Fuller v. Conrad's Adm'r

Harrison, J., delivered the opinion of the court. The lower court is justly entitled to large discretion in the matter of assigning dower, and the report of its commissioners appointed for the purpose, and the action of the court in confirming their report, is accorded much consideration by this court. Its judgment, however, in the premises is not conclusive, but subject to review like other judgments. The object of dow er is to afford the widow a sure and competent support, and it should be so assigned that she may enjoy one-third of the income arising from the estate, the probable rents and profits being the chief subject of consideration. In an early Massachusetts case, Parsons, O. J., laid down this rule: “In the assignment of dower, commissioners are to regard the rents and profits only of the several parcels of the estate, out ol which the dower is to be assigned. When they have ascertained the annual income of the whole estate, they ought to set off to the widow such a part as will yield her one-third part of such income, in parcels best calculated for the convenience of herself and of the heirs. This rule is adopted equally to protect widows from having an unproduc [235] tive part of estates assigned to them, and to guard heirs from being left, during the life of the widow, without the means’of support.” Leonard v. Leonard, 4 Mass 533. This equitable rule has not been impaired by age, but is as applicable to the case under consideration as to that in which it was announced nearly a century ago. These principles have not been observed in this case. The court in its decree, and the cone missioners in their report, seem to have regarded the fee simple value alone in determining the widows rights. The estate in which the appellant is entitled to dower is valued at $69,750, and consists almost entirely of highly improved city property. Of this $23,250, in fee simple value is assigned to the widow, in which assignment is included the only property without power to produce income belonging to the estate, valued at $6,250, thus imposing upon the widow a burden in taxes without the benefit of any income from more than one-fourth of the property assigned her, while all of the $46,500 worth of property reserved to the heirs has income producing capacity. The record clearly shows that under the division made the appellant falls short of getting her just proportion of the estate in rental value, and therefore the decree complained of must be reversed, the commissioners’ report set aside, and the cause remanded for further proceedings to be had therein in accordance with the views expressed in this opinion. Reversed.