Forester v. Watford , 67 Ga. 508 ( 1881 )

JACKSON, Chief Justice.

The will provides that the daughter of testator, Elizabeth R. Harris, shall have certain premises of the testator, and she “binds herself to take care of me,” (testator) “ and her mother as long as we live.” Possibly under the ruling in 33 Ga., 385, this provision might be construed as a charge on this land bequeathed to the daughter, and therefore it may operate in law to put the widow on her election between taking it and dower, but nothing is shown in the record sufficient to sustain a verdict that she did elect that in lieu of her legal title to dower. The will must not only make a case of election, but the widow must do some act showing her acceptance of the provision by will before her legal estate for life in dower is defeated. All that she did, so far as this record shows, is the reception of a trifle of money from the administrator with the will annexed, after the death of her daughter, and to continue to live with her daughter for a few months after the death of her husband until the daughter died in less than a year after the testator. She filed the petition for' dower within about two years of the death of her husband, and then, and not till then, made her election ; and that elecwas to take her dower.

It would be an outrage to deprive her of it because she lived vvith her daughter, who controlled the property before her husband’s death, and with whom she and her husband lived prior to his death, and after that daughter’s death received a little money from the executor of the will.

In view of-the will itself, and the peculiar circumstances in which thé widow .was left, the verdict of the jury is right and should stand, no matter what inaccuracies may be in the charge, if, indeed, there be any.

The truth is that it was confidence in the daughter, rather than a charge on the land, that indu.ced the testator to confide his wife to her support after his death as well as to trust his own and hers, both, to her before his death.

The fact that she wanted Forester still to- manage her dower, if she got it, is no proof of election or acceptance of the provision in lieu of it.

There is no material error in the charge, the facts demand the verdict, and the judgment is affirmed.

Judgment affirmed.