Barnes v. Carson

59 Ala. 188 | Ala. | 1877

MANNING, J.—

At the hearing, the chancellor held that ■complainant was entitled to dower in the land described in the bill, unless she had a statutory separate estate equal in value to her dower interest; and that there should be a reference to the register as master, to inquire into and report at the next term of the court, upon the matter of complainant’s .separate estate, and the value of such dower. A decree was made accordingly; and upon the coming in of the master’s report, a decree was passed at a subsequent term, granting the dower prayed for.

The only objections assigned to the decree of reference, are, that it declares Mrs. Carson entitled to dower ; that it refers it to the master to ascertain whether she had a statutory separate estate; and that it referred to him matter on which the ■equity of the bill rested. No other point is brought out by the assignment of errors to this decretal order, or the argument upon it.

The facts, that complainant was the widow of Thomas A. ■Carson, and that he died seised of the land described in the bill, and that it was purchased by defendant Barnes, at the sale thereof, made by the administrator of Carson’s estate,— .are not disputed. From these it followed that she was entitled to dower in the land, unless she had such an amount of statutory separate estate, as under the law, would deprive her of it.

Whether she did have such separate estate, and the value thereof, were certainly things proper to be ascertained by a reference to a master. They were not abstract questions of law, but matters of fact. The parties could, upon such inquiry, produce the evidence, documentary or otherwise, on which they respectively relied. The conclusions, though of the master, if not satisfactory to one side or the other, were of course, not binding, until confirmed by the chancellor. But a reference was a proper way of getting at the facts and, if parties required it, of having the evidence of them reported for the consideration of the chancellor, upon exceptions to the report.

The second objection to the decree of reference was, therefore, not well taken.

And what we have said in respect to it, shows that the third objection is also without foundation. The decision of the law of the case was not thereby transferred to the register.

The report of the register as master, showed that he appointed a time for the investigation, gave notice thereof to the parties, and was attended by the solicitor for complainant. After hearing some evidence of the value of the use of the property, or rent thereof, he adjourned investigation to another day, of which also he gave notice. And in respect to the alleged statutory separate estate in complainant, he reported that no evidence thereof was offered.

No exception was filed or made to the report; nor was any xe-reference asked. The report consequently was confirmed; and upon the ground that no separate estate to bar complainant of her claim, was shown, a decree was rendered granting dower as prayed.

It is urged that the evidence in some of the depositions shows that she was in possession of property in Montgomery and said it was her separate estate. This is true; and it justified the reference ; at which this evidence might have been introduced, and if introduced might have been controverted by the production of the title-deeds and other evidence, showing that the property belonged to some one else. We cannot know what the result of such a contention would have been, and that it was not declined because defendants had ascertained that complainant did not own the property.

Let the decree of the chancellor be affirmed.

Stone, J., mot sitting.