Asbill v. Asbill , 24 S.C. 355 ( 1886 )

The opinion of the court was delivered by

Mr. Justice McGowan.

A. W. Asbill died intestate in 1867, possessed of a considerable property, consisting for the most part of several tracts of land. He left as his heirs at law, his widow, Elizabeth, and eight children. Being largely indebted, a bill was filed to sell the lands and marshal the assets. The widow claimed dower, and commissioners were appointed to lay it off. Three of them, L. P. Rutland, Charles Pardue, and William Powell, executed the writ and made return, which (as appears from the records of the office of the then commissioner in equity) was confirmed in general terms by an order of Chancellor Carroll, Nov. 13, 1867. It appeared that all the lands of the estate were sold except the tract marked “No. 1,” to which reference was made in bounding “No. 2,” as having been “assigned to widow as her dower.” The widow and her two youngest sons, Michael and Willie, lived on this place until she died in 1882, when this action was commenced by some of the other children to partition the same as of the estate of the intestate, A. W. Asbill, in the view that, having been assigned to the widow as her dower, her interest expired at her death, and the land is now subjectjo partition among all his heirs.

The younger sons, Michael and Willie, being in possession, answered, denying the right to partition. They claimed that their mother had fee simple title to the whole tract of 195 acres; that 133 acres of it were assigned to her in fee by the commissioners in dower as her one-sixth part in value of all .the lands of whicli her husband died seized, and the same was conveyed by her to them on May 26, 1871; and that afterwards, in February, 1872, she acquired by purchase from Lewis Gr. Asbill the remaining 34 acres, and also conveyed the same to them on February 13, 1874, and that they together now have a fee simple title to the whole of the said land.

Judge Fraser referred it to the master to take the testimony, which was done. Among other things, it appeared that the writ in dower and the return of the commissioners in the original bill of M. B. Asbill et al. v. Elizabeth Asbill et al., to marshal assets, were lost, and Judge Aldrich ordered an issue to be submitted to a jury to say “what was the return of the commissioners in dower, confirmed by Chancellor Carroll, Nov. 13, 1867.” The issue came on for trial before Judge Wallace. The testimony was read to the jury and, under the charge of the judge, they found in substance that the land assigned to Mrs. Asbill was assigned absolutely and in fee, and was not assigned for her life only. Whereupon the judge held, “that the preponderance of the testimony was in favor of the finding of the jury, which was approved. The assignment of one-sixth in value of the land having been confirmed by the court and not appealed from, the absolute right of Mrs. Asbill to the fee became fixed and cannot now be disturbed. It is a necessary consequence that her deed conveyed the fee to her two sons, Michael and William.”

From this decree the plaintiffs appeal upon various grounds, involving in substance these propositions: First, that Judge Aldrich erred in ordering an issue to determine “what was the return of the commissioners,” as it could not, according to law, have been other than an assignment for life; that the statute authorizing one-sixth of the fee simple value of the lands to be given for dower is limited to the case of an assessment of money in lieu of dower; but when lands are assigned it can only be one-third and that for life. Second, that Judge Wallace erred in not charging the jury as to what are the powers and duties of commissioners in dower, and as to the well defined methods and established usages of this State in assigning dower. Third, that he erred in submitting the issue to the jury and in approving their finding. Fourth, that he erred in finding that Mrs. Elizabeth Asbill purchased any of the land in dispute. “She did bargain for some, but never paid for it, and titles were never made to her, and the court misconceived the testimony on that point.”

This was a case for equitable relief, and Judge Aldrich had the right to order an issue to determine any fact as to which there was conflicting testimony, and which was pertinent to the decision of the case under consideration. As we understand, the issue was not ordered to construe a written paper in existence, but to determine, as a fact, what were the terms of a lost-paper. .It is true that dower at common law was one-third for life of the lands of which the husband was seized during coverture; but our statute provides that a sum of money may be assessed in lieu of dower, and in that case it has been adopted as a rule of practice to give one-sixth of the fee simple value of the lands; for the reason that — assuming a life estate to be seven years, and the interest on money to be equivalent to the use of lands — the interest on one-third of the value of lands for seven years is found to be within a fraction of one-sixth of the value of the whole. Wright v. Jennings, 1 Bail., 277; Douglass v. McDill, 1 Speer, 140.

