Sloan v. Whitaker

Bleckley, Judge. Where tbe intestate died in 1856, leaving only a widow and a minor child, and administration was granted on bis estate in tbe same year; and where, in 1858, bis estate, real and personal, was divided, in kind, equally between tbe widow and child, by commissioners appointed by tbe ordinary on tbe application of tbe administrator, both tbe widow and tbe guardian of tbe child consenting to tbe order of appointment, tbe widow, after her death, is to be presumed to have made her election in due time to take a child’s part in lieu of dower, nothing to tbe contrary appearing in tbe evidence, and she having accepted and appropriated tbe land assigned to her in tbe division. Not only may it be supposed that tbe widow elected in her own mind against dower, but that she communicated that election in proper time to tbe ordinary and tbe administrator. How else can their conduct be accounted for? Tbe ordinary, acting officially, appointed commissioners to divide tbe whole estate. Tbe administrator petitioned tbe ordinary to make tbe appointment. If tbe widow bad not renounced dower, and if they bad not known she bad done so, tbe ordinary should not have granted, nor should the administrator have moved for, an order to divide tbe realty. Tbe division which they both contemplated must have been tbe very one which tbe commissioners proceeded to make, namely, an equal division, and not tbe laying off of dower. Tbe superior court, not tbe ordinary, bad jurisdiction of 322 dower. On the other hand, the ordinary alone had power to raise a commission to divide equally, and distribute the estate in kind. The law of division, and not the law of dower, was administered. . Besides, as there were (including herself) but two to take as heirs or distributees, it is probable that it was greatly to the widow’s interest to elect against dower; thus taking a half of the realty in fee simple, in place of one third of the same realty for life only. This consideration tends to strengthen the presumption that she made her election while she had a right to make it — 54 Ga., 567; compare 9 Ib., 189 ; 21 lb., 161. Judgment affirmed.