
    McDaniel vs. Douglas.
    Where a widow does not dissent from the will within six months, but accepts, in lieu of dower, a provision for her made in the will, she can have relief in equity if her acceptance of the provision was procured by fraud, but not againBt a mistake as to the adequacy of the estate to meet the charge made upon it in her favor by the will.
    Mildred McDaniel, the widow of James McDaniel, filed this bill in the chancery court at Lebanon, against the exetor and the heirs of her deceased husband, praying that dower be allowed her out of the estate, and commissioners be appointed, &e.
    The bill charges that the husband died seized and possessed of real and personal estate; that he made a will, in which a proviso was made for1 her which was satisfactory; that she had conversations with the executor, Douglas, who stated to her that the estate was solvent and able to meet the debts, and sustain the provision made for her; and that he proceeded to pay off all debts as they are presented; and that she in consequence of these representations, and his course of conduct, failed to dissent from the will within the time allowed by law; that soon after ihe probate of the will, the estate was ascertained to be insolvent, and a bill was filed by the executor to sell the entire estate, real and personal, for ¿the satisfaction of debts. Slie declares that she would not have agreed to have accepted the provision, if she had'been informed of the facts, but would have availed herself of her legal rights and dissented from the will in due time. She charges that she has been deceived by the representations of the executor, and if relief is not granted, she will be deprived of all aid from the estate of her deéeased husband.
    The bill prays an injunction against the sale of the estate for the payment of debts, and for the allotment of dower, &c.
    The answer of the executor admits that a provision was made in lieu of dower in the will; that defendant did not dissent from the will but accepted the provision; that he did state that he believed the estate solvent, and that he did so believe at the time he made the statements, but that debts were afterwards presented of which he had no knowledge, &c. He denies all fraud, &c.
    The case was tried on bill, answer, replication and proof, by chancellor Cahal, at the July term, 1845. He was of the opinion that the provision intended to be made for the widow was in fact no provision, and that where there is no provision in a will for the widow, she was not bound to dissent; and that the course pursued by the executor was well calculated to mislead and deceive the complainant, and induce her not to dissent from the tei'ms of the will within the time prescribed by law.
    He therefore decreed that the dissent of the widow be then allowed, and that she have dower.
    The executor appealed.
    
