Churchill v. Bee & Co., 66 Ga. 621

Churchill v. Bee & Co.

66 Ga. 621 | Ga. | 1881

JACICSON, Chief Justice.

1. The motion to dismiss the bill of exceptions is not granted. The decree of the court, not the verdict of the jury, is excepted to. The verdict is not complained' of, and no motion for a new trial by jury is asked for. In cases like this, where the decree bn the verdict is alone excepted to, it is not necessary to bring the testimony here, but the pleading and verdict and decree are the only matters needed to elucidate the errors complained of.' The writ of error thus founded on errors of the chancellor in framing the decree will not be dismissed for want of the testimony before the jury; for the verdict not being assailed is the undisputed truth of the case.

2. There can be no question but that the decree should *632follow the verdict as respects all matters of fact submitted to the jury, but'matters of law are for the court. It was right therefore for the chancellor to disregard any deductions of law made by the jury. Certain points and questions of fact were put to them, and on their answers as to facts so submitted by interrogatories and admitted^ in the pleadings to be true, the chancellor will deduce the law of t'he case, without regard to what the jury may think is law and insert in such a verdict.

3. In regard to the lands which the widow sold individually as well as as executrix, she being sole executrix, her son not qualifying, she is precluded from taking dower therein. She passed the title out of the estate as executrix, and perfected it so far as her claims of every sort are concerned by making also her own individual deeds to that property. These acts estop her from claim of dower therein.

4. So far as the other realty is concerned, it seems from the facts that she sold it, bought it herself, paid her son part of his half, and mortgaged the property to him to secure the payment of the remainder of his share. These facts show tnat she elected to take under the will of her husband, and not to claim dower in these lands also, and the court below decreed accordingly, and in our judgment decreed correctly.

5. Where a widow acts ignorantly of facts in making an election not to take dower, generally she will not be. held to such an election, because she has not chosen in the light and could not see what she was doing. And the mere fact that she executed the will, will not impair the exercise of such choice, but if in executing it she does acts, and involves third persons in so.acting, which do not-at all consist with her claim of dower, if she sells and mortgages it and treats it as assets, such acts should be construed to manifest her election to take under the will, and to exclude the right to dower in such property. Nor can she, in such a case, set up ignorance of the facts; she *633was bound to know the facts. The entire property of the testator is bound for .his debts, the whole is assets, a trust fund to pay debts, and she is the trustee to apply the fund to the creditors’ debts. The fact that she is executrix does not make her less such a trustee and liable as such, and it would be strange if a trustee should be ignorant of the condition of the fund, and be permitted to plead that ignorance as a reason why the fund or part of it should be decreed to be her own property under a title adverse to that which she received the property under, and which she recognized as trust property.

The ruling and decree of the chancellor accords with these views, and are approved.

6. It was not pressed upon this court that the chancellor erred in not finally closing up this estate and rendering a final decree. The point is in the bil of exceptions, but was not insisted on. The ends of justice, in this particular case, perhaps, can be better reached by the course pursued by the court below in ordering the administrator with the will annexed to complete his administration in and under the direction of the ordinary. Some of. the priorities of the creditors and other details are not fully covered by the verdict and decree, and while we hold that a court of equity may finally dispose of an estate whenever it takes jurisdiction of it, and should do so in all ordinary cases to save expense, yet, in this case, for the above reason, and because the point is virtually withdrawn, this court will not interfere.

7. Before the widow on settlement can claim her year’s support out of the funds now on hand, she must account for that which she herself, administered, and satisfy the court that the claims she paid to creditors (if any were paid) were of higher dignity than the debts of creditors •in the case now pending.

8. The point in regard to the counsel fees is not pressed. The jury should fix their value on proof, and the chancellor follow that verdict and decree that sum; but the *634amount fixed by him is reasonable and will not be interfered with, especially as the counsel for plaintiff in error does not urge the point.

The first, second and third grounds of exceptions were withdrawn.

Judgment affirmed.