133 Ga. 87 | Ga. | 1909
Joseph N. Guerard died testate. By his will he devised and bequeathed to his wife for and during her natural life, or until she should marry again, a one-half interest in al’l .the property, real, personal, and mixed, of which he might- die possessed. After her death or marriage the said one-half interest was to revert to and become a part of his estate. The residue of his estate was devised and bequeathed to his infant daughter, and, in case of her death without children or descendants of children, it -was provided that the property should go to the brothers and sisters of the testator. The widow of the testator elected to take a child’s part in lieu of dower. She contended that under such election she was entitled to have one half of the real estate of the testator delivered to her in fee simple. The administrator with the will annexed, being in doubt as to whether she was entitled to have this claim sustained notwithstanding the will, filed his equitable petition for direction. The presiding judge held, that, regardless of the devises in the will, the widow was entitled to have one half of the real estate in fee simple as a child’s part in lieu of dower. To this judgment exception was taken.
In 1804 an act was passed which provided, that “When any person holding real or personal estate shall depart this life intestate, the said estate, real and personal, shall be considered as altogether of the same nature and upon the same footing, so that in case of there being a widow and child, or children, they shaE draw equal shares thereof, unless the widow shall prefer her dower, in which event she shall have nothing further out of the real estate than such dower; but shall nevertheless receive a child’s part or share out of the personal estate.” Cobb’s Digest, 291. It will be observed that the right of election there given was only in reference to cases of intestacy, and had no application to property which was devised by will. It might be that it would apply to property touching which there was an intestacy, although a part of the estate might be disposed of by will. But as to property which was devised, it did not take effect. In 1807 an act was passed, ■which provided that “It shall be the duty of all widows, within one
Reversed.