Cobb, J.
1. The right of a widow to dower is derived from the common law, but the rule of the common law in reference to the property in which this right may be asserted has undergone material modifications by statute in this State. The widow is no longer entitled to dower in all the lands which the husband held during coverture, but only in lands of which he died seized and possessed and such as came to him by virtue of his marital rights and which may have been aliened by him. During the lifetime of the husband the widow has an inchoate right of dower in lands of the latter character, but she has no right in his lifetime, inchoate or otherwise, in other lands owned by him. Upon the death of the husband, the inchoate right of dower in lands which came to him .through her becomes consummate, and the right to dower in other lands of which he died seized and possessed becomes completely vested. The widow has a right to compel an assignment of dower, in the manner authorized by law, in lands of either character, unless her right to dower has become barred for some reason which the law recognizes as sufficient to accomplish that result. It seems that at common law lapse of time alone would not be sufficient to bar the widow’s right of dower,- but there are cases in which it has been held that the failure for a long period of time to apply for dower, and the existence of facts which would make it inequitable on the part of the widow to assert this right would be a sufficient reason for a court of equity to refuse to take jurisdiction for the purpose of assigning dower. In Tooke v. Hardeman, 7 Ga. 29, it was held that while an application for dower might be a suit, it was not a suit to recover possession of land, within the meaning of the' act of 1767, which required all such suits to be brought within seven years. See also Wakeman v. Roache, Dud. 123. In 1839 an act was passed which declared that an application for dower must be made' within seven years after the death of the husband, or that otherwise the right to dower shall be absolutely barred. Acts 1839, p. 145, Cobb’s Dig. 230. See also Doyal v. Doyal, 31 Ga. 193; Smith v. King, 50 Ga. 192. There was nothing in this act making an exception in case of a widow who was insane or laboring under any other disability. In 1856 the General [432]*432Assembly passed a general law on the subject of the time in which suits should be brought and indictments preferred. Acts 1855-6, p. 233. It was the evident intention of Judge Cone, who was the framer of this act, to bring together in one act all of the existing rules on the subject of limitation of actions, and to provide rules where there were none on the subject and make them all a part of one complete and comprehensive scheme. Section 13 of this act provides, “That when any widow shall be entitled to dower, application for the assignment of such dower shall be made by said widow within seven years from the time such right to dower accrued, and not after.” Section 19 provides,, “ That when any of the persons entitled to sue, as aforesaid shall be married women, idiots, or lunatics, or imprisoned, or under the age of twenty-one years, at the time the cause of action accrues,, such persons shall be entitled to sue within the time aforesaid, after their respective disabilities are removed.” There can be no question that under this act the right to apply for dower, which became .vested in a widow who was insane at the date of the death of her husbaud, would not become barred until the lapse of seven years from the time she was restored to sanity. If no' change has been made in the law, either by subsequent acts or by the adoption of the different codes, this is still the law. Our ■attention has not been called to any statute dealing with this subject since the act of 1856 was passed. That act does not appear in the code in its entirety in any one place. Some of the different provisions appear in the chapter on title by prescription. See §§ 3593, 3595. Other provisions, and the larger number, appear in the article on limitation of actions on contracts. See §§3760 et seq. Section 19 of the act of 1856 appears in this article. Other provisions appear in sections 3898 — 3900. That section of the act which relates to the time in which dower shall be applied for is found in paragraph 4 of section 4689, which by a marginal note of the codifiers is shown to have been derived from the acts of 1839 and 1856. The mere fact that the provision of the act of 1856 in reference to the time in which an application for dower shall be made has become severed from the remaining portions of the act, and placed in a different article in the code, and one which is more appropriate for its appearance, that is, the article relating to dower, would not be sufficient [433]*433reason, in our opinion, to authorize the inference that the General Assembly intended, by the adoption of the code, to repeal the exception in favor of persons under disability which was given to such persons under the act of 1856.
