Christopher v. Christopher

21 S.W. 890, 92 Tenn. 408

• Court: Tennessee Supreme Court
• Decided: March 16, 1893
• Status: Published

Opinions

Lea, J.

Martin A. Christopher died 'in 1891,. leaving the petitioner, Susan E. Christopher, his •widow, and an only son, the defendant, by ' a. former marriage, his heir. • Deceased owned at the time of his death a tract of land upon which he resided, containing about 157 acres. The widow made application to the County Court for homestead and dower to be allotted and assigned her out of said land. Commissioners were appointed at ■the August term of the Court, but they afterwards declined to act, and at the September term of the Court they were excused and discharged, the widow and son consenting .thereto, and the record then recites, “ and the parties in interest, viz., Mrs. Susan E. Christopher and W. H. Christopher, assenting thereto, the Court is pleased to appoint as Commissioners, to lay off, allot, and set apart homestead and dower to said widow, the following-named freeholders, viz., Id. T. Snell, ~W. H. Crocket, Carter Burk, Lucien Elliot, and W. I). Shelton, any three of whom, together with Matt Murry, County Surveyor, will be authorized and empowered to act in the premises.” The County Surveyor, together with four of the Commissioners, met and acted, and made their report to the next term of the Court, setting apart as homestead “ fifteen acres, including the mansion and all the outhouses,” giving the metes and boundaries of said fifteen acres, and then set apart one-third of the balance of the tract as dower, giving the boundaries thereof. To the report the petitioner filed a number of exceptions, which were overruled by the Court, after proof had been taken, and the report confirmed. Appeal prayed and granted, and assignment of errors practically embodying the exceptions .to the report, the more material of which we will notice.

First. — It is objected that the record only shows that the Commissioners were freeholders, and failed to show that they were in nowise related to the parties in interest. It is a sufficient answer to this objection, to state that the Commissioners were ap-. pointed by consent of the parties interested.

Second. — It was objected that the Commissioners were not properly sworn. The report recites “ after being qualified, and a thorough examination and a careful survey, we have,” etc. This is a sufficient statement that they were sworn, and, besides, the proof shows that they were sworn by the surveyor, who, under § 3268, M. & Y. Code, has the right, and it is made his duty, to swear them.

Third. — It is objected that the report does not ■state • the value of the homestead set apart, and that the same is not worth one thousand dollars. It would have been more regular to have recited in the report the value of the homestead, but this is not fatal; and, besides, the proof, by a decided preponderance, shows both by the Commissioners ■and other disinterested witnesses, that the homestead set apart was worth one thousand dollars.

Fourth. — The' exception most relied on, and earnestly argued, was that the widow had the power to elect where the homestead should be located, and she desired that the mansion house and other improvements be included in the dower, so that the value of the improvements should not be estimated, and that she be permitted to select a homestead outside of the improvements. The Commissioners, in first laying off the homestead, followed the statute, M. & Y. Code, §§ 2944 and 3250, which provides, “where a widow is entitled to both homestead and dower out of • the same lands, the Commissioners shall set apart the homestead first, and then one-third of the remainder of such lands as dower.” In this case, the widow had no right of election, for her husband, the owner of the land, had made a selection by having his residence and home thereon many years prior to and at the time of his death, and she, as widow, was bound by his election. "We hold, therefore, that the action of the Commissioners in first setting aside the homestead, including the .mansion and adjacent outhouses, to the value of one thousand dollars, and then assigning ■ one-third of the-.balance of the land as dower, was correct, and the decree of the Court confirming the report is-affirmed, and petitioner will pay the cost.