This being established as the money value of dower, it is not as a fact impossible that commissioners, when the widow desired it, should undertake to assign as dower, not one-third of the land for life, but one-sixth in fee simple. Such assignment would be out of the usual course, and irregular, but could hardly be said to violate any substantial rights; and if those who were parties to the proceeding in which it ivas made, stand by and allow it to be confirmed, giving to the widow the use of less land, in consideration of that being in fee, we do not see that they could after-wards object, and cut down the fee to an estate for life, simply for the reason that it was assigned as dower. Suppose we had the return before us, and it gave in express terms the land as .one-sixth in fee, would the parties who were before the court when that return was confirmed, be heard now to object to it? If not, the tenor of that return was an important fact in the case. See section 2285 of the G-eneral Statutes; McCaw v. Blewitt, Bail. Eq., 98.

; We do not see that Judge Wallace erred in' submitting the issue to the jury. It was the order of the judge who preceded him, and he could not disregard or reverse it. Nor did he commit error of law in omitting to go on and instruct the jury as to the powers of commissioners in dower and the established practice in assigning dower in this State. There were no requests to charge in the particulars indicated, and therefore the omission so to charge was not error of law appealable to this court.

But it was urged that the judge erred in finding that the land was assigned to Mrs. Asbill as one sixth absolutely and in fee, and not for life only. This was a question of fact, as to which there was concurrence between the jury, who tried the issue, and the Circuit Judge, who approved the finding. In such case, it is the settled practice of this court not to disturb the finding, unless it is without any evidence to sustain it, or is manifestly against the weight of the evidence. In this particular the case is like that of Pressley v. Kemp, 16 S. C., 343. That, also, was an equity case, in which there were findings of a jury on issues of fact approved by the Circuit Judge. The court say: “Under these circumstances, this court will generally accept as established the facts there found. Inquiry must end somewhere. A jury of the vicinage acquainted with the witnesses, &c., is peculiarly fitted to weigh conflicting testimony and decide contested questions of fact. Where the finding of such a body of twelve men is approved and adopted by the Circuit Judge, intelligent, disinterested, and accustomed to consider the force of testimony, it would seem that the verdict ought to be as near absolute truth as is attainable under imperfect human institutions,” &c.

We have looked carefully through the testimony, only the more closely because of the strange disappearance of the return, and the peculiar character claimed for it; and we cannot say that the finding was against the weight of evidence. On the contrary, we incline to agree with the Circuit Judge that it was in accordance with the weight of the testimony. There was some conflict, but both the surviving commissioners, Rutland and Pardue, ivho assisted in laying off the dower, concurred in their impressions, that one-sixth in value wras assigned in fee. It appeared with reasonable certainty that before the assignment, Mrs. Asbill expressed the wish to have what was given to her in such way that she “could do what she pleased with it;” and after the assignment, that continued to be her view; for as early as 1871 she got her brother-in-law, Gr. W. Asbill, fo draw the deed of 133 acres assigned to her, and afterwards to draw the other deed of 34 acres, which she acquired from Lewis Gr. Asbill, saying that “Michael and William, at the- death of th,eir father, were quite small and weakly, and have since been feeble, and had none of the advantages enjoyed by the-other children.”

From the view taken, we do not see that it was important to determine whether the whole 195 acres or only the 133 acres were assigned as dower, except as bearing upon the question of fact, whether one-third or one-sixth was assigned. But if it were important, we think there can be no doubt that the parties themselves considered that only the 133 acres were effectively assigned as dower; for when Mrs. Asbill made her first deed to her sons in 1871, she only .conveyed that number of acres; but after Lewis G. Asbill (who had purchased the land at the sale) made a deed to her of the 34 acres, she also conveyed that in 1874.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.