Smith v. Smith

When the widow of an intestate, elects after a fair and public sale of his lands, to take an amount of money absolutely in lieu of his dower therein, as provided by the 1761 section of the Code: Held, that the amount of the sale of the land at such public sale, is conclusive evidence of the value thereof, and that the widow is entitled to have her dower estimated out of the proceeds of such sale, from the death of her husband, and the value of her life-estate estimated from that time during her life.

Dower. Tried before Judge Pope. Floyd Superior Court. March Term, 1869. William R. Smith died in May, 1864, leaving his widow, Anna E. Smith, surviving him. In August, 1866, commissioners appointed to assign her dower, assigned to her four lots of land embracing the homestead, to-wit: Numbers 233, 248, 273 and 288, in the 23d district and 3d section of Floyd county, for life, or in lieu thereof, absolutely, $12,000, if she preferred it. She elected to take the money. The administrators of N. N. Smith, deceased, and Daniel S. Printup, creditors of said William R. Smith, resisted this assignment, and it was set aside for irregularity. See 36 Ga. R., 620. Commissioners again undertook to fix the amount due her absolutely, in lieu of dower, and put it at $15,000. The same creditors objected to this allowance, and formed an issue as to its fairness, etc. At the trial, it was agreed that the jury should, by their verdict, fix the sum, to be paid her in lieu of her dower. It was admitted that the widow was seventy-one years old in September, 1868, and it was agreed that the Northampton mortuary tables might be read, without proof, from “Reese’s Manual.” The objectors read in evidence, said mortuary tables, and the sale-bill, which showed that at different dates, from the 6th of March till the 2d of October, 1866, the lands of said William R., were sold, and brought in the aggregate, $46,745, and that at these sales the widow bought as follows: March 6th. Lot Number 7, Etowah Division, Eome, at..............................................§1,000 00 March 6th. Lot Number 8, Etowah Division, Eome, at.............................................§ 340 00 August 7th. Sixty acres of Number 246, 23d District, 3d Section...................................$4,800 00 August 7th. Six acres of Number 246, 23d District, 3d Section.................................$1,650 00 Eor the widow the evidence was as follows: Mr. Perkins testified that William E. Smith died, owning thirteen lots of land, and some fractions, the whole lots containing one hundred and sixty acres, and some of them more. Of this, four hundred acres was cleared, and one-third bottom land; the upland is now worth $20 00 and the bottom land $50 00 per acre. At least one hundred acres of No. 246 is worth $100 00 per acre. He owned also six acres of city lots, now worth $1000 00 per acre, and Nos. 7 and 8, Etowah Division, improved, and now worth $4000 00; considering the timber, the timbered bottom is now worth $150 00 per acre, etc. Upon cross examination, he said that he was the widow’s son, represented her at the sale, and bought some of the land for her; that the sale was fair, the widow consenting to it j the administrator stated, at the sale, that purchasers would get the land free from dower, and the widow bought said lands, expecting to pay for them out of her allowance in lieu of dower. She lived at the homestead till January 1867,. and since that on the lands so bought by her. Charles H. Smith testified that the two thousand acres of land owned by William E., were appraised at $90,000 00,. which he thought was a fair appraisement; that at the time-of the sale there was great depression, and since the sale,, many circumstances occurred to make the land very valuable,, some of it near the city of Eome, bought by other parties,, had been laid off into lots, and was selling at $400 00 and some-at $200 00 per acre; all the land is now worth from $120,-000 to $150,000. Cross-examined, he said the sale was fair and legal in every particular; the widow was present by her son, consented to the sale, and bought some of the 'land, and that the value of the land had been greatly enhanced since the sale, by causes arising since the sale. One of her counsel testified that the lands originally assigned the widow were now worth $40 00 per acre, and that the remainder in them (after her dower estate) would not have sold for over $1,000 00; that the principal sale occurred in the fall of 1866, and to encourage bidding for the lands, N. N. Smith was present, waived his mortgage lein, and the widow authorized an announcement that the lands would be sold free from dower. At the October sale, Cothran and Sproul bought Nos. 233 and 243, at $5,700. Spkoux testified that his purchase was $3,200 worth, at $18 50 per acre, that he sold some of it on a credit for $125 per acre, and considered his whole purchase now worth $10,000, or $50 per acre. He said he gave for it what it was worth at the time of the sale. In rebuttal, the objectors read in evidence the assessment of August, 1866, for the purpose of showing the former assessment. There was some evidence that some improvements had been put on the lands since the sale, such as buildings. After argument the Court charged the jury, that “in estimating the amount of money to be allowed Mrs. Smith, in lieu of her dower, the amount the land brought at administrator’s sale is not conclusive, and you are allowed to consider all the testimony before you on that subject,” etc., and as he was about to conclude, counsel for objectors, handed him the following written request to charge : “The jury can not estimate the increase of the land .since its sale, arising from causes since the sale.” At the time counsel presented this request he stated that the substance of the request had already been charged. On reading the request, not audibly, the Judge overlooked the words “arising from causes since the sale.” He then charged the jury substantially as he had before, to-wit: “In estimating the amount of money which the widow ought to have, you cannot consider the increase in value or the enhancement in price of the land arising from any extraneous causes, such, for instance, as the improvements which some of the witnesses stated had been made on the land since the sale, nor from any causes whatsoever, other those inherent in the land itself, and constituting part of its real value at the time of the sale,” but he did not charge as requested. The jury allowed the widow, in lieu of her dower in the lands, $15,000 absolutely. The objectors moved for a new trial upon the ground that the charge of the Court was erroneous, that his refusal to charge, as requested, was error, and because the verdict was contrary to the evidence, etc. The Court refused a new trial, and error is assigned on each of said grounds.