2. It is contended that upon the death of the husband the widow is entitled to elect whether she shall take a child’s part of the estate as heir, or take her dower; and that as this is a right personal to the widow, no person can make this election for her; and that therefore until she is in a position to make this election for herself, there can be no application for dower. See, in this connection, 1 Scribner on Dower (2d ed.), 461; Ashby v. Palmer, 1 Mer. Ch. 296 ; Worthy v. Worthy, 36 Ga. 45. But the right to dower does not depend upon an election. The right to a child’s share in lieu of dower does depend upon an election, and an election which must be exercised by the widow within one year from the date of administration on her husband’s estate. Civil Code, §4689 (3); Beavors v. Winn, 9 Ga. 189, and Van Epps’ Annotations ; Farmers Banking Co. v. Key, 112 Ga. 301. The right to dower is a vested right, accruing upon the. death of the husband, and it takes no act on the part of the widow to complete this right. See Truett v. Funderburk, 93 Ga. 686; Snipes v. Parker, 98 Ga. 524; Johnson v. Gordon, 102 Ga. 354; Starr v. Newman, 107 Ga. 395. The right to dower continues vested in the widow until she has done some act which the law would construe as sufficient to divest her of the same. Her right to claim a child’s part in the estate is dependent upon her action, and her right to dower is not destroyed until she has made her election to take a child’s part, unless barred for some other reason. The law fixing one year from the date of the granting of administration upon the husband’s estate as the time within which an election must be made, in order to entitle the widow to take a child’s part, makes no exception, in favor of widows who are under disability, and there are many reasons why no such exception should be made. The disability may be of a character which may not for a long time be relieved; and hence heirs and others interested in the estate would be confused as to their rights as long as the widow survived. After the lapse of one year from the date of the granting of administration, the right to elect to take a child’s part is gone, and the right to apply for dower remains complete. Hence, in a [434]
Free access — add to your briefcase to read the full text and ask questions with AI
Cobb, J.
1. The right of a widow to dower is derived from the common law, but the rule of the common law in reference to the property in which this right may be asserted has undergone material modifications by statute in this State. The widow is no longer entitled to dower in all the lands which the husband held during coverture, but only in lands of which he died seized and possessed and such as came to him by virtue of his marital rights and which may have been aliened by him. During the lifetime of the husband the widow has an inchoate right of dower in lands of the latter character, but she has no right in his lifetime, inchoate or otherwise, in other lands owned by him. Upon the death of the husband, the inchoate right of dower in lands which came to him .through her becomes consummate, and the right to dower in other lands of which he died seized and possessed becomes completely vested. The widow has a right to compel an assignment of dower, in the manner authorized by law, in lands of either character, unless her right to dower has become barred for some reason which the law recognizes as sufficient to accomplish that result. It seems that at common law lapse of time alone would not be sufficient to bar the widow’s right of dower,- but there are cases in which it has been held that the failure for a long period of time to apply for dower, and the existence of facts which would make it inequitable on the part of the widow to assert this right would be a sufficient reason for a court of equity to refuse to take jurisdiction for the purpose of assigning dower. In Tooke v. Hardeman, 7 Ga. 29, it was held that while an application for dower might be a suit, it was not a suit to recover possession of land, within the meaning of the' act of 1767, which required all such suits to be brought within seven years. See also Wakeman v. Roache, Dud. 123. In 1839 an act was passed which declared that an application for dower must be made' within seven years after the death of the husband, or that otherwise the right to dower shall be absolutely barred. Acts 1839, p. 145, Cobb’s Dig. 230. See also Doyal v. Doyal, 31 Ga. 193; Smith v. King, 50 Ga. 192. There was nothing in this act making an exception in case of a widow who was insane or laboring under any other disability. In 1856 the General [432]*432Assembly passed a general law on the subject of the time in which suits should be brought and indictments preferred. Acts 1855-6, p. 233. It was the evident intention of Judge Cone, who was the framer of this act, to bring together in one act all of the existing rules on the subject of limitation