O.C.G.A. § 44-13-4 (2019)

Annotations

Cross references. Appointment of person to perform du-

ties of county surveyor when no such office exists in county, § 36-7-13. Editor’s notes. Ga. L. 1983, p. 1170, § 2, effective July 1, 1983, redesignated former Code Section 44-13-5 as this Code section. The 1983 Act also redesignated former Code Section 4413-4, relating to supplementation of exemption, as present Code Section 44-13-3.

JUDICIAL DECISIONS List of property. - Whether all or only a part of the estate is to be exempt, the schedule must contain a list of all the property owned by the decedent. Blackstone v. Kritzer, 120 Ga. 78, 47 S.E. 585, 1904 Ga. LEXIS 449 (1904). No schedule. - Where there is no schedule of property, the homestead is void. Peterson v. Calhoun, 135 Ga. 103, 68 S.E. 1022, 1910 Ga. LEXIS 425 (1910). Schedule amendable. - The schedule is a part of the pleadings, and is amendable at any time prior to judgment. Davis v. James, 145 Ga. 325, 89 S.E. 203, 1916 Ga. LEXIS 301 (1916). Property included by mistake. - A petition for homestead may be amended by adding to the schedule something which has been omitted, but not by striking therefrom any article of property therein set forth. If the applicant has by mistake inserted property belonging not to the applicant but to another, the applicant should dismiss the application and file another one, omitting such articles of property not belonging to the applicant as were in the previous schedule. McWil-

liams v. Bones, 84 Ga. 199, 10 S.E. 723, 1889 Ga. LEXIS 223 (1889); Smith v. Exchange Bank, 25 Ga. App. 278, 103 S.E. 99, 1920 Ga. App. LEXIS 741 (1920). Sale of article included in schedule. - The sale by the applicant, after making an application, of an article which the applicant had placed on the schedule, was sufficient to have defeated the application, unless the applicant accounted for the money and delivered up the same for the benefit of creditors. McWilliams v. Bones, 84 Ga. 199, 10 S.E. 723, 1889 Ga. LEXIS 223 (1889). Statutory exemptions inapplicable in federal bankruptcy cases. - O.C.G.A. §§ 44-13-4(b) and 44-13-7 deal with constitutional exemptions from the levy and sale of property, and these statutory provisions simply do not apply in the context of federal bankruptcy cases. Caruthers v. Fleet Fin., Inc., 87 B.R. 723, 1988 Bankr. LEXIS 825 (Bankr. N.D. Ga. 1988). Wife not head of family. - A wife having children by a former as well as by a present husband cannot be said to be the head of a family, consisting of herself and

her minor children by both husbands. Neal v. Sawyer, 62 Ga. 352, 1879 Ga. LEXIS 526 (1879). Widow as head of family and guardian. - A widow in the character both of the head of a family and the guardian of her minor children, applied for and obtained homestead in the real estate of her husband. The effect of so doing was to obtain a homestead as the head of a family in her own undivided share, and a homestead as the guardian of her minor children in their undivided shares. Fountain v. Hendley, 82 Ga. 616, 9 S.E. 666, 1889 Ga. LEXIS 308 (1889). Wife failing to attach schedule as to personalty. - Where a wife made an application to the ordinary (now probate judge)for an exemption of realty out of land belonging to the husband, but not praying therein for any exemption of personalty, the exemption of realty, after being duly set apart and approved by the ordinary (now probate judge), was not void because of the applicant’s failure to attach to her application a schedule of personal property belonging to the husband. Atwater v. Respess, 97 Ga. 283, 22 S.E. 1000, 1895 Ga. LEXIS 364 (1895). Dependent females. - O.C.G.A. § 44-13-4 does not contemplate a homestead or exemption for the benefit of dependent females, except in the property of the person upon whom they were dependent. Sutton v. Rosser, 109 Ga. 204, 34 S.E. 346, 1899 Ga. LEXIS 612 (1899). Showing beneficiaries. - A petition which stated that the applicant claimed a homestead as head of a family, and then stated of whom that family consisted, was sufficiently explicit in showing who were the beneficiaries for whom the homestead was asked. Roberts v. Cook, 68 Ga. 324, 1882 Ga. LEXIS 4 (1882). A collateral attack on a judgment setting aside a constitutional homestead under O.C.G.A. § 44-13-4 is not allowable, though allowable as to a “short homestead.” Gann v. McGee, 19 Ga. App. 13, 90 S.E. 976, 1916 Ga. App. LEXIS 6 (1916). After-acquired realty. - Where the head of a family asserts a homestead in personalty, not having any realty at that time, that person does not lose the right to

