice to opposing parties when the lost record is material to a pending suit affecting their interests.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Authority of a widow to sell property designated as family support without court approval
Scope of a widow's power over property set apart for year's support of minor children
Procedure for establishing lost court records in cases affecting pending litigation

Procedural posture

Both the defendant below (Cleghorn) and plaintiffs below filed bills of exceptions, which were heard together on appeal to the Georgia Supreme Court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Speer, Justice.

Both sides filed bills of exceptions in this case, and by-consent they are heard here as one.

T. J. Johnson, the father of plaintiffs below, died intestate in 1863, leaving a small estate less than $500.00 in value, including the land in dispute. He left as his heirs at law, his widow and five minor children, one of the latter dying a minor and unmarried.

In 1872 the widow of the intestate applied and had assigned her by appraisers duly appointed by the ordinary of the county, as a twelve month’s support for her and her children, the whole estate, including the land in controversy. Subsequently in 1872 the widow, to provide a support for herself and children, sold the land to plaintiff in error, Z. T. Cleghorn, for three hundred dollars, which was used for the family.

On attaining their majority, the children, as heirs at law of their father, brought their suit to recover the land thus sold, and under the charge and evidence, the jury returned a verdict in their favor for four-fifths of the premises in dispute. Cleghorn moved for a new trial on the grounds as set forth, which was refused, and he excepted.

The plaintiffs below also excepted and assign error on certain rulings of the court as to the admissibility oí certain evidence admitted by the court below on the trial.

The main ground of error relied upon by Z. T. Cleghorn was that the court charged the jury “that the widow could sell her interest, but could not sell the interest of her children in the land set apart by the appraisers for a twelve month’s support for the widow and children, but if the jury believed the children received the benefits, they might allow the amount paid for the land to be set off against the rents of said place.” In this instruction we think there was error, as was ruled in the case of Miller vs. Monroe, 50 Ga., 567, and also reaffirmed in a more recent case of Tabb et al. vs. Collier, 68 Ga., 641.

In the last cited case this court said, “ If the property so set apart is not adapted to the use of the family, it may, without the aid of courts or chancellors, be converted and made available for the purposes intended. We do not understand that, tobe enjoyed, further notices, guardians, and orders are to be obtained, to change land (already given for support) into bread before it is to be allowed. To do so, would consume not less than two months, and in most cases a longer time, in which time the family might come to want.”

It is true, in the cases just cited, the ordinary approved the sale, and in this case there was^no express approval. Yet the support set apart passed his jurisdiction without objection, and when it finally became fixed and determined by lapse of time, he is not required to exercise further jurisdiction over it, either to approve or disap. prove any sale made. We think, therefore, there was error in the instructions given by the court to the jury as complained of. We also think the court erred in refusing to charge the jury as requested, “ That it was not necessary to have an order from the court of ordinary to sell land or property set aside for a year’s support, and the property may be used as the widow sees fit.” For these causes, we are of opinion a new trial should be allowed to the defendant below.

The plaintiffs in the case below also filed their bill of exceptions, assigning error in the court below in admitting certain documents purporting to be exemplifications from the court of ordinary in evidence, showing the application of the widow and order of the ordinary appointing the appraisers to set apart the year’s support, in connection with the return of the appraisers making and setting apart said support.

It appears that the application and order appointing said appraisers were established copies in said court of ordinary in lieu of the originals lost, and they were objected to on the ground “ that the order establishing the copies appeared on its face to have been passed without any written application and without any notice to plaintiffs below, and because there was no authority in the court of ordinary to establish such papers by extrinsic evidence.”

The authority of courts to establish lost office papers and amend their records, on motion, by any competent evidence, intrinsic and extrinsic, has too often been recognized by this court to be now questioned. See Code, 3980; 3 Keely, 121; 47 Ga., 195; 62 Ib., 187; 56 Ib., 592; 57 Ib., 249; 61 Ib., 680. And the usual practice has been to establish these papers instanter and on motion without notice. But in a case where the lost record or office paper is a part of a muniment or title to be used in a suit then pending in another tribunal, as in this case, and which is vitally material to the prosecution or defence of the case, we hold that on application to establish such lost record or office paper in another forum, the better practice is for the opposing party to have reasonable notice of such a proceeding. Such practice would seem to conform to the general principle that one should have an opportunity to be heard where his interest, then in issue, is to be affected by the proceeding.

Judgment reversed.