of actions, and to provide rules where there were none on the subject and make them all a part of one complete and comprehensive scheme. Section 13 of this act provides, “That when any widow shall be entitled to dower, application for the assignment of such dower shall be made by said widow within seven years from the time such right to dower accrued, and not after.” Section 19 provides,, “ That when any of the persons entitled to sue, as aforesaid shall be married women, idiots, or lunatics, or imprisoned, or under the age of twenty-one years, at the time the cause of action accrues,, such persons shall be entitled to sue within the time aforesaid, after their respective disabilities are removed.” There can be no question that under this act the right to apply for dower, which became .vested in a widow who was insane at the date of the death of her husbaud, would not become barred until the lapse of seven years from the time she was restored to sanity. If no' change has been made in the law, either by subsequent acts or by the adoption of the different codes, this is still the law. Our ■attention has not been called to any statute dealing with this subject since the act of 1856 was passed. That act does not appear in the code in its entirety in any one place. Some of the different provisions appear in the chapter on title by prescription. See §§ 3593, 3595. Other provisions, and the larger number, appear in the article on limitation of actions on contracts. See §§3760 et seq. Section 19 of the act of 1856 appears in this article. Other provisions appear in sections 3898 — 3900. That section of the act which relates to the time in which dower shall be applied for is found in paragraph 4 of section 4689, which by a marginal note of the codifiers is shown to have been derived from the acts of 1839 and 1856. The mere fact that the provision of the act of 1856 in reference to the time in which an application for dower shall be made has become severed from the remaining portions of the act, and placed in a different article in the code, and one which is more appropriate for its appearance, that is, the article relating to dower, would not be sufficient [433]*433reason, in our opinion, to authorize the inference that the General Assembly intended, by the adoption of the code, to repeal the exception in favor of persons under disability which was given to such persons under the act of 1856.
2. It is contended that upon the death of the husband the widow is entitled to elect whether she shall take a child’s part of the estate as heir, or take her dower; and that as this is a right personal to the widow, no person can make this election for her; and that therefore until she is in a position to make this election for herself, there can be no application for dower. See, in this connection, 1 Scribner on Dower (2d ed.), 461; Ashby v. Palmer, 1 Mer. Ch. 296 ; Worthy v. Worthy, 36 Ga. 45. But the right to dower does not depend upon an election. The right to a child’s share in lieu of dower does depend upon an election, and an election which must be exercised by the widow within one year from the date of administration on her husband’s estate. Civil Code, §4689 (3); Beavors v. Winn, 9 Ga. 189, and Van Epps’ Annotations ; Farmers Banking Co. v. Key, 112 Ga. 301. The right to dower is a vested right, accruing upon the. death of the husband, and it takes no act on the part of the widow to complete this right. See Truett v. Funderburk, 93 Ga. 686; Snipes v. Parker, 98 Ga. 524; Johnson v. Gordon, 102 Ga. 354; Starr v. Newman, 107 Ga. 395. The right to dower continues vested in the widow until she has done some act which the law would construe as sufficient to divest her of the same. Her right to claim a child’s part in the estate is dependent upon her action, and her right to dower is not destroyed until she has made her election to take a child’s part, unless barred for some other reason. The law fixing one year from the date of the granting of administration upon the husband’s estate as the time within which an election must be made, in order to entitle the widow to take a child’s part, makes no exception, in favor of widows who are under disability, and there are many reasons why no such exception should be made. The disability may be of a character which may not for a long time be relieved; and hence heirs and others interested in the estate would be confused as to their rights as long as the widow survived. After the lapse of one year from the date of the granting of administration, the right to elect to take a child’s part is gone, and the right to apply for dower remains complete. Hence, in a [434]*434case like the present, where the widow has been insane since the death of her husband, and more than a year has elapsed since the date of administration on the husband’s estate, the right to elect to take a child’s part is gone, and the right to apply for dower is not barred.
