45 S.C. 51 | S.C. | 1895
The opinion of the Court was delivered by
It appears from the records in this case that Mitchell Glover, on the 19th of April, 1875, departed this life intestate, being seized and possessed of a considerable amount of land, and leaving as his heirs at law his widow, the plaintiff herein, and four children, the defendants herein. Soon after his death, his administrator instituted proceedings to which all the parties herein were made parties, to marshal the assets of his estate. Under those proceedings the widow set up her claim of dower in her deceased husband’s land, and her claim was allowed; and accordingly a tract of 300 acres of land was set off to her as her dower. Another tract of land, containing 200 acres, which is the subject matter of the present action, was also set off to the widow and children as their homestead. Some time in March, 1894, the present action was instituted, in which partition of the homestead tract is demanded, and an account from the defendant, John Glover, of the rents and profits of said land, it being alleged that the said John Glover had rented said land for the year 1893, “agreeing to pay his cotenants as rent therefor the sum of $459, and that he is still in posession of part of said premises.” The defendant, John Glover, answered, denying the plaintiff’s right to partition, substantially, upon the ground that she, having elected to claim, and having accepted her dower in the lands of which her husband died seized and possessed, under the proceedings above referred to, is barred from claiming any
The parties having waived the right to a trial by jury, the case was heard by his Honor, Judge Benet, who rendered judgment sustaining the defense set up by the answer of John Glover, holding that plaintiff, by electing to take dower, had barred her right to take a distributive share of her husband’s estate, and was, therefore, not entitled to demand partition. From this judgment plaintiff appeals, upon the several grounds set out in the record, which need not be repeated here, as they present, substantially, but two questions: 1st. Whether the defendants are estopped by the proceedings heretofore referred to from questioning the rights of the plaintiff in the tract of land set off as a homestead under said proceedings. 2d. Whether the plaintiff, by electing to take dower, has barred herself of the right to claim a distributive share of her husband’s estate as one of his heirs at law.
There is no decision in this State, so far as we are informed, which in anywise conflicts with the case of Buist v. Dawes, supra. The cases of Horsford v. Wynn, 22 S. C., 309, and Calmes v. McCracken, 8 S. C., 87, simply recognize the right of a widow to claim both dower and homestead out of her deceased husband’s estate, but neither of these cases touch the question as to the nature of the widow’s interest in the land set apart as homestead, or rather the question, presented in the case now under consideration, as to whether the widow has such a legal estate in the land assigned as a homestead as would entitle her to demand partition thereof. In Yoe v. Hauvy, 25 S. C., 94, the question was presented whether laud, which had been set apart to the widow as a homestead, could be partitioned, at the instance of adult children, not living on the homestead with the widow, and the majority of the Court denied the claim for partition, notwithstanding the- provisions of the fourth section of the act of 1873, 15 Stat., 371, incorporated in the Gen. Stat. of 1882, sec. 1997, now to be found in sec. 2129 of the Rev. Stat. of 1893, which is in these words: “If the husband be dead, the widow and children, if the father and mother be dead, the children living on the homestead, whether any or all of such children be
Petition for rehearing was filed September 18, 1895, and remittitur stayed. The petition was refused October 11, 1895, on the ground that the Court had not overlooked, in the consideration of the case, any material point of law or fact.