Farmers Banking Co. v. Key

Fish, J.

1. The act of December 10, 1807 (Cobb’s Dig. 227), provided that “ It shall be the duty of all widows, within one year after the death of their husbands, to make their election or portion out of the estate of the deceased; and any such widow so fading to make her election shall be considered as having taken her dower or thirds, and shall forever after be debarred from taking any other part or portion of the said estate.” This act was amended December 9, 1841 (lb. 230), by changing the time within which widows should make such election from “within one year after the death of their husbands” to “within one year after letters testamentary or of administration have been granted on [the] husband’s estate.” Section 3355 of the Civil Code, setting forth the rules of distribution, provides in paragraph 3 that “ If there are children, or those representing deceased children, the wife shall have a child’s part, unless the shares exceed five in number, in which case the wife shall have one fifth part of the estate. If the wife elects to take her dower, '.she has no further interest in the realty.” In paragraph 3 of section 4689 it is declared that dower may be barred “by the election of the widow, within twelve months from the grant of letters testamentary or of administration on the husband’s estate, to take a ■child’s part of the real estate in lieu of dower.” The Code of 1863 •contained sections in the exact language of those just quoted from the Code of 1895. Construing these sections of the Code together .and in connection with the statutes from which they were codified, *304 and in the light of the decisions of this court thereon, we come to the conclusion set out in the first headnote. See Beavors v. Winn, 9 Ga. 189 ; Wilson v. Bell, 45 Ga. 514 ; Nosworthy v. Blizzard, 53 Ga. 668 ; Truett v. Funderburk, 93 Ga. 686 ; Snipes v. Parker, 98 Ga. 522 . The ruling now made is directly supported by that made in Snipes v. Parker, supra. That, being a decision rendered by two Judges, is not binding authority, and its correctness was questioned here; but, after mature deliberation, we adhere to it as expressing the true law of the question involved.

2, 3. Counsel for plaintiff in error contend that Mrs. Key, having been in possession of the land since her husband’s death and until after her right to dower had been barred by lapse of time, a presumption arose that she intended to take a child’s part; and Sewell v. Smith, 54 Ga. 567 , is cited in support of such contention. It is quite true that an election to take a child’s part may be presumed from conduct, as well as shown by evidence of an express exercise of this right, and the case cited is direct authority for this proposition; but the facts of that case and those of the case in hand are essentially different. There the intestate died leaving as his heirs at law a widow and two children. She remained in possession of the land until long after her right of dower was barred, without making any express election. It was held that a legal presumption arose that she elected to take a child’s part, especially so when such course was most manifestly to her interest. There was nothing in that case tending to show that she did not intend to take a child’s part, except the fact that she had not expressly done so. It appeared that she had kept possession of the land, seemingly in her own right, until long after her right of dower had been barred; and the decision rendered proceeded upon the idea that every person would accept a beneficial interest and would naturally, where an election was presented, take that which was the more beneficial. In that case the circumstances warranted a presumption that the widow intended to take some interest in her husband’s estate, and the court simply held'that, this being so, naturally she would prefer a child’s part; for, under the facts there appearing, that gave her one third in fee, whereas if she took dower she would only obtain one third for life. In the case now under consideration, though the widow remained in possession of the land until her right' of dower had been barred, there was evidence to the effect that she *305 did not hold it for herself, but that, under an agreement with the adult children of the intestate, she held it for the use of herself and his minor children until the youngest of them should become of age, and then the land was to be divided among all the children. She testified positively that she did not elect to take a child’s part and never intended to take it. Conceding, therefore, that in the present case it was an open question whether the conduct of the widow did or did not amount to an election to take a child’s part, the issue was fairly submitted to the jury, and their finding that she did not so elect was sufficiently supported by the evidence.

4. Whether the requests to charge, which are set out in the report preceding this opinion, were abstractly correct or not, there was no error in refusing to give them, because they had no bearing on the issues involved. A widow who does not take a child’s part or dower may not, relatively to the heirs at law, be entitled to a support out of the estate, but this is a question between her and them, and not between her and her creditors. The only other request to charge which the judge refused was fully covered in his-general charge.

The foregoing deals with all the questions argued before this court. Judgment affirmed.

All the Justices concurring.