Jones v. Jones

47 Iowa 337 | Iowa | 1877

Adams, J.

•i. do-webI Row assign-I.' Where an estate consists of several tracts, it is proper to assign to tbe widow, as her distributive share, so much of one or more tracts as will constitute one_^r(j va[ue 0f the whole. We so held in Montgomery v. Horn, 46 Iowa, 285, and after a careful consideration of the arguments now presented against such rule we are satisfied that it is correct.

3 referees. II. The Code provides, Section 2443, that the widow’s share may be set out by referees appointed by the court. It will be seen that the statute contemplates that there shall be more than one. The widow’s share, then, should not be set out by one. It seems clear that it should be done as the concurrent judgment of more than one, and, whatever number may be appointed, it would be better that the judgments of all should concur. If the share is set out upon the judgment of only one, the proceedings, to say the least, are not entitled to the same respect to which they would otherwise be.

In this case three referees were appointed. Had they all inspected all the real estate, there would be a strong presumption that their concurring judgment in regard to its value was correct. Their appointment was made, we -must presume, after notice to the parties interested. They were selected, we must presume, with reference to their especial fitness for the duty assigned. If the duty had been discharged in the manner which the statute contemplates, their report should be set aside only upon strong evidence that injustice had been done.

As it is, it does not appear that more than one referee examined the Warren county farm. However competent he might-be to appraise it, his judgment at best is but the judgment of one man; and, upon looking into the evidence, it appears to us that there is great reason to apprehend that he made a mistake. He appraised the farm at thirty dollars per acre. Four witnesses were introduced, wrhose average estimate is about twenty dollars per acre. The estimate of the referee cannot be said to be sustained by any witness. One Wright, to be sure, brother of the widow, was introduced, and testified that, as lands were rated in that neighborhood, the farm in question would be worth forty dollars an acre, but he does not say that in his judgment the land was worth what it was rated at. One Buxton was introduced, who testified that he once owned the farm, and used to think when lie owned it that it was worth thirty dollars per acre. He does not say that in his judgment now it waá worth that then, and, what is of more importance, he expresses no opinion as to its value at the tiriae the widow’s share was set out. Indeed, he says that he has never seen it since he sold it.

We think that the referee’s report must be set aside, and new referees appointed.

Reversed.