Starr v. Newman

• Citation: 33 S.E. 427,107 Ga. 395
• Parties: STARR v. NEWMAN.
• Decision Date: 25 April 1899
• Court: Georgia Supreme Court

33 S.E. 427

107 Ga. 395

STARR v. NEWMAN.

Supreme Court of Georgia

April 25, 1899

Syllabus by the Court.

1. When a husband dies seised and possessed of land, his widow has a vested right to dower therein; and, when the land is sold by the administrator on an order of the ordinary, the title acquired by the purchaser at such sale is subject to the widow's right of dower, unless she has waived the same in some way known to the law.

2. The widow is not estopped from asserting this right by the fact that she consented for the administrator to procure an order and sell the real estate, nor by the further fact that, after the sale, she applied for a year's support in the proceeds thereof; it appearing that the purchaser at the sale was not, in buying the property, aware of this conduct of the widow, and consequently would not have acted thereon, or regarded the same as constituting a waiver of her right of dower.

Error from superior court, Haralson county; C. G. Janes, Judge.

Action by L. M. Newman against S. F. Starr. Judgment for plaintiff and defendant brings error. Reversed.

W. F Brown, for plaintiff in error.

Edwards & Edwards, E. S. & G. D. Griffith, and Jas. Beall, for defendant in error.

LEWIS J.

Mrs. L M. Newman, the defendant in error, brought her petition to the January term, 1896, of Haralson superior court, against Mrs. S. F. Starr, the plaintiff in error. The petition made substantially the following case: On the 26th day of January 1893, the husband of Mrs. Starr died seised and possessed of 80 acres of land. On the 1st of June, 1894, the ordinary of Haralson county appointed James Beall administrator of the estate of said deceased by the request and at the instance of his widow, Mrs. Starr. She waived her right to dower in the land, and requested the administrator to wind up the administration by selling the land, and paying the balance of the purchase money on the same, and by paying the debts of said deceased. Acting upon this request, the administrator obtained from the ordinary an order for the sale of the land, and on the 2d day of October, 1894, it was accordingly sold, after due advertisement, to M. R. and Joel Phillips, they being the highest and best bidders. On the 23d day of October, 1894, the petitioner, without any knowledge or notice of the facts above set forth, purchased the property from the said M. R. and Joel Phillips in good faith, paying therefor full value. After the sale, Mrs. Starr removed from the premises, where she had been living since the death of her husband, and surrendered possession of the same on the day of petitioner's purchase. Petitioner then took possession of the land, and held it until the 22d of February, 1895, when Mrs. Starr forcibly and fraudulently took possession of the land, with full knowledge of petitioner's right and title thereto, and still retains the same forcibly against petitioner. Mrs. Starr is insolvent, and unable to respond to any judgment that may be rendered in favor of petitioner for the rent of the land. On the 22d of July, 1895, Mrs. Starr filed her application in Haralson superior court for the appointment of commissioners to admeasure to her dower in the land. They were accordingly appointed, and laid off to her 23 acres of the land for dower. It is claimed in the petition that the title of the deceased was devested by the administrator's sale. The petitioner prayed for the appointment of a receiver to take charge of the land, and preserve the rents and profits thereof until the rights of the parties could be adjudicated, and that judgment be rendered declaring the property to belong to petitioner, and free from the right or title of Mrs. Starr, and that petitioner be restored to the possession of the premises, and that the petition be taken as an objection to the return of the commissioners assigning dower in the land. There was an amendment to the petition, alleging that Mrs. Starr had applied for the whole of the money arising from the sale of the land by the administrator, the same being $250.50, to be set aside to her and her minor children as a 12-months support, and that on the trial of the application the jury found a verdict in her favor for $101.38. After the plaintiff announced closed, the court directed a verdict for the plaintiff, finding for her the premises in dispute, and further finding against the dower. To this judgment of the court defendant excepted, and in her bill of exceptions assigns the same as error, and also complains of various rulings of the court in the progress of the trial. It does not appear from the record that the defendant below offered any testimony after the plaintiff had closed. The testimony introduced on behalf of the plaintiff showed a sale of the property by the administrator; that she had acquired title from the purchaser at such sale; that a year's support was afterwards set aside to the widow; and that commissioners to set aside to her dower had been appointed, and made their return, as alleged in the petition. It further appeared from the testimony that Mrs. Starr, the petitioner, after the death of her husband, asked Beall to take charge of the estate of her husband as administrator, and to treat it like his own; that he accordingly applied for letters of administration, and was appointed administrator of the estate; that she told him that she had but one request to make of him in reference to his administration, and that was not to sell the land until the fall of the year, when it would bring a better price. He accordingly procured an order from the court of ordinary, and sold the land thereunder the following October. After the sale, the widow, Mrs. Starr, on being told by the...