      J. S. Brien, for the complainant.
    Does the act of 1784 bar complainant’s right of dower? We insist, upon a proper construction of the act, it does not. Upon examination of this statute, and the law in relation to descent, prior to the passage of the act, it will be seen, that the object of the ' Legislature was to improve the condition of the widow; that she should not only be entitled to dower, if the husband did not make suitable provision for her, but that she should have a portion of his personal estate: for this provision in personal property, her dower was restricted tq the lands that her husband died seized of.
    By the common law, the widow was entitled to a life estate of one third of the lands her husband had during the marriage, which the' husband could not deprive her of, in any way. He might have made a will, giving her other property in lieu of dower, but she would have had her election.— The statute of 1784 enlarges the power of the husband in this respect, and enables him; by the performance of a condition precedent, (as I shall presently show,) to defeat her right of dower altogether. '
    The statute provides, that, “If any person shall die intestate, or shall make his last will and testament, and not therein make any express provision for his wife, by giving and devising unto her such part or parcel of his real or personal estate, or to some other for her use, as shall be fully satisfactory to her, such widow,” &c. Now, what is the meaning of this statute? Is it that he must pretend to make a provision; or must he bona fide make such provision? Suppose he had made a will, and had only therein provided, that his property should be appropriated according to law; this certainly would not have been a will at all. Suppose he had made his will in contravention of law, this court would, as in the other case, have declared the will void; and that no person would be bound by it. What is the difference between the supposed cases, and the one under consideration? Here he has made a will that is void as fully'as though he had made it in violation of law, as in the supposed cases. He has actually made it against law; for he has given property to different persons, by the will, that he had no right to give — the whole of his property, under the law, being liable for the payment of his debts, and in direct opposition to the will, the whole estate appropriated to the payment of the debts. Therefore, we say, the will, to all intents and purposes, is void. Then, under this view of the will, it is not material whether the widow knew the condition of the estate or not, as there was nothing for her to dissent from.
    It is insisted that the statute only makes one exception, and that is, that the widow shall dissent in six months, and that this is the only way by which she may relieve herself from the operation of the will.
    This objection, if good at all, would be valid in all cases; which we see cannot be maintained.
    In the case of Smart and wife vs. Waterhouse, for the fraud practiced by Waterhouse upon the widow, in falsely representing the condition of the estate, the court decided that she was entitled to dower, notwithstanding she did not dissent within the six months. — 10 Yerg. Rep. 94.
    This is one exception to the statute not made in the statute. But it is said, that fraud vitiates all contracts; and if by fraud any thing is prevented from being done, that equity will regard it as having been done — this we understand to be the sound rule of construction. But we understand the rule to be as well settled, that courts of equity will relieve against mistake of fact, or accident, as readily as it will against fraud; Then, if a case' can be shown, as is clearly shown in this case, that a mistake of fact (in which the widow is in no fault) prevented her from making her dissent, she is as much entitled to relief as though she had been prevented from /naking the dissent by fraud: therefore, this case falls withih the rule of Smart and wife vs. Waterhouse,
    The cases of Reid vs. Campbell, in Meigs Rep. 378, and the case of Craven vs. Craven, 2 Dev. Eq. Rep, 338, are not precisely analogous cases. In these cases, there was provision made for the widows, by giving to them property, which they accepted, took and held, and with this bequest in their hands asked for dower also. In this case, there was nothing given, it was only pretended to be given; the dower is not therefore an additional amount asked from her husband’s estate, but it is all she can get.
    In the decision of Judge Gaston, in the case of Craven vs. Craven, he refers to the case of Miller and wife vs. Chambers, decided by the court of North Carolina. In that case, the husband died, made his last will and testament, and made no provision for his wife at all. Some time after ■ the six months had elapsed, she applied for dower, which was allowed her, upon the ground that as the husband had made no provision for her at all, there was nothing from which she could dissent. This case is such a case precisely as that, in principle.
    This is a contest between parties that were not before the mind of the Legislature, at the time they fixed the six months’ limitation. The evident intention of the Legislature by this short period as a limitation for the widow’s dissent, was to prevent disturbances in the family of the testator— that while the recollection of the husband and father was still green in the memory of the wife and children, they should each take their portion of the estate allotted to them by the testator, and that all cause of difficulty be thereby avoided.
    But, I apprehend, it never was contemplated by the Legislature, that a controversy would arise between the creditors and the widow of the testator — the law being then and now well settled, that the widow is entitled to dower in the lands of her husband, as against creditors, under any state of circumstances, however short the testator’s estate might fall of paying his debts.
    To give any other construction to the statute, than the one contended for by us, would be to place widows in a most perilous situation. The creditors would have it completely in their power, to take from her every vestige of property, as will be done in this case, if the defendants succeed in resisting this application for dower. The widow, under the custom of the country, and the law of the State, could have no means of ascertaining the extent of the indebtedness of her deceased husband under two years, as that is the time limited for the presentation of claims against estates. She has a legacy given her by her husband in personal property, perhaps the same she brought with her when she married him, (as was the case in this instance;) she is satisfied with this; the Creditors knowing that this bequest of personal property cannot avail her, and seeing at the same time that it will take the whole estate to pay their debts; knowing also, that if they present their debts immediately, and thereby show that the estate- will b¿ insolvent, that the widow would, as her last hope, dissent from the will and take dower — withhold their claims until after the expiration of six months, and take the entire estate. This could not have been the intention of the Legislature. This cannot, as it-.seems to us, be the fair construction, of the act; but, as to creditox-s, under such a state of the case, she must stand in the. same relation-to the estate, as though the testator had made no will. In this view of the case,we think we are. fully sustained by the cases of Smart and wife ys. Waterhouse, 10, Yerg.:94; Reid vs. Campbell, Meigs 378; Craven vs. Craven, 2 Dev. 338.
    
