Talbot v. Talbot , 1881 R.I. LEXIS 31 ( 1881 )

This is an action of dower in which commissioners were appointed under Gen. Stat. R.I. cap. 218, § 11, to ascertain an annual sum to be paid as dower, together with damages for the detention thereof after demand. The commissioners reported an annual sum of $100, and ten cents damages for a little over eight months' detention. The plaintiff excepts to the report for error in the matter of the damages, and contends that she is entitled to damages for the eight months at the rate of $100.00 per annum, though she admits that her late husband left no real estate except his mansion-house and the message belonging thereto, and that she has been in the exclusive use and occupation thereof ever since his decease. The question then is whether she is entitled to full damages for the detention when the result of the detention has been to leave her in the enjoyment of the entire estate, as of right under the statute. We think not. Having had more than her dower during the detention, she ought not to have full damages for the detention, the same as if she had had nothing. And so it was decided under a statute similar to ours in Perrine's Executors v. Perrine, 35 Ala. 644, damages being given in that case only in respect of the estate not occupied by the widow.

The exception will therefore be overruled and judgment rendered in accordance with the report.

Order in final judgment entered June 24, 1881: "And now, towit, on the sixty-ninth day of said term, upon reading the reportof the commissioners appointed by the court to ascertain thedower of the plaintiff and her damages, filed in the clerk'soffice on the 25th day of February, A.D. 1881, and the exceptionof the plaintiff to the said report filed in said office on the23d day of March, A.D. 1881, and hearing what was alleged by thecounsel for the respective parties, it is considered that thesaid report do stand confirmed, and that the plaintiff do recoveragainst the defendants as well her seisin of a third part of therents, issues, and profits of the freehold in her writ anddeclaration mentioned, to hold to her in severalty to the amountor value of one hundred dollars per annum, as the sum of tencents for her damages by the said commissioners ascertained tohave been by her sustained on occasion of the detention of herdower, and also her costs of this suit, to be taxed by the clerk.And hereupon the plaintiff prays a writ of execution for suchdamages and to put the plaintiff in perception of said one thirdpart of said rents, issues, and profits to the amount or valueaforesaid, and it is granted to her issuable and returnableaccording to law."