Fisher v. Clements' Ex'or
Fisher v. Clements' Ex'or
Opinion of the Court
delivered the opinion of the court.
This is an appeal from a decree of the circuit court of Essex county, rendered on the sixteenth day of September, 1882. John W. Fisher, deceased, left a widow surviving him,.whose heirs are the appellants here. The appellees’ testator, in the year 1870, instituted a creditors’ suit against the widow and heirs of John W. Fisher, to subject his real estate to the payment of his debts. The widow was called on in the bill to state whether she elected to take her dower in her husband’s estate in kind, or to have it commuted. The cause was referred to a commissioner for account and report, and especially to report whether the widow elected to take her dower in kind, or to have it commuted; and, if she elected to have it commuted, to report to the court the value thereof. The commissioner reported that the value of the real estate, consisting of three farms, was $5,500, and the commuted value of the widow’s dower, on that basis, to be $1,514.13, and that the widow elected to have the dower commuted. Thereupon a decree was rendered, receiving and confirming this report of the commissioner, decreeing the sale of all the real estate of the decedent free from the dower claim of the widow, who was then a young woman of thirty five years of age. The land was all sold after some delay, and, in lieu of money, a lot, with a house on it, in the town of Tappahannock, was received by the leave of the court, and the widow consenting to take this lot in lieu of her share of the money for which her husband’s lands sold, as far as it would go, the same was allotted to her. The actual sales of these lands did not amount to as much as $5,500, but the actual sales were $3,535. Upon this amount, as a basis, the commuted dower of the widow would amount to a few dollars less than $1,000; but the lot was assigned to her, and she took possession of it and held it as her own to the
The said report of the special commissioners who made the sale of the real estate of John W. Fisher must be read together with all the other proceedings in the cause to determine its meaning, and to ascertain what was the real transaction. The bill called on the widow to exercise her election as to whether she would have her dower assigned in kind in her deceased husband’s real estate, or whether she was willing to accept a commutation in lieu thereof. The matter was referred to a commissioner in chancery for account and report, and he reported the election of the widow to have her dower commuted, and the value thereof, upon the estimated value of the real estate, ascertaining the basis of the commutation, whatever might be the actual sales, no one objecting, but all the parties
It follows that the decree complained of is erroneous, and the same must be reversed and annulled.
Degree reversed.
Reference
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- Syllabus
- Dower—Commutation—Widow’s heirs.—In suit against widow and heirs of decedent, to subject his lands to his debts, commissioner was directed to enquire and report if she elected dower in kind, or commutation. Commissioner reported that she elected commutation. Eeport was confirmed. The lands were sold free of dower. With her consent, and by leave of court, a lot in town was assigned her for her dower. Up to her death she possessed it. After her death, on petition to subject the lot to her husband’s debts— Held: The lot was the widow’s property in fee, and passed to her heirs.