      Caruthers, for the defendants.
    The complainant did not dissent to the will in the six months allowed by the act of 1784, c. 22, s. 8. She now claims to do so, upon the ground that she was deceived as to the condition of her husband; that she was satisfied with the-provision made for her in the will, but it has- so turned out that the personal property has been swépt by debts, and proceedings are now pending under the.act for ihe 'distribution of estates of insolvent debtors, to sell, the land. - .
    It is insisted, that, having permitted the time allowed by the statute to make her election to risk the will or take under the law, to pass, without entering-her dissent, she cannot now do it. The Legislature having made no.exceptions, the court can make none. — Mar. & Yerg. 325; 1 Murphy, 115. Courts of equity are as- much bound by statute as courts of law. — 4 Wheaton, 456.
    But, it is said that the court has,made .one exception, in the case of Smart and wife vs. Waterhouse, .10 Yérg. 94. The court decided that case upon the principle that, where an act has been prevented from being done, by fraud, it will be considered in, equity as having been done. So, when they had found the fact to be that she had made up her mind to dissent, and was prevented from carrying out her mind on record, by the fraud and deceit of the executors, then, there was- no' exception to make to the act, but in the eye of a chancellor the dissent was on record, and the statute in all things complied with.
    But, in this case, there is no proof, nor is it pretended that she, at any time during the six months, had any thought of electing to discard the provisions of the will. Sl/e says, if she had known the true condition of the-estate she would have dissented. If this exception to the operation of the statute be allowed, then it will never operate, when it turns out that the widow has made an unfortunate election. When she allowed the six months to pass, there being no fraud practiced upon her, she made up her mind to take the chances and cannot be allowed to change her purpose. Fraud out of the way, the rights of creditors and all parties were fixed, after the six months had expired.
    Meigs, for the complainant.
    No case can be adduced, where a statute should be more strictly construed in favor of a common law right, than one depriving the widow of the ancient and cherished right of •dower. At common law, the widow was entitled to dower of all the lands and tenements whereof the husband was seized at any time during the eoveture; and this legal right was secured to her against all alienees and creditors of the husband. By enacting, that the wife shall have one third of the lands,&c. of which the husband died seized or possessed, the widow’s claim to dower is made subordinate to that of any bona fide purchaser from him. But, in all other respects, the widow’s right is upon the same footing as before the act of 1784, in reference to the land of which the husband died seized. The right relates to the marriage, and the widow is a purchaser for a valuable consideration, not to be disturbed in law or equity. The heir takes the land subject to this incumbrance; it is a title superior, because prior to his. Creditors of the husband may reach the land descended to the heir, in the manner pointed out by the act of 1784, c. 11; but they take the land, as the heir took it, encumbered with the widow’s dower. — Cobbs vs. Young, 4 Yerg. 218, 225, 229. This court has decided, that, when the land has been devised to the heir, he cannot defeat this incumbrance by persuading the widow not to dissent to a testamentary provision in lieu of it, by falsely representing the testamentary provision to be more valuable than the dower. That is — if the widow omit to enter her dissent within the limited time, from a mistake as to the relative value of the dower and the substitute for it, the right to dower still subsists, if her mistake was superin-duced by the fraudulent representation of the heir. — Smart vs. Waterhouse, 10 Yerg. 94, 98, 105. Now, can her mistake, so superinduced, be practically distinguished from her mistake produced by error, or innocent miscalculation of the executor as to the debts and solvency of the estate? Before our act of 1784, widows were protected in equity against an election actively made, if by mistake, of a testamentary provision instead of dower. — 4 Dessau. 274. And they were not required to make such election until all the circumstances were known, and the condition and value of the substituted fund clearly ascertained. — Hall vs. Hall, 2 McCord’s Ch. R. 280; 1 Roper on Property, 581,585; Story Eq. s. 1098. Now, does the act of 1784 hasten the election — compel the widow to choose before the elements of a choice can exist— before it is expected by the law, that even the personal representative can know the condition of the estate, much less the widow; and if, under all these adverse circumstances, she mistake the value of the substitute for her legal provision, does it mean to take from the courts of equity their acknowledged power, to set up the legal provision instead of the substitute? So to construe this statute, would be to make it overthrow one of the most beneficent powers of the court of chancery — and to be a most alarming invasion upon its well established jurisdiction. In Kidney vs. Coussmaker, 12 Yes. 136, the widow had released her dower in consideration of a testamentary provision; but when it became necessary to resort to the property contained in that provision, to pay her husband’s debts, Sir W. Grant said, that she was not bound by her election, because it was made under a mistaken impression, that the creditors were not to make any claim upon those estates, and she must be let into her legal rights. — 12 Ves. 153. Can the necessity imposed by the statute of making her election in six months, (which, before it, need not have been made till the condition and value of the substitute for dower had been fully investigated and understood; and even then, if made by mistake, might be relieved against,) deprive the widow of this relief? So far from this necessity being a reason to deprive her of equitable aid, it would seem to be rather a motive to redouble the vigilance of the court of chancery in her behalf. In the case of Smart vs. Water-house, this court had such a case as the present in view, and expressly declined deciding it, remarking, that if a failure to dissent in six months was a positive bar, not relievable in equity, the provision was not only harsh, but wholly at war with the liberal spirit manifested in the preamble as well as in the body of the act. — See 10 Yerg. 103.
    There is another view of this question, which is perhaps entitled to great weight. Dower is an incumbrance upon the husband’s estate; the widow is a creditor with a special lien. Now, when the husband makes a provision in lieu of this incumbrance, to extinguish this lien, must it not be a real provision? Will it do to say, that the lien or incumbrance is extinguished by an illusory provision? Can the provision in the will, and the widow’s acceptance of it, be stronger, or, in fact, a hundredth part as strong, as the case stated by Story Eq. sec. 1249, where a widow was relieved against her free acceptance of a jointure in bar and satisfaction of dower, because the estates covenanted to be conveyed were not in fact conveyed? Property which the law devotes to the satisfaction of the testator's debts, his will to the contrary, notwithstanding, is in a condition not distinguishable from that of property which he covenants to settle, but dies without settling. In the cases mentioned by Judge Story, the widow was restored to her dower, because the substitute covenanted for had not in fact been made, although she had expressly accepted the intended provision. So, here, the widow accepted the intended provision, but it was not made, because her husband, under the circumstances, had no legal power to make it. It does seem to me, that the cases are substantially identical, and that the dower is not gone.
   Reese, J.