a homestead in realty thereafter acquired. Dickinson v. Haralson, 61 Ga. 526, 1878 Ga. LEXIS 174 (1878). The description of an automobile, in the application for homestead, as “one five-passenger Ford automobile,” was sufficient to identify the property. Gann v. McGee, 19 Ga. App. 13, 90 S.E. 976, 1916 Ga. App. LEXIS 6 (1916). Fixing valuation. - It is not incumbent on the applicant for a homestead to fix the valuation of the real estate sought to be set apart; this duty devolves upon the surveyor, the surveyor’s valuation being subject to review by appraisers. Wood & Bro. v. Collins, 111 Ga. 32, 36 S.E. 423, 1900 Ga. LEXIS 478 (1900). Signature to and verification of petition. - Where a petition for a homestead was signed by the attorney of the applicant, and verified by the affidavit of the latter, it was not void. Roberts v. Cook, 68 Ga. 324, 1882 Ga. LEXIS 4 (1882). Alleging age of wife. - Where a homestead was asked for the benefit of a wife and children, a failure to allege the age of the wife did not render the proceeding void. Roberts v. Cook, 68 Ga. 324, 1882 Ga. LEXIS 4 (1882). Approval of the schedule does not operate to set aside, as exempt, property described therein but omitted from that part of the petition stating out of what property the exemption is claimed. Blackstone v. Kritzer, 120 Ga. 78, 47 S.E. 585, 1904 Ga. LEXIS 449 (1904). Proceeding under O.C.G.A. § 44-1316. - A bankrupt debtor in perfecting an exemption of money, set aside to the debtor in a bankruptcy proceeding, in a proceeding before the ordinary (now probate judge) of the county of residence under the provisions of O.C.G.A. § 4413-16 must comply with O.C.G.A. § 4413-4 and §§ 44-13-7 through 44-13-9, relating to the schedule to be attached to the application, the notice to be published by the ordinary (now probate judge), and the notice to be given creditors by the applicant or the applicant’s agent. Lou Hill Co. v. Bjoralt, 103 Ga. App. 564, 120 S.E.2d 39, 1961 Ga. App. LEXIS 1002 (1961). Presumption that proper order given. - As against a creditor who was duly served with notice of an application

for a homestead, it will, though the homestead proceeding does not so disclose, be presumed that a proper order to the surveyor to lay off and plat the homestead was granted; nor as to such creditor will a homestead so approved be treated as invalid because the plats of two lots composing the same did not purport to be made by the county surveyor and were not sworn to, accompanied by an affidavit as the law requires. Dunagan v. Stadler, 101 Ga. 474, 29 S.E. 440, 1897 Ga. LEXIS 248 (1897). Plats made by other than county surveyor. - When it is shown that the plats were made by other than the county surveyor, the law will presume there was no county surveyor. Dunagan v. Stadler,

101 Ga. 474, 29 S.E. 440, 1897 Ga. LEXIS 248 (1897). Question for jury. - The sufficiency of identification of property in an application for homestead is a matter for the consideration of the jury. Gann v. McGee, 19 Ga. App. 13, 90 S.E. 976, 1916 Ga. App. LEXIS 6 (1916). Appellate review. - Power to act under O.C.G.A. § 44-13-4 is conferred upon the ordinary (now probate judge) of the county in which the applicant resided; and the ordinary’s action must be reviewed by certiorari and not by appeal. Cunningham v. United States Sav. & Loan Co., 109 Ga. 616, 34 S.E. 1024, 1900 Ga. LEXIS 271 (1900).

RESEARCH REFERENCES Am. Jur. 2d. 31 Am. Jur. 2d, Exceptions, §§ 16-18, 33, 36-119, 152, 159-161, 164, 177, 186. 40 Am. Jur. 2d, Homesteads, §§ 16, 18, 40 et seq., 78 et seq., 146, 162, 167 et seq.

ALR. Estate or interest in real property to which a homestead claim may attach, 74 A.L.R.2d 1355.