Smith v. Smith , 39 Ga. 226 ( 1869 )

Warner, J.

The question involved in this case is, whether the amount of the sale of an intestate’s land sold at. an administrator’s sale, is conclusive evidence of the value of that land, as against the widow of such intestate, who elected to take an amount of money to belong absolutely to her in lieu of her dower in the land, as provided by the 1761th section of the Bevised Code. The widow on the death of her husband was entitled to an estate for life, in one third of the lands according to valuation, of which the husband was seized and possessed at the time of his death. Code 1753. By the 1760th section of the Code it is declared, that “ with the assent of the executor or administrator of the estate, the widow may elect a life-estate, in one third part of the proceeds of the sedes of the land, or any distinct tract or tracts of land, in lien of the dower in such land. In which event, such third part of the proceeds of the sale shall be invested by the executor or administrator, under the direction of the Ordinary, where his returns are made, and the annual income thereof paid to the widow during her life.” By this section of the Code, the widow gets, if she so elects, the annual income of one third part of the proceeds of the sale of the land during her life. But by the 1761st section of the Code, it is provided, that “with the assent of the executor or administrator of the estate, and the approval of the Ordinary, the widow may elect in lieu of her dower, an amount of money to belong absolutely to her, to be estimated and determined by the commissioners appointed to assign dower, and whose report shall be subject to the same objections, as are admeasurements of dower in land. Both before the Ordinary and on the return of the^ report of the commissioners, any person interested in the question, shall be allowed to become a party and be heard. The amount so awarded shall be paid in preference to all other claims out of the proceeds of the sale of the land.” The question made in this case arises under the latter section of the Code, the widow having elected to take an amount of money to belong absolutely to her, in lieu of her dower in the land. This amount of money, when estimated and determined by the commissioners, is to be paid out of the proceeds of the sale of the land. The law provides the mode and manner, in which the land shall be sold, and when so, fairly and publicly, sold, the amount for which the land sold, at such fair and public sale, is conclusive upon the widow who has elected to take an amount in money, to belong to her absolutely, in lieu of dower, to be paid out of the proceeds of the sale of the land. Such sale, in our judgment, is the only proper and legal mode by which the value of the intestate’s lands can be ascertained. This provision of the Code, as well as the 1760th section, contemplates, that the land shall be sold. How sold ? Most unquestionably to be sold, as the law prescribes; and when so sold, the widow is to have the money which she has elected to take, paid to her out of the proceeds of that sale. The sale of the land, as provided by law, ascertains and determines the value thereof. The amount for which the intestate’s land sold at such sale constitutes “ the proceeds of the sale of the land.” And the widow is entitled to have her dower estimated out of the proceeds thereof, from the death of her husband, and the value of her life-estate estimated from that time during her life.

On the trial of the issue made between the parties in the Court below, the Court charged the jury among other things that “in estimating the amount of money to be allowed Mrs. Smith, in lien of her dower, the amount the land brought at the administrator’s sale is not conclusive, and you arc allowed to consider all the testimony before you on that subject.” This portion of the charge of the Court, in view of the facts of this case was error. The council for the objectors requested the Court in writing to charge the jury as follows : “ That the jury cannot estimate the increase of the value of the land since its sale, arising from causes since the sale,” which request to charge, was refused. In our judgment, the charge as requested, should have been given to the jury, and the Court below erred in not charging the jury as requested, as well as in the charge given to the jury in relation to this point in the case.

Let thejudgment of the Court below be reversed.