Sherard v. Sherard's Adm'r

RICE, C. J.— We understand it to be conceded by tbe parties, that the dower interest of tbe widow in tbe land of ber deceased husband, by ber consent, and under section 1873 of tbe Code, was sold with tbe residue of tbe land, by order of tbe judge of probate; that tbe sale was confirmed; that tbe purchase-money was collected by tbe administrator of tbe deceased husband; and that after-wards, and before tbe final settlement of tbe estate had been made, tbe wddow applied to tbe judge of probate, to make an order that a fair equivalent for ber dower interest be paid to her by tbe administrator. In such a case, it was the duty of tbe judge of probate, under section 1874 of tbe Code, to make such order; but in making tbe order, be'was bound to pay due respect to tbe rule declared in that section, that “ tbe value of tbe dower interest (is) to be ascertained by proof, having regard to tbe age and health of tbe dowress;” and to tbe rule declared in section 1875 of tbe Code, that “tbe provisions of tbe preceding section must not be so construed as to allow tbe widow, in any case, more than one-sixth of tbe purchase-money.” In determining one-ninth of tbe purchase-money and interest to be a fair equivalent for tbe dower interest of tbe widow iu tbe present case, upon tbe proof set forth in the record, it does not appear that tbe judge of probate proceeded upon any wrong principle, or violated any rule of law; nor does it appear that tbe allowance is inadequate. Section 1875 of tbe Code establishes one-sixth of tbe purchase-money, as tbe maximum that can be allowed “in any case;” and as more than that could not be allowed to a widow of extreme youth and perfect health, we know of no rule of law which would require a court to decide, that one-ninth of tbe purchase-money, with interest, was too small an allowance for tbe dower interest of a widow thirty-seven years old, however healthy she might be.—See Wright v. Jennings, 1 Bailey, 277; McCreary v. Cloud, 2 Bailey, 343; Beavers v. Smith, 11 Ala. 20; Springle v. Shields, 17 Ala. 295. We deem it proper to say, that we do not assent to tbe proposition, that this court has no power to revise tbe de [490] cisions of the judge of probate in this class of cases.—See Wright v. Jennings, and McCreary v. Cloud, supra; Pulliam v. Owen, 25 Ala. 492 ; Shepard v. Parker, 13 Ledell, 103. But in the present case, no error is shown to have been committed, and therefore we affirm the decree of the court below.