89 Ga. 632 | Ga. | 1892
Commissioners appointed to assign dower to Mrs. Catherine Flowers, widow of John Y. Flowers, assigned to her one hundred and sixty-five acres of farming land and a town house and lot. George N. Flowers objected, as executor of John Y. Flowers and individually, upon the ground that John Y. was not seized and possessed at the time of his death of the lands in which the dower was admeasured. It appeared upon the trial that George N. claimed the land in question under a deed made to him by John Y. on August 14th, 1875, in consideration of $5,500. The will was dated February 16th, 1884. The jury found the issue in favor of Mrs. Flowers, and George N. made a motion for a new trial, which was overruled, and he excepted.
1. There was evidence tending to show that the deed was made by John Y. Flowers for the purpose of defeating his wife’s right to dower; and the court in its charge made the right depend upon whether this intention was established, without regard to whether there was an
Though there is no direct adjudication of this court upon the question, our decisions, so. far as they go, are in harmony with what is here said. The same view is upheld in other States having statutes similar to our own. See 5 Am. & Eng. Enc. of L., tit. Dower, pp. 886,912; Stewart, Husb. and Wife, §268; 1 Scribner on Dower, chap. 29, §18; ed. of 1883, p. 616. In Connecticut the statute confers upon the widow dower in “one third part of the real estate of which her husband died possessed,” the word “possessed,” as here used, being held to be synonymous with “ seized.” ' In the case of Stewart v. Stewart, 5 Conn. 317, the husband executed a deed conveying all his real estate to his children, and placed it in the hands of a third person to be
2. The court below held that even if part of the purchase money of this property had been paid in good faith by the grantee, he acquired no title if the note for the remainder was not paid before the grantor’s death. The charge on this point was as follows : “ If George N. Flowers, during the lifetime of his father, John Y. Flowers, had in good faith paid this purchase money, . . $5,500, $1,000 at • the beginning and $4,500 afterwards, then the title would have been transferred to him, so that it would not have been in John Y. Flowers at his death, unless it might have been disregarded on account of some fraud against the widow by the parties involved in that title; that I do not charge you at this time, but I may do so before I get through. Then if that had been the case he would stand as the possessor as I say, without more, and the title would be in him at the death of John Y. Flowers. But if you should believe from the evidence that that note was not paid during the lifetime of John Y. Flowers, then, so far as that goes, it would not convey to him such title as might be consummated by the payment of the purchase money.”
From what we have said in the preceding division of this opinion, it will be seen that the right to dower in this case turns upon the question of a real, as distinguishable from a merely colorable sale and conveyance ; and this being so, it does not matter whether the whole of the purchase money was paid in the lifetime of the husband or not. If the sale was real and the purchase money was in fact due and owing by the purchaser as a bona fide debt against him, dower would be
3. It was further alleged as error that the court allowed the applicant for dower to read in evidence the will of John Y. Flowers, over objection that the same was irrelevant. This will provided: for the payment of the testator’s debts; that his executors should sell at public outcry, after advertisement, all his property real and personal, and collect all his notes and accounts; and that proceeds arising from the sale of the property and money collected on the notes and accounts, after the payment of the debts, should be divided equally, share and share alike, between the six children of testator, of whom George N. Flowers was one. George N. was appointed'executor. It was contended that the will was relevant testimony to show that the widow was ignored, and that John Y. Flowers, at the time of its execution, was endeavoring to defeat his wife of all interest in his estate and using George N. Flowers to carry out his plans. In reply to this it is enough to say that if the husband, as we have shown, had a legal right to intend the defeat of dower and to effectuate the intention by an actual and real conveyance, a will subsequently executed, in which he made no provision for the wife, would throw no light on the present controversy, which is simply whether the conveyance was real or only colorable and pretended.
4. Error is also assigned upon the admission of testimony relating to family disturbances between the husband and the wife and between her and one of his