Rountree v. Gaulden

Cobb, P. J. (After stating the facts.) 1. Upon the death of the husband the wife is entitled to dower. She is permitted to take, however, in lieu of dower a child’s share [740] in the estate. If she elects to take her dower, she has no further interest in the realty. If she elects to take a child’s share, she is entitled to the share which a child would take, unless the shares exceed five in number, in which -event she is entitled to a one-fifth part of the estate. Civil Code, §3355. Her election to take a child’s part of the real estate in lieu of dower must be exercised within twelve months from the -grant of letters testamentary or of administration on the husband’s estate. Civil Code, §4689; LaGrange Mills v. Kener, 121 Ga. 429. There is no presumption of law that a widow will elect, or has elected, to take a child’s part in the estate of her husband. Jossey v. Brown, 119 Ga. 758. It must affirmatively appear that she elected to take a child’s part within the time prescribed by law. This may appear by an election in writing, duly signed, filed, and recorded in the office of the ordinary, but this is not the only method of proving the fact of such election^ The fact of election may be shown by circumstances 'establishing the same, as well as by direct evidence. If the circumstances are such as to establish that an election has been made in time, it is as much affirmatively established as if there were direct evidence to that effect. The conduct of the widow in reference to the property of the estate of her husband may be looked to in determining whether an election has taken place. In Sewell v. Smith, 54 Ga. 567, it was held that where the widow remained in possession of land in which she was entitled to take either a dower or a child’s part until long after her right to dower was barred, without making any formal election, there would be a presumption that she had elected to take a child’s part, and this is especially true where such a course was most beneficial to her interests. In Sloan v. Whitaker, 58 Ga. 319, it was held that where a widow, whose apparent interest was to take.a child’s part in lieu of dower, was assigned a child’s share of her husband’s realty as well as personalty, which was accepted and appropriated, there would be a presumption after her death, until the contrary appeared, that she had elected to take a child’s share in lieu of dower; and this was true though no steps for making the division were taken until after the time for making an election had expired. If the widow deals with an interest in the estate as her own, which she would not be entitled to except upon the theory that she had elected to take a child’s share, the fact that she so741 -dealt with it is a circumstance to be considered in determining whether she had so elected. We think that the marriage settle-anent, in which Mrs. Jones dealt with the property in question as if it were her own and which could not be hers unless she had elected to take a child’s share in the estate, was admissible on the question as to whether an election to take a child’s share had been made by her. It is true that it does not appear that this marriage settlement was executed within twelve months from the date of the administration upon the former husband’s estate, and that it does not appear that the other acts by the widow, tending to show an election, took place within twelve months; but the fact that she so dealt with it, even if it was after the expiration of such time, indicated that an election had taken place; and the evidence, taken as a whole, both that admitted and that rejected which could be properly admitted, was of such a character as to at least establish prima facie that an election had taken place. It was sufficient to cast the burden upon the claimant to disprove an election. But, it is said, she dealt with a one-sixth interest in the estate as her own, when, under the law, she was entitled to a one-fifth interest. That she made a mistake of law as to her interest does not alter the situation. She was entitled to no interest in^ the estate except dower or a child’s share in fee. She made a mistake as to the quantum of her share in fee, but she was evidently dealing with the property as if she were the owner, and there is nothing in her conduct to indicate that there was any other intention on her part. If she was entitled to a one-fifth interest, and claimed, under a mistake of law, only a one-sixth, she would not lose that which she claimed simply because by the mistake she received less than the law allowed. 2. The admissions of the defendant in execution in a claim case, made after the pendency of the litigation, are not admissible in evidence, but admissions made before the pendency of the litigation are admissible. Civil Code, §5189; Horn v. Ross, 20 Ga. 210, and Van Epps’ notes; Smith v. Cox, 20 Ga. 240. The declaration of a defendant in execution, made at a time when it was against his interest to make it, has been held to be admissible in favor of the plaintiff in execution. Foster v. Rutherford, 20 Ga. 676. When a defendant in execution is in possession of the land at the time of the levy, any declaration made by him up to the time of [742] the levy, and while in possession, is admissible in evidence in a. claim case. Rutledge v. Hudson, 80 Ga. 267; Smiley v. Padgett, 123 Ga. 39. Any declaration made by Mrs. Jones while she was in possession of the property, which was prejudicial to her interest, would be admissible in evidence against those claiming under her. Glanton v. Griggs, 5 Ga. 434. Declarations by Mrs. Jones against her, interest, made while she was in possession of the property and prior to the conveyance which passed whatever interest she had therein to her son, would be admissible against a claimant who derived title from her grantee. The declarations made by her, whether against her interest or in her own favor at the time when she was not the owner or in possession of the property, and subsequently to the pendency of the present litigation, would not be admissible. Civil Code, §-5180. It is said, though, that even if it was erroneous to refuse to admit in evidence the marriage settlement, 'the judgment .should not be reversed, for if the marriage settlement had been admitted it would have shown that Mrs. Jones had no leviable estate in the property, for the reason that the marriage settlement created an executory trust. We will not now pass upon the question as to the character of the estate that Mrs. Jones has in the property, for the reason that this question was not passed upon by the trial 'judge. The marriage settlement was offered in- evidence for the purpose of showing that Mrs. Jones had dealt with what she thought was a child’s share in her husband’s estate, and its admissibility for this purpose was the only question passed upon by the trial judge. Whether Mrs. Jones, since the death of her second husband, has an interest in the property which is subject to levy and sale, or whether the marriage settlement created merely an executory trust giving her an interest only in the rents, issues, and profits, we will not now undertake to determine; leaving these questions to be decided on another trial. The evidence was admissible for the purpose for which it was offered, that is, as a circumstance showing an election by the widow to take a child’s share; and whether when admitted it will have the effect to entirely defeat the plaintiff in execution, we will leave for determination after the evidence is before the court, and. the question of the construction of the instrument has been passed upon by the trial judge. Judgment reversed. All the Justices concur.