The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1890-07-09
order Overriding Exceptions and
Sustaining Judgment of the Pro.
bate Court.

IHE STATE OF SOUTH CAROLINA.
COUNTY OF ABBEyILLE.
In Common Pleas.
Martha McCracken, Plaintiff, against Will
liam H. BROOKS, ct al, Defendants.
Plaintiff brought this action in the Probate
Court for said county 10 recover her dover in
certain tract or parcel OF land aliened by
her deceased husband in his life time, and
during his coverture with the plaintiff, and
which was, at the commencement of tie ac-
ton, In The possession Of the defendants.
The right OF the plaintiff to dover In said
lands was contested by the defendants on sew
has The e1 paP Rad acegpea agSea se tas
distributive share in the personal estate of
her husband, who died intestate, and was
therefore barred of her dover in said lands.
dered his decree adJudgiug dover to the plain
TIL In the lands In question. From this judg-
nlent the defendants appealed to this Court
on several grounds.
ilndlng certain facts relating to the principal
issue; and In not finding certain other facts
and In failing to put the plaintiff to her elec-
l have carefully considered the several
grounds of exception, In connection with the
testimony submitted, and the principles Of
law lhVol we'd and am Of opinion that the
tanned.
The Widows right OF dover Is favored In the
law. III Is one with which the law invests
hoi, ohu eue eau only oe deprived OF IL Dy ner
own act or voluntary consent. The accept
ance OF the provisions under the Statute by a
WIDOW, Is no doubt legal bar 10 her right OF
dover. The Statute plainly meant 10 create
an election to be made by the widow between
her dover at common law, and the provision
made for her by the Statute."-Avant vs. Rob-
ertson, 2 Mem. 2l5. To decide her election,
however, there must be some unequiyocal
act., The circumstances as disclosed by the
evidence In this case, do not in my opinion
90 10 SHOW any such uneQuivocal act of elec-
tion and acceptance Of the statutory provi..
ions, as would bar the plaintiff 8 right or dow
er In the lands In question. On the contrary,
1t would seem that the plaintiff has elected 10
stand on her common law right Of dover. and
the Statute And this being SO her legal right
Dawes. 3 Rich. 28l.
AT the hearing OF the appeal in this Court,
the defendants insisted that they were enti.
tied TO have the question OF fact as to whether
the plaintiff had not elected to accept her dis.
tributive share in her deceased husbands es-
tate submitted TO jury. A trial by jury in
the Circuit Court on appeal from the Probate
according to the rules Of law jury trial may
be demanded, and except in those cases, q
trial by jury is discretionary with the Circuit
Judge. Rollin VS.. Whipple II s. e. SO. The
not, in my opinion, such an Issue as by the
rules Of law jury trial may be demanded.
1t Is therefore ordered and adjudged, that
the defendants grounds Of exception and each
and every OF them be, and the same are
hereby overruled, and that the Judgment of
! the Probate Court be sustained.
1t Is further ordered that this judgment or
der be certified by the Clerk OF this Court to
the Probate Court, for such further proceed
necessary to carry into effect the Judgment of
the Probate Court. JAS F, IZEAR,
June 70, 1880. Presiding Judge.