delivered the opinion of 'the court.

The husband of the complainant made and published his last will and testament, of which, since.his death, due probate has taken place, and the defendant, Douglas, appointed executor therein, has taken upon himself the burthen of that office. In this will, the testator made express provision for his wife, the complainant, which was satisfactory to her, and she did not, therefore, within six months of the probate of the will, as authorized by the act of 1784, dissent from the same.

The executor, as the bill alleges, during the said period of six months, honestly believed, and so represented, that the assets in his hands would be adequate to the payment of the debts, but it has since turned out that the amount of the debts for which the estate will be held liable, is much greater than was expected, and a bill has been filed suggesting the insolvency of said estate, and the widow is in danger of losing the provision in her favor, contained in the bequests of the will. Under these circumstances, and for this reason, she has brought this bill, the object of which is to permit her to take her dower in the said estate, as if she had dissented from the will in due time.

And the question is, has she such a right?

It may be remarked, that the case is entirely free from all fraud on the part of the testator, the executor, the devisees, or creditors, and does not, therefore, come within the scope of the principle, decided in the case of Smart and wife vs. Waterhouse. It presents the simple question of a widow, for whom a satisfactory provision has been made by the terms of a will, omitting to dissent from the same, because ignorant, during the six months, of the true amount of the liabilities of the estate. The argument is, that she supposed herself about to receive a substantial, and not a nominal and delusive provision, under the will, and, therefore, only did not dissent. The answer to this is, the statute gives her six months to examine, to enquire, to consult friends; and if, without fraud and imposition she elects not to dissent, there is no principle upon which, against the express letter and obvious policy of the statute, she can claim to be thrown back upon her dower right. She may, in every instance, if she will, be upon safe ground, and dissent from the will, and so have her dower, free from debts resting upon the estate; but, if tempted by the apparently greater provision made for her, on the face of the will, she abandons this safe ground, and declines to dissent, she must not, if the experiment turn out badly, expect the court to replace her upon her dower right. We know not upon what safe principle this could be done, and if the statute be departed from, at what indefinite period, the widow might resume her claim to dower. If bank stock be given her, the bank may become broken1 — if debts be bequeathed, the debtors may become insolvent; slaves may die; steamboats explode; an ample provision in personal property may be swept away, because the testator, surety to a large amount for very wealthy men, may have forgotten the matter; but misfortunes in trade, or the hazard of the gaming table, may reduce them to beggary, and throw the liability solely upon the estate; shall the widow then come back and take her dower? These are contingencies to be thought of by her, in determining whether the provisions of the will be satisfactory to her, and before she steps off from the safe and solid ground of her dower, to take under the will. The case bears no analogy to some of the cases of election at common law; that is said to be a “gentle nursing mother,” but the statute is stern and inflexible and exacts obedience. The statute has existed for more than sixty years; and there has been no case in North Carolina or Tennessee, which sanctions the principle of construction in this instance contended for. To yield to the present application, would be a virtual repeal and abrogation of the statute. It is better that a few widows should be permitted to choose ignorantly and injudiciously, and to their loss, than that we should have no rule.

The bill must be dismissed, but without costs, and this is a reversal of the chancellor’s decree.  