Riley v. Clamorgan & Rippey

Gamble, J., delivered the opinion of the court. In addition to the statement made by counsel it is necessary the case should show the fact, that no evidence was given as to any increase or diminution in the value of the property in which dower is claimed or in its yearly Value, since the alienation by the plaintiff’s husband. The only question, then, presented is, what rule is to be adopted in computing “the yearly value of the widow’s dower in the premises,” when they are not susceptible of division, and when she is to take an annual sum in lieu of dower, under the 28 and 29 sections of the act concerning dower: Rev. Code 435. It is contended, on behalf of the widow, that the proper rule is, to take the value of the whole premises in money, and allow her, annually, for life, a sum equal to the interest on one-third ot that value. In support of this position, reference is made to the opinion of Chancellor Kent, in the case of Hale vs. James, 6 John. Ch. R. 258, and to the decision, Beavis & Jamison vs. Smith, 11 Ala. Rep. 31. We do not feel authorized to adopt any such rule of computation in this state. When the statute gives to the widows a sum of money, which is to be assessed as the yearly value of her dower, it authorizes no such assumption as that the yearly value will be equal to legal interest,on the value of the fee simple. The. investment of money in real estate, is here regarded as a judicious investment, because, in general, the appreciation of the property will exceed any ordinary rate of interest, and such investments are made in unimproved property, with no expectation that in addition to the appreciation of the property it will produce anrannual income, equal to legal interest upon its value. [335] The yearly value of real estate is its net annual product, without the expenditure of money or labor upon it, after the deductions have been made from its gross income, of all the charges to which it is subject, such as taxes, repairs &c. The design of our law is to give to a widow the use for life of one third of her husband’s real estate, to be set off to her by metes and bounds, if practicable, without injury to the interests of those concerned. If from any cause she cannot have this third of the property, she takes, in lieu of it, an equivalent in money, which the law calls “yearly value of her dower.” In such case, the owner of the fee continues in the enjoyment and use of the whole property, including her third. The question then is, how much is the yearly value of that third to him when the property is used, so as to make it productive. This will depend upon the locality of the property, its fitness for different uses, and all circumstances by which its productiveness may be increased or diminished. On the one hand no fanciful idea is to be indulged of modes in which, by extraordinary management, it might be made to produce a large income; nor, on the other, is the idea to be allowed a controlling influence, that the owner may not chose to make it productive. It is a practical question, to be determined in relation to property held by one person, for the use of which he is to pay an annual sum for the whole life of another. It is a question that applies to the particular property in which the dower is claimed. The uncertainty of the widow’s life is not to be considered as a cause for reducing the amount; for that uncertainty attaches to the continuance of the annuity which is to be paid in lieu of dower. The sum to be annually paid, is the same, whether the widow be old or young, and whether the condition of her health gives promise of long life or not. The first five instructions asked by the plaintiff were therefore rightly refused, as they are all based upon the idea that her annual allowance is to be computed by the rate of interest upon a capital of money. The sixth instruction, in which dower was claimed upon the value of the property as increased by other causes than the improvements made by the alienees of the husband was rightly refused, because there was no evidence given, as to any increase or diminution in the value of the property. We now turn to the three instructions given by the court at the request of the defendants, and they show this remarkable fact, that three instructions, each of which covers the whole matter in dispute, and each differs in some measure from the others, in the basis upon which the computation of the widow’s allowance should be made, are all at [336] the same time given to the jury. It is not the question, in such case whether some one of the instructions may not be right, but is, whether either of them is wrong; for if either of them be wrong, it is impossible to ascertain that the calculation by the jury was not based upon it. The evidence given on the part of the plaintiff was directed entirely to the value of the fee simple, as the claim was for interest upon one third of such value. The evidence on the part of the defendant was confined to the question, how much rent the property would produce upon leases of different duration, from one to thirty years. The first of the three instructions given, limited the plaintiff’s right to one third of what the property “would rent for leaving out all improvements, and deducting the reasonable and probable amount of taxes on the ground, free from improvements.” The second, allowed the plaintiff one third of the net annual value of the property, deducting taxes and not taking improvements into the account. The third allowed her one third of the value of the use of the land, apart from improvements and deducting taxes. Considering the state of the evidence before the jury, the first instruction was calculated to mislead them. They had before them estimates of the probable rent that the property would produce, when leased for different periods, and these estimates differed from ten cents to one dollar and fifty cents per front foot, according to the length of the lease, If they were at liberty to take either of the amounts, according to their own judgment, then the instructions applied no rule of law for their guidance, and the objection to the instructions is, that it left the whole question to the discretion of the jury, to take any one of the different amounts as the basis upon which they were to calculate the sum to be paid to the widow. It is also objectionable, in leaving the deduction to be made on account of taxes, to probabilities, instead of being governed by the facts proved. Either the second or the third instruction would by itself have been a proper direction to the jury, and there is no objection they were both given. The judgment is reversed on account of the giving the first instruction and the case is remanded for further proceedings according to this opinion.