By the Court.
Lumpkin, J.
delivering the opinion.
We do not pretend in this case, to examine in detail, the numerous points presented by this record. All we shall attempt is, to announce succinctly, the judgment of the Court upon its main facts and features.
[1.] We are clear that the method adopted by the widow of Dr. Calloway, of electing to take a child’s part, instead of dower, in the real estate of her deceased husband, was right and proper. None better has been suggested, or occurs to this Court. It is objected, that no notice was given to the administrator. He lived in the. county and had administered there upon the estate. At the time of this transaction, the widow was compelled to make her election within twelve months from the death of the testator or intestate. Under the law, therefore, as it then stood, it might have become indispensably necessaiy to make an election before administrator was appointed or an executor qualified. Consequently, notice to the representative of the estate was not required.
[2.] It is insisted that the administration in Taliaferro county, where the election was made, was void for want of [170]*170jurisdiction in the Court to grant it. It is true, that Dr. Calloway resided in another county at the time of his death. And since the Act of 1839, that being the case, administration could not have been-granted except in the county where he jived at the time. Before 1839, however, the law had not been settled, and the practice was not uniform. In thousands of instances, the Courts of Ordinary assumed jurisdiction wherever they found assets. And it would not do to set aside all such administrations at this late day. The Court of Ordinary of Taliaferro county, being a Court of general jurisdiction quo ad this subject, we are bound to presume in favor of their judgment; and that proof of assets, was made.
[3.] The next main objection urged, is, that the right to this child’s part which the widow of Dr. Felix J. Calloway elected to take, was never reduced to possession by Dr. Royston, who intermarried with the widow; and that the same survived, upon her death and his death, to Dr. Calloway’s children.
Were this a chose in action, which Dr. Royston had failed to collect in the lifetime of his wife, still the right at her death would have survived to him. But it is land; and the title of the widow, as joint tenant with her children, vested in her husband upon marriage; and in right of his wife and as guardian of the children, he took possession and occupied the land until his death.
' It is suggested, that having become guardian of the two minor children of Dr. Calloway, Dr. Royston held the land as trustee for them. But this will not fully explain tlie possession. For while it is true, that as guardian he occupied two-thirds of it for his wards, this gave him no right to the remaining third; he was in, as husband, upon that third: and he having survived his wife, the land was his; and descended at his death to his heirs, who are the complainants in the bill. What would have been the rights, of the wife, had she survived, it is unnecessary to decide; [171]*171we suppose, however, nothing more than she acquired in the estate of her former husband — dower or child’s part.
[4.] But the main question in this case is, do the pleadings and proof make such a case as will authorize, even much less justify, a sale of this land? After much reflection, we are forced to the conclusion that they do not
This case was before this Court in July 1853. 13 Ga. Rep. 425. It came up, upon judgment upon demurrer. The bill alleged that the land, “was only valuable as a cotton plantation; and that to have the same partitioned into three separate and distinct parcels, would vastly diminish its value and render it of little worth to either of the parties in interest; but that if the tract was sold together, it would bring $35,000 or some other large sum,” and the demurrer admitted this statement to be true.
We held that the bill made such a case as is contemplated by the Act of 1837 (Cobb 583-4) and consequently should not be dismissed upon demurrer. The Court in its opinion, however, goes on to say, “'whether upon the hearing, the proof will sustain the allegation is another thing. If upon the trial the complainants should fail' to make it satisfactorily to appear by testimony, to the Court and jury, that all things considered, it is best that the plantation- should be sold in bulk, rather than be divided, she will fail of course to obtain a decree for a sale.”
We are not satisfied that the complainant has made out such ,a case as would authorise a sale. The entire tract of land is too large to invite a vigorous competition. The bidders would necessarily he few, and in all probability, the result would be that combinations would be formed to subdivide the plantation ; and in this way, the interest of the heirs would be sacrificed instead of promoted. Set apart one-third of this land to Cyrus A. Royston and wife, which they insist shall be done, and the remaining two-thirds would certainly be large enough to attract the attention of the most respectable capitalists; and Cyras A. Royston and wife, are [172]*172willing and anxious to risk the depreciation upon their portion. They may 'want it for a home; but after all, these considerations, weighty as they are, are not those which have mainly influenced our deliberations'. Dower is a favorite of the law. The Acts of 1841 and 1850, show how cautious our own Legislature has been, not to interfere with this right, forcibly and against the will of the wife, and that too even in cases where there would seem to be an apparent necessity to do so. Her consent to take money, in lieu of dower, would seem to be indispensable in all cases. True, the right of Mrs. Cyrus A. Royston is inchoate, still it is not contingent ; she cannot be deprived of it, neither by the act of her husband nor of the law. To divest her of it, her voluntary relinquishment must be procured,- Under these circumstances, wc do not feel at liberty in a case of such doubtful propriety and expediency as the present, to undertake to control her election, and to say that she shall .consent to a sale and unite in a conveyance to the purchaser.
