Smith v. Smith , 36 Ga. 620 ( 1867 )

Walker, J.

Under the facts of this case, the Court very properly held that an assessment should be made after the approval by the Ordinary of the election by the widow to take money in lieu of dower. A sum of money had been set apart for her by commissioners, and the creditors of the deceased were resisting a judgment of the Court awarding it to her. Pending this issue, both parties appeared before the Ordinary, and by agreement it was “ordered that the election of a sum of money in lieu of dower, to belong absolutely to the widow, to be determined by commissioners according to law, be approved, without approving of the sum already assessed.” The proper construction of this order, passed by “ both parties agreeing thereto,” is that an assessment should thereafter be made by commissioners appointed for the purpose. The Ordinary expressly declined to approve the assessment already made, and it is unreasonable to suppose that the creditors intended to abandon their objections to the amount awarded by the commissioners, for that urns the whole controversy. The order of the Superior Court setting aside the award of the commissioners was right. Of course, under the proceedings already instituted, new commissioners may be appointed, and the amount of money to belong to the widow ascertained.

The rule adopted in this case is better, and in accordance with the provisions of the Code. Sec. 1761 of the Revised Code provides for the election in lieu of dower of an amount of money to belong absolutely to the widow, with the assent of the administrator and the approval of the Ordinary. This would seem to require, as a condition precedent to her right to a sum of money to belong absolutely to her in lieu of dower, the approval of the Ordinary; and we think as a general rule such approval should be obtained before commissioners are appointed. If the widow elect to take dower, she can have that assigned to her; if she elect a life-estate in one-third part of the proceeds of the sales of the land in lieu of dower, with the assent of the executor or administrator of the estate, she can have that — Eev. Code, Sec. 1760; and with the assent of the executor or administrator, and the approval of the Ordinary, an amount of money may be awarded to belong to her absolutely, in lieu of her dower. But in either event she should elect which she will take, and then the proceedings should be taken to carry out her wishes, if it can be done, according to law. Many reasons might be given why the rights of all parties are more likely to be secured by this course than by the appointment of commissioners in advance of her election of which she will take; but the expressed will of the Legislature is a sufficient reason, without more.

Judgment affirmed.