3. There is no distinct averment in the petition that the widow had been adjudged insane, but this may be inferred from the allegation that she has been confined for years in the State Sanitarium. There is no allegation that she has no guardian, or, if so, that there is a valid reason why the suit was not brought by him; but the demurrer does not raise this objection. The only question raised as to parties plaintiff by the demurrer is that the. suit should have been brought by the trustees of the State Sanitarium. We know of no law requiring or authorizing the trustees of this institution to bring suits in behalf of persons confined therein. The law authorizes them to bring suits for claims the institution has. Political Code, §§ 1411 (7), 1441. When a person has been adjudged insane and a guardian appointed, it would seem that suits in behalf of the lunatic should be instituted by the guardian, or that it should appear that some good reason exists why this could not be done. See Reese v. Reese, 89 Ga. 645; Dent v. Merriam, 113 Ga. 83. Persons under disability may always apply with confidence to a court of equity for relief in any case where the law affords no remedy, or the remedy afforded is inadequate, or the disability under which the person labors is such that relief can not be had at law. The statute in this State provides the method for assigning dower. It makes no provision for an application by a widow who is laboring under disability, and this alone might be a sufficient reason for resorting to equity; but when the relief sought is not only the assignment of dower, but also an accounting for rents, a court of equity is the only court that can give complete relief in one suit. The allegations of the petition were sufficient to make a case authorizing the interposition of a court of equity, and the petition as brought was not defective as to parties for any reason set forth in the demurrer. See Bishop v. Woodward, 103 Ga. 287; Starr v. Newman, 107 Ga. 395.
4. The sheriff’s sale after the death of the husband, under an execution issued upon a judgment rendered against him in his [435]*435lifetime, did not divest the widow’s right to dower. The purchaser and those claiming under him took subject to this right. The code provides how dower may be barred, and such a sale is not there declared to be a bar to dower. Civil Code, § 4689. The general rule is that the widow is entitled to rents upon the dower land as finally assigned from the date of her husband’s death to the date of the assignment of dower. See Austell v. Swann, 74 Ga. 278. In this case the judge has ruled that the widow is not entitled to rents as against the La Grange Mills, except from the date that it went into possession. This ruling is unexcepted to, and is therefore the law of this case. The amount of rents claimed in the petition indicates that the plaintiff contends that the LaGrange Mills is liable for rents on the property in its improved condition. The question whether this claim is sustainable is not raised in any way in the demurrer, and no authoritative ruling can be made thereon; but nothing said or involved in this case will prevent the defendant from attacking this claim in subsequent proceedings which may be taken. There are respectable authorities, both in England and in this country, to the effect that the widow is not dowable of improvements made by an alienee, and therefore the rénts to which she is entitled would be based on the value of the land or the property at the time, the husband was last seized; and that the widow is not entitled to the benefit of improvements made either by the heir or the alienee. See Scribner on Dower, 604 et seq., 612 et seq. When the land of the husband has, after his death, passed into the hands of an alienee, who has placed valuable improvements thereon, increasing the value of the property, it would seem - that in equity a widow would not be entitled to claim as dower anything more than one third of the value of the land as it existed at the date of the husband’s death, and rents which would accrue from land of such value. Especially would this seem to be true where the application for dower-was delayed. This rule appears to arise naturally from the principle that the widow is dowable only in the property of the husband; she is not entitled to dower in the property of any other person.' See,, in this connection, Iverson v. Saulsbury, 65 Ga. 724; 10 A. & E. Enc. Law (2d ed.), 187 et seq.; Park on Dower, 256 et seq.
There is nothing in the petition which would authorize the [436]*436court to interpose an equitable bar to the application for dower. The petition set forth a cause of action, and there was no error in overruling the demurrer.
Judgment affirmed.
All the Justices concur.