Baker v. Citizens & Southern National Bank

147 Ga. App. 188 (1978)

248 S.E.2d 224

BAKER v. CITIZENS & SOUTHERN NATIONAL BANK et al.

56111.

Court of Appeals of Georgia.

Argued June 26, 1978.

Decided September 12, 1978.

Nicholson & De Pascale, Ernest De Pascale, for appellant.

H. T. Quillian, Jr., Lewis, Hunnicutt, Taylor & Daniel, A. E. Daniel, III, J. Wayne Hadden, for appellees.

SHULMAN, Judge.

Appellant applied to the probate court for a second year's support. The probate court dismissed and disallowed the application. An appeal was taken to the superior court. Appellees filed motions for summary judgment with an accompanying affidavit raising the defense that at the time of filing the application for a second year's support, the estate still had debts to pay which included certain administration expenses and potential additional taxes. Appellant filed no opposing affidavits or documents of any kind. The superior court granted appellees' motions for summary judgment. We affirm.

1. Code Ann. § 113-1004 provides: "When an estate is to be kept together for a longer time than 12 months, and there are no debts to pay, and a widow and minor children to be supported out of said estate, they shall have a year's support for each year that such estate may be kept together, and the appraisers aforesaid may act in the same capacity for the second and any subsequent year, or new appraisers may be appointed by the judge of the probate court to assign such support after the first year."

The facts of this case are very similar to those in Woodall v. First Nat. Bank of Columbus, 118 Ga. App. 440 (2) (164 SE2d 361), holding that costs of administration, as well as taxes, are debts of the estate. The court granted summary judgment and disallowed the application for a second year's support in that case. See also Martin v. Gaissert, 139 Ga. 693 (78 SE 40); and Crummey v. Crummey, 58 Ga. App. 57 (197 SE 501).

2. It is incumbent upon appellant to make some showing in refutation of the prima facie showing of appellees that they were entitled to summary judgment. Peek v. Southern Guaranty Ins. Co., 142 Ga. App. 671, 676 (236 SE2d 767), revd. on other grounds, 240 Ga. 498 (241 *189 SE2d 210).

"It is the duty of each party to present his case in full at the hearing on motion for summary judgment. [Cit.]" Colodny v. Dominion Mtg. &c., 141 Ga. App. 139, 141 (232 SE2d 601).

Appellant, by failing to submit opposing affidavits or other documents, has in effect admitted the sworn contentions of appellees' motions for summary judgment, and the grant thereof was also proper in that concept.

Judgment affirmed. Bell, C. J., and Banke, J., concur.