#### Harris *vs.*Coats.

1. It was held in *Ross vs. Wilson,*58 *Ga.,*249, that the widow of a tenant in common is dowable of lands held by her deceased husband, at the time of his death, jointly with another, and that parti, tion need not precede the setting aside of the dower, but that the dower might first be set aside, and partition might afterward be made.

*4162. A widow applied for dower, alleging that her husband was a tenant in common of certain lands; objection was filed by the other alleged tenant, who claimed that he al one held the land, and denied the interest of the deceased. It was shown that he had repeatedly acknowledged the right of the deceased to an undivided half interest, had returned the property as theirs jointly until after the death of the deceased, and that the latter had, with his knowledge, received a portion of the rents; also that, shortly after the burial of the deceased, the objector went to his residence and demanded an inspection of his papers, and, upon being refused, persisted in his purpose, saying that there was a paper among them which he intend ed to have before tbe sun went down; that he asked for the keys of ihe desk in which the deceased left his papers, but they were refused; that subsequently a son of the deceased and brother-in-law of the objector spent a night at the house and obtained the keys ; that the desk was removed, and after that? none of the papers it contained could be found:

*Bell,*that the evidence warranted a finding in favor of the applicant for dower, and that the conduct of the objector was sufficient to estop him from denying the seizin of the land by the decedent.

(a.) There was no error in admitting parol evidence to establish the title of the deceased to the land, nor in the charge of the court upon that subject.

*(b.)*No diligence was shown in procuring the newly discovered evidence, and it was, at most, merely cumulative.

December 15, 1885.

Estates. Tenants. Husband and Wife. Dower. Estoppel. Evidence. Before Judge Stewart. Pike Supe rior Court. April Term, "1885.

Mrs. Coats, widow of H. H. Coats, deceased, applied for dower in the undivided one-half interest which, it was alleged, her husband held in certain land-, A. B. Harris being the other tenant in common. Commissioners were appointed, and they made a return assigning dower. Harris filed objections, alleging that the husband of the applicant had no title to any portion of the land, but that the objector owned it. On the trial, the jury found a verdict sustaining the report of the commissioners. The objector moved for a new trial, on the following among other grounds;

*417(I.) Because the verdict was contrary to law and evidence.

(2.) Because the court admitted evidence of verbal statements and admissions by Harris that the land belonged to Coats.—The objection was that the title could not be so proved. [The court certified that he held that statements of one in possession “ consistent with his possession” were admissible.]

(3.) Because the court charged the jury that title to lands can be established by showing the payment of the purchase money and possession of premises.

(4.) Because of newly discovered evidence of the son of Coats to show that the latter never claimed the land.

The motion was overruled, and Harris excepted.

■ E. F. DuPree; Boynton & Hammond, for plaintiff in error.

J. S. Pope, by John I. Hall, for defendant.

Hall, Justice.

The material question in this case is, whether the widow of a tenant in common is dowable of lands held jointly, at the time of his death, with another. It was held in *Ross vs. Wilson,*58 *Ga.,*249, that she was, and that partition need not precede the setting aside of the dower; that her legal right being established, she would be entitled to a writ of partition under the provisions of the statute, to have the land divided so as to obtain her one-third part thereof according to valuation; that her legal right to dower at the death of her husband was as perfect before partition of the land as it would have been afterwards ; and that, while such partition did not create or confer the right on her, it was necessary for its enjoyment.

The only objection to the demandant’s right to dower was filed by Harris, the co-tenant of deceased, who alleged that he did not hold in common with the deceased, but *418was seized and possessed of the land in his own right. On this issue the cause was submitted to the jury, and they found against the objection and in favor of the widow. Harris had the deeds conveying to him title to the land; but whether he had conveyed a moiety thereof to Coats, the deceased husband of the demandant, was the point in controversy. There was ample evidence to sustain this verdict; it was shown that Harris, on repeated occasions, had acknowledged Coats’s right to an undivided half interest in the land, had returned it for taxation for several years as their joint property, and never returned it as solely his own until after Coats’s death. Coats had, with his knowledge^ received a portion of the rents; and shortly after Coats’s burial, Harris went to his residence and demanded an inspection of his papers; when this demand was refused, he persisted in his purpose, saying that there was a paper among them that he intended to have before the sun went down, and asked for the keys of the desk in which deceased kept his deeds and other papers. This request was refused, because demandaht had been informed “ that he meant her no good.” George Coats, a son of deceased and brother-in-law of Harris, came afterwards, spent a night, and obtained the keys ; the desk was removed, and after that, none of the papers it contained could be found. It is fairly inferable that this was done in collusion with Harris. This conduct on his part was sufficient to estop him from denying the elder Coats’s seizin of the land. *Wiece vs. Marbut et*al., 55 Ga., 613. The case was scarcely doubtful, under the proofs. The verdict was warranted, though not absolutely required, by the evidence.

There was no error in admitting parol evidence to establish the title of deceased to the land, nor in the charge of the court upon that subject.

No diligence was shown to procure the newly discovered evidence, which, at most, was merely cumulative.

There is no error requiring our interference, and the court did not abuse its discretion in refusing a new trial.

Judgment affirmed.