[5.] The law is always reluctant to disturb private rights. It cannot be too much so. It is going quite far enough to seize and appropriate individual property to public purposes, even where just compensation is made. It should require a strong case to justify the Courts in going beyond this.
[6.] It may be said that the last section of the act of 1837, demonstrates upon its face, that the Legislature foresaw that there would be recusant parties; and hence the provision to coerce the execution of deeds and other suitable conveyances, in conformity with the decree -or order of sale. And this may be true of those who are sui juris. But as we have already intimated, neither the husband nor the Courts, nor any other human power, can compel the wife to relinquish her right of dower, inchoate though it may be, when she is not asking the aid of the Court. Should she become a suitor, seeking the aid of the Court, the case would be quite different.
Again, it may be argued, that a sale of the entire premises [173]
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By the Court.
Lumpkin, J.
delivering the opinion.
We do not pretend in this case, to examine in detail, the numerous points presented by this record. All we shall attempt is, to announce succinctly, the judgment of the Court upon its main facts and features.
[1.] We are clear that the method adopted by the widow of Dr. Calloway, of electing to take a child’s part, instead of dower, in the real estate of her deceased husband, was right and proper. None better has been suggested, or occurs to this Court. It is objected, that no notice was given to the administrator. He lived in the. county and had administered there upon the estate. At the time of this transaction, the widow was compelled to make her election within twelve months from the death of the testator or intestate. Under the law, therefore, as it then stood, it might have become indispensably necessaiy to make an election before administrator was appointed or an executor qualified. Consequently, notice to the representative of the estate was not required.
[2.] It is insisted that the administration in Taliaferro county, where the election was made, was void for want of [170]*170jurisdiction in the Court to grant it. It is true, that Dr. Calloway resided in another county at the time of his death. And since the Act of 1839, that being the case, administration could not have been-granted except in the county where he jived at the time. Before 1839, however, the law had not been settled, and the practice was not uniform. In thousands of instances, the Courts of Ordinary assumed jurisdiction wherever they found assets. And it would not do to set aside all such administrations at this late day. The Court of Ordinary of Taliaferro county, being a Court of general jurisdiction quo ad this subject, we are bound to presume in favor of their judgment; and that proof of assets, was made.
[3.] The next main objection urged, is, that the right to this child’s part which the widow of Dr. Felix J. Calloway elected to take, was never reduced to possession by Dr. Royston, who intermarried with the widow; and that the same survived, upon her death and his death, to Dr. Calloway’s children.
Were this a chose in action, which Dr. Royston had failed to collect in the lifetime of his wife, still the right at her death would have survived to him. But it is land; and the title of the widow, as joint tenant with her children, vested in her husband upon marriage; and in right of his wife and as guardian of the children, he took possession and occupied the land until his death.
' It is suggested, that having become guardian of the two minor children of Dr. Calloway, Dr. Royston held the land as trustee for them. But this will not fully explain tlie possession. For while it is true, that as guardian he occupied two-thirds of it for his wards, this gave him no right to the remaining third; he was in, as husband, upon that third: and he having survived his wife, the land was his; and descended at his death to his heirs, who are the complainants in the bill. What would have been the rights, of the wife, had she survived, it is unnecessary to decide; [171]*171we suppose, however, nothing more than she acquired in the estate of her former husband — dower or child’s part.
[4.] But the main question in this case is, do the pleadings and proof make such a case as will authorize, even much less justify, a sale of this land? After much reflection, we are forced to the conclusion that they do not
This case was before this Court in July 1853. 13 Ga. Rep. 425. It came up, upon judgment upon demurrer. The bill alleged that the land, “was only valuable as a cotton plantation; and that to have the same partitioned into three separate and distinct parcels, would vastly diminish its value and render it of little worth to either of the parties in interest; but that if the tract was sold together, it would bring $35,000 or some other large sum,” and the demurrer admitted this statement to be true.
We held that the bill made such a case as is contemplated by the Act of 1837 (Cobb 583-4) and consequently should not be dismissed upon demurrer. The Court in its opinion, however, goes on to say, “'whether upon the hearing, the proof will sustain the allegation is another thing. If upon the trial the complainants should fail' to make it satisfactorily to appear by testimony, to the Court and jury, that all things considered, it is best that the plantation- should be sold in bulk, rather than be divided, she will fail of course to obtain a decree for a sale.”
