Opinion
23087.
SUBMITTED SEPTEMBER 15, 1965.
DECIDED OCTOBER 7, 1965. REHEARING DENIED OCTOBER 19, 1965.
Equitable petition. Fulton Superior Court. Before Judge Boykin, Emeritus.
Wendell C. Lindsey, Wayne Jernigan, for plaintiff in error.
James F. Cox, Paul Anderson, contra.
The amended petition of Mamie Hill against Sarah B. Hill et al., alleges fraud in the procurement of a judgment of the court of ordinary setting aside to Sarah B. Hill as the widow of Will Hill described property as a year's support, and that "plaintiff is the widow of Will Hill, and is entitled to have the aforesaid real property set aside to her as a year's support." Thereafter, an amendment was filed striking paragraph 5 which alleges that petitioner gave Will Hill the money with which the land was bought and substituting in lieu thereof an allegation that she gave him the money to buy the land for her, and he took title in himself; and it was sought by such amendment to establish an implied trust ( Code § 108-106; Hudson v. Evans, 198 Ga. 775, 32 S.E.2d 793; Shivers v. Hunnicutt, 220 Ga. 620, 140 S.E.2d 872); yet the irreconcilable conflict in the allegation in paragraph 11 that petitioner is entitled as the widow of Will Hill to have said property set aside to her as a year's support, which can only mean that the property belonged to Will Hill, and the amended paragraph 5 that petitioner is the owner thereof, subjects the petition to demurrer. On demurrer, allegations not favorable to the petitioner will be accepted rather than contradictory favorable allegations. Thus the petition is in fact only a petition to set aside the ordinary's judgment, and fails, since no fraud is alleged to prevent timely objection by interested parties in that court. Smith v. Smith, 187 Ga. 743 ( 2 S.E.2d 417); White v. Wright, 211 Ga. 556 ( 87 S.E.2d 394), and cases cited therein; Hubbard v. Hubbard, 218 Ga. 617 ( 129 S.E.2d 862). The exception being to the judgment dismissing the amended petition on demurrer, it is without merit.
Judgment affirmed. All the Justices concur, except Mobley, J., not participating for providential cause.