Lancaster v. Lancaster's Trustees

JUDGE COFER delivered the opinion of the court. February 17, 1877, S. S. Lancaster made an assignment for the benefit of creditors, by .which he conveyed to the appellees, as trustees, a tract of land supposed to contain 165 acres, but which, on being surveyed, proved to be only 147^ acres. His wife united in the conveyancce, but the homestead exemption and her potential right of dower were expressly reserved out of its operation. By a subsequent writing, duly executed, Lancaster and his wife, for the consideration of one thousand dollars paid by the trustees, waived the homestead. To a suit by the trustees to sell the land and settle the trust, Mrs. Lancaster was made a defendant. She answered, asserting her potential right to dower, — 199 — but offered to release it upon being paid in money its value,, to be ascertained upon the value of the land at the date of the deed of assignment. A judgment was taken to sell the land, freed from any future claim to dower by her. The land was sold for the sum of $4,420,o and the court below estimated the value of her potential right of dower at 4.12 per cent, of the sum for which the land sold. From that judgment she appeals, and the trustees cross-appeal. Mrs. Lancaster contends that she is entitled to have the estimate made upon proof of the ages and the state of health of herself and her husband, and of the value of the land at the date of the deed of assignment, and the opinions of witnesses as to what her right is worth, while the appellees contend that the court should have deducted from the price for which the land sold the one thousand dollars paid for the homestead, and have allowed her 4.12 per cent, of the residue only. The evidence shows that Mrs. Lancaster and her husband are each about sixty-six years of age, and in ordinary health; that at the date of the deed the land was worth $41.25 per acre, amounting to $6,077.53. . Averaging the opinions of the witnesses, they fix the value of her right at about $700, or a little more than eleven per cent. This is obviously too much. According to the tables adopted by this court in O’Donnell v. O’Donnell (3 Bush,, 216) and Alexander v. Bradley (lb., 668), the light of dower of a widow sixty-six years of age is only worth 43.90 per cent, of one third of the value of the land, so that if Mrs.. Lancaster’s husband had been dead, the value of her dower in the land, estimating it at $6,077.53, would have been less, than $900. And Chancellor Bland, who seems to have given — 200 — the subject of the value of dower much thought, estimates the dower of a healthy widow, above sixty-five and not exceeding seventy, at one sixteenth of the net value of the •estate of which she is dowable. (1 Bland’s Chy., 269-70.) And Chancellor Hanson estimated its value at one twelfth. (3 Bland’s Chy., 270-1.) One sixteenth would give about $380, and one twelfth about $506 as the value of Mrs. Lancaster’s dower in $6,0 77. These estimates are too low according to the tables already referred to as adopted by this court, and which must now be regarded as the established basis in this state for estimating the value of dower, and we only refer to them to show that the opinions of the witnesses in this case are not to be relied upon as a basis upon which to estimate the value of a mere potential right of dower, which is obviously much less than the value of an existing right of dower in a woman of the same age. The annexed table, prepared by Professor Bowditch, a mathematician of recognized learning and ability, and published in an appendix to Scribner on Dower, has, we are informed, been adopted by the courts in some of the states as a rule for áscertaining the value of a potential right of ■dower. It has long been published in connection with the tables already adopted by this court, and seems to have sufficient sanction to warrant its adoption as a rule in cases like this, and we accordingly adopt it as furnishing a much safer as well as a more accurate and convenient rule than the mere opinions of witnesses. That table fixes the value of the potential right of dower of a woman sixty-six years of age, — 201 — ■ and whose husband is of the same age, at 4.12 per cent, of the value of the estate. But we are of the opinion that the court erred in not allowing Mrs. Lancaster the value of her potential right of dower in the value of the land at the date of the assignment. That right was hers, and she could not be compelled to part with it. She offered to surrender it upon condition she should be paid for it according to the value of the land at the date of the deed of assignment. The trustees, in taking a judgment and selling the land freed from her claims, must be held to have accepted her offer, and they have no more right now to refuse to pay her according to the terms on which she offered to part with her right than they would have had if they had expressly agreed to accept her offer. Nor have they a right to have the value of the homestead ■deducted from the value of the land and excluded from the . sum in which she is entitled to a potential right of dower. Her offer was to take the value of her potential right, to be estimated on the value of the land, and it was accepted as made; and besides, her claim was to the value of her prospective dower, and she .had nothing to do with the home- . stead, which belonged to her husband. Judgment reversed, and cause remanded, with directions to render judgment in conformity to this opinion. On the cross-appeal, the judgment is affirmed. — 202 — — 203 —