We are not satisfied that the complainant has made out such ,a case as would authorise a sale. The entire tract of land is too large to invite a vigorous competition. The bidders would necessarily he few, and in all probability, the result would be that combinations would be formed to subdivide the plantation ; and in this way, the interest of the heirs would be sacrificed instead of promoted. Set apart one-third of this land to Cyrus A. Royston and wife, which they insist shall be done, and the remaining two-thirds would certainly be large enough to attract the attention of the most respectable capitalists; and Cyras A. Royston and wife, are [172]*172willing and anxious to risk the depreciation upon their portion. They may 'want it for a home; but after all, these considerations, weighty as they are, are not those which have mainly influenced our deliberations'. Dower is a favorite of the law. The Acts of 1841 and 1850, show how cautious our own Legislature has been, not to interfere with this right, forcibly and against the will of the wife, and that too even in cases where there would seem to be an apparent necessity to do so. Her consent to take money, in lieu of dower, would seem to be indispensable in all cases. True, the right of Mrs. Cyrus A. Royston is inchoate, still it is not contingent ; she cannot be deprived of it, neither by the act of her husband nor of the law. To divest her of it, her voluntary relinquishment must be procured,- Under these circumstances, wc do not feel at liberty in a case of such doubtful propriety and expediency as the present, to undertake to control her election, and to say that she shall .consent to a sale and unite in a conveyance to the purchaser.
[5.] The law is always reluctant to disturb private rights. It cannot be too much so. It is going quite far enough to seize and appropriate individual property to public purposes, even where just compensation is made. It should require a strong case to justify the Courts in going beyond this.
[6.] It may be said that the last section of the act of 1837, demonstrates upon its face, that the Legislature foresaw that there would be recusant parties; and hence the provision to coerce the execution of deeds and other suitable conveyances, in conformity with the decree -or order of sale. And this may be true of those who are sui juris. But as we have already intimated, neither the husband nor the Courts, nor any other human power, can compel the wife to relinquish her right of dower, inchoate though it may be, when she is not asking the aid of the Court. Should she become a suitor, seeking the aid of the Court, the case would be quite different.
Again, it may be argued, that a sale of the entire premises [173]*173may be decreed, subject to dower. How can such a decree be executed? Mrs. Cyrus A. Royston is only entitled to dower in the one-third part of this land, belonging to her husband. Unless this one-third part be partitioned off, how can dower be carried out of the whole tract, in the event of her surviving her husband ? -And were this practicable, would, not this cloud or incumbrance over the title of the purchaser, depreciate its marketable value?
As to the injury which would result to the heirs of Dr. Royston by a further subdivision of their third into three parts, that is a matter which cannot affect the present issue. That contingency can be prevented by a sale of that entire third, or by uniting the two-thirds, as hereinbefore suggested. Swain and wife are willing to a sale; and for the reason just given, the testimony of Eubanks Tompkins was improper, for irrelevancy, and should have been rejected.
[7.] We see no error in the. .refusal.by the Court to allow defendant’s counsel to ask the juror, John M. Cochran, whether he had not formed and expressed the opinion, that it was better to sell the land than divide it.
[8.] We think that the mode of qualifying Edward J. Swain to his answer was irregular, if not unauthorized. It should have been sworn to before some judicial officer of the State, or some one authorized by the laws of Georgia, or by act of Congress, to administer the oath out of the State.
Mrs. Swain’s answer may have been sufficient j;o bind her, it could affect nobody else.
We are of the opinion, that Mrs. Mary Frances Royston, was not made a party to the bill, nor could she be prejudiced in any way by the proceeding.
It follows from the general view which we have already taken that there was error in the 7th, Sth.and 9th, given by the Court to the jury, as set forth in the bill of exceptions.
[9.] As to the objection that the land is situated in different counties, we see nothing in that The litigation does not contravene that provision of the Constitution which rc[174]*174quires titles to land to be tried in the county where the land lies. For while it. is true to some extent, that the title is involved ; still it is incidental only to the main controversy, and the Constitution manifestly refers to cases brought for the purpose of trying the title.
Upon the whole, our judgment is, that the cause should be remanded, with permission to the complainants to amend the prayer of the bill, so as to authorize a decree for the division of the land into three equal parts, one to he assign ed to the heirs of George D, Royston, deceased, one to Swain and wife, and the other third to Cyrus A. Royston and wife.
Judgment reversed.