
    McGRATH vs. McGRATH'S ADMR'S.
    [FINAL SETTLEMENT AND DISTRIBUTION OF DECEDENT’S ESTATE.]
    
      1. Widow?s dissent from JwshancPs md; ivhat is sufficient- — Where a •widow executes in writing her dissent from her husband’s will, and hands it to a friend, with instructions to filo it in the office of iise probate judge, and then dies; if the dissent is Sled by the person to. whom it was entrusted, after her death, but within th© period prescribed by the statute, (Code, § 1&10,) this is a sufScieat' compliance ' with the requisitions of the statute.
    Appeal from the Probate Court of Macon.
    In the matter of the final settlement and distribution of the estate of Boger McGrath, deceased, by David Clopton, his executor. E. B. Zachery and Samuel Cooper, as admin istrators of Mrs. Nancy McGrath, deceased, who was the widow of said Boger McGrath, appeared on the settlement, alleged that their intestate had dissented from her husband’s will within the time prescribed by law, and claimed the share of the estate to which she would have been entitled if her husband had died intestate. Their claim was resist ed by Dennis McGrath, one of the legatees under the will of Boger McGrath; and an issue was thereupon formed between them. To prove a dissent from the testator’s will by their intestate, the administrators introduced one Mitchell asa witness, who testified, “that said Nancy McGrath, on the 19th August, 1858, at his house, and in his presence, signed a paper, purporting to be a dissent from said last will and testament, and gave it to him,.with instructions to file it in the office of the probate judge of said county; that he called at the office of the probate judge, between sunset and dark of tbe same day, to Ale said paper, but found the office closed ; that said Nancy died suddenly on the 2lst August,1858, and thht said paper- was- filed-in said office on Monday thereafter, which 'Was-. the:'23d day of August, 1858. It was admitted, that said Roger Mc-Grath died in April, 1858; that said Nancy McGrath was his widow, and that they had no children. " This being all tbe evidence, the probate court decided, ■ that the dissent .was valid”-; to which said Dennis McGrath excepted, and which he now assigns as error.
    R. F. Ligon, for appellant.
    Graham, Mayes Abercrombie, contra.
   R. W. WALKER, J.

Sections 1609 and 1610 of the Code are in the following words:

“ § 1609. The widow may, in all eases, dissent from the will of her deceased husband, and, in’the place of the provision made for her by sucb will, take her dower in the lands, and of the personal estate such portion as she would have been entitled to in case of intestacy.
“ § 1610. Such dissent must be made in writing, and deposited, within one year from the probate of the will, with the judge of probate of the county in which the will is probated ; and an entry thereof, specifying the day on which the dissent was made, made of reeord."

Confining our decision to the precise facts of this case, we hold, that they show a substantial compliance with the foregoing provisions of the Code. Tbe widow executed and published her dissent in writing, and manifested her purpose to have it deposited with the probate judge, by handing it to a friend, with instructions to file it. Where a, widow, who has executed her dissent' in writing, manifests, by some unmistakable act, , her purpose to have it deposited with the,proper officer; within the time prescribed by law, and actually, sets .on foot measures to have it done, and then dies .before the'deposit is made, without having, prior to her death, indicated im-any way a desire to recall or revoke her dissent.; and the dissent is, after her death, but within twelve months after the probate of the will, deposited with the probate judge,, we think that the requisitions of the statute are satisfied. If the dissent had been simply .found among the papers*, of,¡the widow after, her death, and then*deposited ¡by her representative, orbysome third person; the question* presented, would have’been* very different. It will be time enough, to* decide that question when it arises.. For the present, we limit our decision to the facts of the case before us..

Decree affirmed.  