9 Ga. 189 | Ga. | 1850
By the Court.
delivering the opinion.
His creditors, if need be, perhaps might compel the return of the advancement into the common stock, in order to get at his full interest in the estate. If he has been advanced more than his share, he can keep it. The Statute takes nothing away that has been given to any of the children. Edwards vs. Freeman, 2 P. Williams, 443. 2 Williams’ Executors, 1070.
The right to hold on to what has been given, and that too, under the Statutes, both here and in England, is wholly irreconcilable with the idea of advancements or settlements, being part of an estate subject to distribution. In all that belongs to the estate, and in nothing else, the widow and the children share equally. Thus, the Act of Distribution leaves the widow and children their ’ interests, both being in the estate and not in the advancements. The Legislature of 1821, knowing that, by law, the children unadvanced had no power over advancements, and perceiving the great injustice of permitting those children, who had been advanced, to come in notwithstanding, and share equally in the estate of the father, came to the relief of the unadvanced children and passed the Act of 1821. It is by that Act that they are at all interested in advancements. That Act provides, that when children have been advanced, or settlements have been made upon them in amount equal to a full share in the estate, they shall have no more; and when the advance or settlement is not equal to a full share, then they are entitled to so much of the estate as will make the shares or portions of all equal. In this Act, widows are left out. It makes provision for children alone. The widow is left as she stood under the Act of 1804. The Judges in convention have decided this question, as we now determined:. A similar decision has been made in South Carolina under the Statutes of that State. Wright vs. Wright, Dudley, 251. 3. Dessausure, 199. Prince, 233, 247.
It would seem that if the widow was entitled to share in advancements made to children, children ought lobe entitled to
The Act of 1841 does not change this Act of 1807, except, simply, to make the year, within which she is required to, elect, to commence from, the granting of letters testamentary, or. of administration, instead of from the death of the husband: By. the
The privilege of election is personal to the widow. She cannot transmit by will. She has not undertaken to do so in this case. The executor claims it by virtue, simply, of his character as executor. It is his duty to administer his testator’s estate. A privilege to elect, which is personal to the testator, does not survive t© his executor. Her heirs have no interest in the real estate of her husband, because, at her death, she was tenant in dower, and no more. They are interested only in what constitutes her estate at her death. Whether, if the widow had, in her will, declared her election, within the twelve months, such
If the widow fails to elect before her death, the executor cannot elect; for then, there are no two estates between which to choose. The widow chooses between her dower, which is a life estate for her life, and a child’s partin fee, but when she dies, her life estate determines. If the executor can come in after her death, and take the fee, it is not an election between that and dower, but it is an independent appropriation of an estate, in which the widow had no interest, for the benefit of her heirs. The Statute contemplates no such thing — the widow is alone its beneficiary. Moreover, if the executor may, in this case, take the child’s part for the benefit of the widow’s heirs, the result is—
1st. That the widow has enjoyed the dower estate.
2d. Her heirs get the fee, in a child’s part, and
3d. The heirs or distributees of the husband are defeated in their remainder in fee, in the estate in dower, upon the death of the widow. These things are in conflict with the law and with the justice of the case. It is argued that the law gives twelve months to make the election — that the widow died before the year expired, and it may have been her purpose to elect, and from ought that appeal's, she would have elected, had she lived within the year, and therefore, the executor ought now to elect for her. This reasoning is plausible, but upon examination, evaporates into thin air. Those considerations, which I have before urged, are conclusive against it. Non constat, that she would have elected had she lived. Her purpose to do so does not appear, and that which does not appear, does not exist. The contrary does appear; for by the terms of the law, until she does in fact elect, she is held to have taken her dower. In this case she did not elect; she is, therefore, held to have taken
Let the judgment be affirmed.