The opinion of the Court was delivered by
Mr. Justice Fraser.This is an action for the settlement of the estate of N. S. Gibson. There are but two questions before this Court. The widow was allowed dower in language that the appellant thinks is too- broad' and that requires him to pay the whole dower. The appellant also thinks that he ought to have the whole of two' tracts of land and the decree only assigns him a part of each. The exceptions will be considered as made.
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Exception I. “His Honor erred, it is respectfully submitted, in requiring commissioners to go upon all the lands of which N. S. Gibson died' seized and admeasure to said Rebecca A. Gibson one-third of the lands aforesaid unless defendant, James S. Gibson, within sixty days from the filing of the decree, pay to the said Rebecca Gibson, or her attorney, one-sixth of the value of said lands, the value thereof to be ascertained in the manner prescribed by law. He should have allowed the defendant, James S. Gibson, to- release the lands claimed by him without the necessity of paying for the dower of Mrs. Gibson in lands to which he made no claim.”
This exception shows on its face that James S. Gibson was not required to pay the whole dower or any part of it. It must be construed to mean that James S. Gibson should surrender the proportion of the land or pay his proportion of the dower. The option that he claims,
i.
<?., to surrender the proportion of land instead of paying the sixth of the assessed value was fully provided for.
This exception is overruled.
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Exception II. “His Honor erred, it is respectfully submitted, in finding and holding that the testimony conclusively shows that the only portion of White House in the possession of James S. Gibson was, that portion beyond the ditch immediately beyond the house occupied by Serena Gibson, and that the only portion of Oakey Point which was in possession of Jas. S. Gibson was the four hundred and thirty-eight acres previously conveyed to him by formal deed of conveyance. He should have held that Jas. S. Gibson was at the time of the making of the will of N. S. Gibson in possession of White House to' the railroad on the north, and of all Oakey Point except a small parcel thereof including the store building, the ginnery and the buildings immediately surrounding same, and that by said will the said N. S. Gibson devised all of White House and all of Oakey Point except the small parcel just mentioned to said Jas. S. Gibson.”
This exception must be overruled for the reasons stated by the Circuit Judge. It is unnecessary to' rqieat his, statements as his decree will be reported.
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This Court will only add, that if a vendee of a portion of a tract of land were permitted to> say after the vender’s death, “It is true only a portion of the land was included in my deed, but the intention was to include the whole tract, and the vendor used the part not included in my deed by my permission,” no holding of land would be safe.
The judgment appealed from is confirmed.
Mr. Justice Woods
disqualified.