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Beavors vs. Winn and others.

declaration would not be held sufficient, may admit of some doubt. The law is silent as to the manner in which the declaration of her choice shall be made. I should be inclined, at this moment, to the opinion, that an election made in her will, and the will passed to record, within the year, ought to be held sufficient. The better practice, however, unquestionably is, for the widow to appear before the Court of Ordinary, and there announce her choice, and place it upon the record of that Court.

If the widow fails to elect before her death, the executor cannot elect; for then, there are no two estates between which to choose. The widow chooses between her dower, which is a life estate for her life, and a child's part in fee, but when she dies, her life estate determines. If the executor can come in after her death, and take the fee, it is not an election between that and dower, but it is an independent appropriation of an estate, in which the widow had no interest, for the benefit of her heirs. The Statute contemplates no such thing-the widow is alone its beneficiary. Moreover, if the executor may, in this case, take the child's part for the benefit of the widow's heirs, the result is

1st. That the widow has enjoyed the dower estate. 2d. Her heirs get the fee, in a child's part, and

3d. The heirs or distributees of the husband are defeated in their remainder in fee, in the estate in dower, upon the death of the widow. These things are in conflict with the law and with the justice of the case. It is argued that the law gives twelve months to make the election-that the widow died before the year expired, and it may have been her purpose to elect, and from ought that appears, she would have elected, had she lived within the year, and therefore, the executor ought now to elect for her. This reasoning is plausible, but upon examination, evaporates into thin air. Those considerations, which I have before urged, are conclusive against it. Non constat, that she would have elected had she lived. Her purpose to do so does not appear, and that which does not appear, does not exist. The contrary does appear; for by the terms of the law, until she does in fact elect, she is held to have taken her dower. In this case she did not elect; she is, therefore, held to have taken

Strickland vs. Maddox and others.

her dower. She takes the risk of dying within the year, and she must, at the peril of losing the child's part, elect before she dies.

Let the judgment be affirmed.

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No. 40. HENRY STRICKLAND, plaintiff in error, vs. POSEY MADDOX et al. defendants.

[1] Where the Petit Jury, in a claim case, have returned a verdict, giving damages against the claimant, and the verdict is appealed from, and pending the appeal, the claim is withdrawn: Held, that the case goes on, as to the question of damages, and stands on the docket for trial as before, and no execution can issue for the damages until the appeal is disposed of.

Rule, in Cherokee Superior Court, Decided before Judge HOOPER, August Term, 1850.

A claim case between

The facts of this case are as follows: Henry Strickland, plaintiff in fi. fa. H. H. Waters and I. R. Foster, defendants, and Posey Maddox, claimant, was tried before a Petit Jury, August Term, 1846, of Cherokee Superior Court, when the Jury found the property subject, and 10 per cent. damages, for which judgment was signed against the claimant and W. P. Hammond, security, on claim bond. From this verdict, the claimant appealed, and pending the appeal, withdrew his claim.

The plaintiff in fi. fa. then moved the Court, that the Clerk do issue execution against the said Maddox and his security, for the amount of the damages found by the Petit Jury.

This motion was refused by the Court, and plaintiff in fi. fa. excepted..

BROWN and PEEPLES, for plaintiff in error.

Strickland vs. Maddox and others.

DOUGHERTY, for defendants.

By the Court.-LUMPKIN, J. delivering the opinion..

[1.] Henry Strickland, having an execution against Henry H. Waters and Ira R. Foster, caused it to be levied on a lot of land which was claimed by Posey Maddox. At August Term, 1846, of the Superior Court of Cherokee County, the Jury found the property in dispute subject to the fi. fa. with 10 per cent. damages, believing that the claim was interposed for delay. The claimant, Maddox, being dissatisfied with the verdict, entered an appeal in terms of the law. At August Term, 1847, of said Court, the claim was withdrawn. Application was recently made to James Jordan, the Clerk of the Court where the cause was pending, to issue an execution upon the first judgment, which he refused to do. An order was then applied for, to compel a compliance with this request, which the Judge of the Superior Court refused to grant; and it is to reverse this judgment that this writ of error is prosecuted.

The appeal being still in Court, undisposed of, we hold that the Court was right in denying the motion. Attaway vs. Dyer and others, 8 Geo. Rep. 184.

Judgment affirmed.

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No. 41.-CALEB C. WEEKS AND WIFE, plaintiffs in error, vs. ABRAHAM SEGO, administrator, &c. defendant.

[1.] When a particular mode or manner is pointed out, for the disposition of the separate estate of a married woman, in the marriage settlement, she cannot dispose of it in any other way, as where she had the power of disposing of her property by will, with the consent and approbation of her trustee: Held, she could not make a valid disposition of it by will, without the consent and approbation of such trustee.

[2.] Where one of several parties in a cause signs an appeal bond, with security, and there are other parties who have failed to sign the bond according to law: Held, under the Act of 1839, that the appeal was good as to the party who had properly signed the appeal bond. [3.] Where a party makes application for letters of administration on the estate of a decedent, and his application is resisted by other parties claiming to have a will, the party making the application for the letters of administration will be considered the promovant in the cause, and will be entitled to open and conclude the argument of the cause to the Jury.

Appeal from Court of Ordinary. In Richmond Superior Court, June Term, 1850. Tried before Judge STARNES.

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