Harber v. Harber

• Decision Date: 24 September 1921
• Docket Number: 2274.
• Parties: HARBER ET AL. v. HARBER.
• Court: Georgia Supreme Court

108 S.E. 520

152 Ga. 98

HARBER ET AL. v. HARBER.

No. 2274.

Supreme Court of Georgia

September 24, 1921

Syllabus by the Court.

"Dower is the right of a wife to an estate for life in one-third of the lands, according to valuation, including the dwelling house (which is not to be valued unless in a town or city) of which the husband was seized and possessed at the time of his death, or to which the husband obtained title in right of his wife." Civ. Code 1910, § 5247.

"In all cases to determine the character of an instrument whether it is testamentary or not, the test is the intention of the maker, from the whole instrument, read in the light of the surrounding circumstances. If such intention be to convey a present estate, though the possession be postponed until after his death, the instrument is a deed; if the intention be to convey an interest accruing and having effect only after his death, it is a will." Civ. Code 1910, § 3828.

"There being in this state no statute inhibiting the sale of land by the husband to defeat his wife's right of dower, save as to lands to which the title came through her, an actual sale and conveyance, though made for the purpose of defeating dower, will be upheld in favor of the purchaser against the widow's claim after her husband's death." Flowers v. Flowers, 89 Ga. 632, 15 S.E. 834, 18 L.R.A. 75.

(a) In this respect a voluntary conveyance stands upon the same footing and has the same effect as a conveyance based on an actual sale. Pruett v. Cowsart, 136 Ga. 756, 72 S.E 30. In the case last cited, it was held, in part, that a voluntary conveyance by a husband, of land in which he had an undivided interest as an heir of a former wife, would defeat the claim of dower asserted by a second wife after his death notwithstanding that such conveyance recited that a part of its consideration was that the grantor was to remain in possession of the land and receive the benefits therefrom as long as he lived.

On August 24, 1916, G. W. D. Harber, a widower 65 years of age married May Harber, a widow 44 years old. At the time of the marriage Harber had a large estate, consisting of both realty and personalty, and 9 children by a former wife, who died about one year previously to the second marriage. Under such circumstances Harber made a will in January, 1917. Being subsequently informed by his attorney at law that his will could not defeat the right to dower in the real estate of which he might die seized and possessed, Harber proceeded for the avowed purpose of preventing his widow (should his wife survive him) from taking dower in his lands, to convey all of it separately to his children. There were 10 deeds executed and delivered at different dates between March 21 and April 12, 1919. The deeds were in the form of warranty deeds, some of which purported to convey the fee to the first taker; some provided a life estate in the first taker, with remainder over; some were to trustees for...