Cook v. First National Bank

Supreme Court of Georgia

Cook v. First National Bank

122 S.E. 686, 158 Ga. 175, 1924 Ga. LEXIS 100

CourtSupreme Court of Georgia

DecidedApril 22, 1924

DocketNo. 4074

StatusPublished

Cited by2 cases

This text of 122 S.E. 686 (Cook v. First National Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. First National Bank, 122 S.E. 686, 158 Ga. 175, 1924 Ga. LEXIS 100 (Ga. 1924).

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Opinion

Hines, J.

Dower is the right of a wife to an estate for life in one third of the lands, according to valuation, of which the husband was seized and possessed at the time of his death. Civil Code (1910), § 5247. Seizin of the husband is essential to entitle the wife to dower. A widow is not dowable of lands which her husband had by deed conveyed to another to secure an indebtedness, where the husband died before the debt so secured was paid. McDonald v. McDonald, 120 Ga. 403 (47 S. E. 918); Harris v. Powers, 129 Ga. 74 (58 S. E. 1038, 12 Ann. Cas. 475); McPhaul v. McPhaul, 150 Ga. 486 (104 S. E. 241). Partial payment of the secured debt does not entitle the wife to dower. McPhaul v. McPhaul, supra. The status at the time of the death of the husband fixes the right of the widow to dower. Connelly v. Swann, 141 Ga. 112 (80 S. E. 553). So where the administratrix of the deceased husband, who is his widow, with funds of the estate, pays up the indebtedness so secured by his deed, this fact does not entitle the widow to dower in the lands so redeemed. This would be talcing funds belonging to creditors, or other heirs, to perfect the right of dower. This case does not fall within the provisions of the statute embraced in the Civil Code (1910), § 5248, relating to the assignment of dower in lands partly paid for. McPhaul v. McPhaul, supra. The court adheres to the ruling made in the last-cited case.

Judgment affirmed.

All the Justices concur, except Russell, C. J., and Atkinson, J., dissenting.

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Hines, J.

Dower is the right of a wife to an estate for life in one third of the lands, according to valuation, of which the husband was seized and possessed at the time of his death. Civil Code (1910), § 5247. Seizin of the husband is essential to entitle the wife to dower. A widow is not dowable of lands which her husband had by deed conveyed to another to secure an indebtedness, where the husband died before the debt so secured was paid. McDonald v. McDonald, 120 Ga. 403 (47 S. E. 918); Harris v. Powers, 129 Ga. 74 (58 S. E. 1038, 12 Ann. Cas. 475); McPhaul v. McPhaul, 150 Ga. 486 (104 S. E. 241). Partial payment of the secured debt does not entitle the wife to dower. McPhaul v. McPhaul, supra. The status at the time of the death of the husband fixes the right of the widow to dower. Connelly v. Swann, 141 Ga. 112 (80 S. E. 553). So where the administratrix of the deceased husband, who is his widow, with funds of the estate, pays up the indebtedness so secured by his deed, this fact does not entitle the widow to dower in the lands so redeemed. This would be talcing funds belonging to creditors, or other heirs, to perfect the right of dower. This case does not fall within the provisions of the statute embraced in the Civil Code (1910), § 5248, relating to the assignment of dower in lands partly paid for. McPhaul v. McPhaul, supra. The court adheres to the ruling made in the last-cited case.

Judgment affirmed.

All the Justices concur, except Russell, C. J., and Atkinson, J., dissenting.

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Bluebook (online)

122 S.E. 686, 158 Ga. 175, 1924 Ga. LEXIS 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-first-national-bank-ga-1924.

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