The Savannah morning news., 1903-12-04
QUESTION OF MORALS
~or TAKEN AS GROUNDS, ny
CoURT. FOR REFUSING HOMESTEAD
CAvEAT WAS SUSTAINED.
NONRESIDENT BENEFICIARY
GROUNDS TOR COURTS DECISION.

and Much Interest Centers in the
Decision, Which Will, No Doubt
Re Appealed TO-Judge McAIpin
Prepared an Elaborate Decision
and Its Correctness rs Decided by
Supreme Court of Much Interest
10 Members of the Bar.
A question of law that has never been
missed on by the Supreme Court of
Georgia or any other state, so far as
Savannah lawyers have been able to
discover, was that brought to light
in the caveat proceedings in the TAX
ing out of a homestead by Annie Hy-
man. Judge McAlpin rendered his
decision in the case yesterday after
noon, supporting the position of the
caveators, and gave his reasons, which
he is anxious to have passed on by
the Supreme Court. There is also
much interest on the part of members
of the bar as to just how the Supreme
Court will view the matter, and Judge
McAlpin volunteered to refund all costs
in his court that the matter might be
CdIIlGu up " I4AC AAl6ACA SOAEI edilu Their
decision obtained with as little cost
as possible.
The case was that in which Annie
LYMAN asked for a homestead on a
fire insurance policy due, and house
hold furniture, and a caveat proceed
ings on the part of certain creditors,
who assumed the position that as the
property was to be used for the pur-
pose of keeping a house of ill repute,
which is against public policy and il
legal, the homestead should not be
granted. This was one of the grounds,
and Judge McAlpin doubted that he
had the right to refuse the home
stead on these grounds or to enter in
to the question of how the property
was to be used. The decision of Judge
McAlpin follows:
Judge McAIpjn's Decision.
1T is not my duty to enter into the
question as to how the property is to
be used 1t seems to be clear that
Section 1927 specifies who are entitled
to homestead. This statute must be
strictly construed. 1t contains no
qualifications except as to what
charges have a prior claim on the ex-
empted property. IT, therefore, the
applicant comes within this class of
those who are entitled to exemption,
it cannot be denied her on the
grounds of public policy.
Section 1868 of the Code specifies
what are contracts against public pol
icy, and taking the allegation as true,
that the furniture, etc, in question,
are to be used for immoral purposes
Though the evidence does not sustain
the allegation) it does not seem to
come within any of the classes enum-
Grated in that section of the Code.
1t is, therefore, hereby decided, that
if the applicant comes otherwise
within the requirements necessary for
the granting of a homestead that it
could not be denied her on the grounds
set out in Paragraphs l and 2 Of the
caveat, said grounds are, therefore,
Overruled, and we pass to the second
contention of the caveator.
This is the most important ques-
ton in the case, and as far as we have
been able to ascertain, has never been
passed upon by the Supreme Court of
Georgia.
Tt has been forcibly ar
gued by counsel of the ca
veator that the principles set out in
The decisions in the Seventy-third
Georgia. Page 424, and the Seventh
seventh Georgia, Page 6S2, and Eigh-
tieth Georgia, Page $50, show that 1t
is necessary for the family to reside
under the roof of. and be absolutely
dependent upon the applicant, or at
least, taking the broadest construction
of the law, that the beneficiaries must
be residents of the state. That the
evidence disclosed that the applicants
daughter, who is years old, and com
posed the sole membership of her
family, and is the only female depend
ent uopn her, has, for the past eight
years continually remained resident
Of the state of New York, as an in
mate of the household of the child's
maternal grandmother, and, there
fore, the applicant, under the Georgia
statute, is not entitled to home
stead.
Age of the Child.
Counsel for the applicant, on the
other hand, has, with equal force, ar
gued that the applicant is, and has
been for the past eight years, a resi-
dent of Chatham county, and that her
daughter is dependent upon her. That
the child's domicile is that of its moth
er and the child cannot, by any act
OF her own, change same. That If the
homestead was granted it could only
be lost by the death of the child or
by the change of residence of the
mother (the applicanD and that 1t
makes no difference where the child
resides, so long as the mother resides
IN Georgia. In support Of this view he
cites Section 1927 and 1880 of the Code,
and ll2-572, and a decision from Texas
reported in the fifteenth American and
English Encyclopedia, page 704, when
holds: There is no forfeiture OF the
deceased husband was a resident OF
the state, though the wife and children
may have lived elsewhere, provided
Vhey did so with his consent.
In deciding this question we must
decide first whethe- there is any dis
tlnction to be made in the require
ments to obtain a homestead, ana
those applicable to the continuance of
uhe homestead, after 1T has been once
granted.
Are the requirements the same
Ior the acquiring of the title to the
property scheduled, and the retention
VI the title after it has once vested"
Quoting from the fifteenth American
ana English Encyclopedia Of Law, page
90 II says: In most of the states II
mas been held that after a homestead
mas once been acquired it is not lost
by the death or removal of the MEM
pers OF the family, other than the head
put continues to be exempt so long as
he continues to occupy 1t as a home"
Distinction rs to HOmesteads.
From this law it would be inferred,
mat there must be distinction in the
requirements Of acquiring and retaining
me homestead. That allowed in re-
aiming being on its face broader than
mat in acquiring, at least, so 1t would
oe In Georgia, II her laws conformeo
70 most of the states referred 70 III
20