
    Willis Sanders, Executor of Jeremiah Sanders, vs. Lucy Sanders.
    While the probate of a will, made in vacation, is not valid, inasmuch as the power of the judge out of court is confined to receiving the will exhibited for probate, and does not extend to the probate itself; yet if a will, making provision for the widow of the testator, be admitted to probate, and letters testamentary be granted in vacation ; and all parties acquiesce in the probate as a valid one; and the executor proceed with the administration of the estate for a period of seven years, the widow during that period receiving her allowance under the will; the latter will be held, by her long acquiescence in the probate, and her acceptance of the provision in her behalf for so long a period under the will, to have waived any objection she might originally have made to the probate, and to be bound by the terms of the will.
    On appeal from the probate court of Kemper county; Hon. James L. Bohannon, judge.
    The facts will be found sufficiently stated in the opinion.
    
      Harris and Harrison, for appellant.
    1. After evidence of acceptance, can the widow renounce the will?
    If the widow enters on the property given by the will, and enjoys it, she is thereby barred of her dower. 7 Cowen, 288.
    A devise to a wife bars dower, under our statute, unless it be otherwise expressed in the will. How. &• Hutch. 350; Chilton on Probates, 397.
    Her election must be made according to the statute; she cannot take, both under the will and under her dowry. Chilton, 397, § 47; How. & Hutch. 351, 360.
    Her election may be inferred from receiving and enjoying the property devised. 7 Dana, R. 6; Chilton on Probates, 394; 2 Yeates, 302; Duncan v. Duncan, 10 Johns. 30.
    
      The neglect of the executor to comply with his duty, after she has received the provision for several years from him under the will, does not entitle the appellee to prosecute for dower. See Kennedy v. Mills, 13 Wend. 556; the concluding paragraph of Justice Savage’s opinion.
    2. As to the power of the executor before probate.
    All acts which an executor could do in England before probate, he may do here, and they are considered valid for the present, and irrevocably so when he qualifies. 1 Tucker’s Lect. 409; 4 Munf. 201.
    An executor may assent to a legacy before obtaining letters, and such assent will vest the legacy in the legatee. Toll. 311; lb. 44 - 46; Chilton, 190, 191, §23; 2 Lomax on Ex’rs, 132.
    What shall constitute such assent? See Toll, on Ex’rs, 307; Chilton, 190; 2 Lomax, 130, 131, § 7.
    As to the power of an executor at common law, see Chilton, 222-224; before probate, Toll. 44; 1 Lomax, 204; 2 lb. 128.
    An executor may confirm acts done before probate, by subsequently probating the will and giving bond. 4 Munf. 198, 199, 201; 1 Tucker’s Lect. 409.
    If an executor de son tort take out letters of administration, it makes legal, acts which were before tortious. 15 Mass. 322-325; 8 Johns. 126 ; 9 Mass. 75; 1 Lomax on Ex’rs, 205.
    Potter, on same side,
    Reviewed the proof at length, to show that the widow had accepted and claimed under the will, and therefore could not afterwards renounce.
    
      J, G. Baldwin, for appellee.
    The dower is resisted, on the ground that the widow, shortly after the death of the testator, went upon, and elected to take, the provisions of the will, and enjoyed the same for several years, with the assent of the executor, though before his qualification as such.
    I. We contend that the statute, How. & Hutch. Dig. 350, § 37, gives to the widow six months, “after the probate or anthentication of the will,” within which to elect. That an express election before the expiration of that time might be revoked by her; but, at all events, that no election should be implied from acts done, or mere expressions of satisfaction made, before that time.
    1. That the statute limiting the time of applying for dower, is a statute of limitations, the object being a speedy settlement of estates; therefore, that nothing done before probate would conclude the widow; as the estate, after probate, would require time for settlement beyond the six months, e. g., for presentation of claims, distribution, settlement, &c. 12 Pick. 146.
    2. That the object of the statute was to exclude questions of election which had vexed the English jurisprudence. See Craven v. Craven, 2 Dev. Eq. R. 338; and approved, 10 Ala. N. S. 995. “And to remove all dispute as to the fact of election, the legislature declared,” &c. See also 7 How. 665, where the statute is construed to limit the dowress to the precise period of six months, on the ground, that the legislature has regulated the matter, and its language is to be the guide.
    3. The widow, having by law and the contract of marriage, an estate in the husband’s lands, the legislature have said in what way that estate shall be divestéd; and the statute, sec. 37, has prescribed a particular mode for cases like this — the failure to renounce the will within six months after probate of the will; this has not been shown, and the estate remains.
    II. But if the court think otherwise, then the widow is concluded by the rules of the common law or of equity, if at all. By these; 1. There must have been an election by her to take the provision of the will in lieu of dower; 2. The election must have been made when all the circumstances were known, and the condition and the value of the funds clearly ascertained; 3. The election must not have been made under mistake.
    1. In the first place, there must have been an election; by this, is meant a choosing between the provision in the will and dower; in order to this choosing, the widow must have known that she had choice between the two funds or provisions ; this is not shown. Until after six months from the illegal and void probate of the will, she had a right (see How. & Hutch. Dig. 353,) to remain on, and in possession of, the plantation, houses, &c.; and no case can be found where, if she had no such right, the remaining there would be such an act of election, or other act, as to preclude her dower. After that time, she supposed she could do no better, and knew of no alternative but taking what the executor chose to give her, until advised of her legal rights in 1846, or 1847. See deposition of A. C. Griggs.
    The expressions of satisfaction with the will, testified to by the witness Barnes, show no election; they were qualified by expressions of dissatisfaction with the executor and his conduct; in fact, they amounted to dissatisfaction with the will and provisions for her benefit, the particular cause of the will’s being unsatisfactory being, that W. Sanders was the executor, and acted in the matters of his trust contrary to her wishes, &c. But it is immaterial for what cause, or whether from any cause, she did not choose to accept the provision in the will in lieu of dower, so she did refuse.
    2. In the second place, the election, if made, does not bind her, because “ the circumstances ” of the estate, the condition of the funds and the value of them, were not known. See Barnes’ and Griggs’ depositions. They show that a debt of $27,000 was claimed of the estate, and suit was, and is still, pending in the chancery court. So far from the fund being “ clearly ascertained,” it was not and could not be ascertained at all. See on this point, 2 Story, Eq. § 1098; 2 McCord, Ch. R. 280; also 1 Yesey, 335, note. And that no person can be held to elect without a clear knowledge of both funds. 2 Yes. jr. 371. Here there was not, so far as appears, a clear knowledge of either. If made without knowledge, the widow may revoke the election though she has received the full provision in the will. 1 Yes. jr. 335, and note; 1 Bro. C. C. 445; 2 Story, Eq. 358, 359, § 1097, 1098.
    It must be shown by the side setting it up, that the election was made with knowledge. 7 Johns. 477.
    The widow is entitled to decree in chancery settling the funds, before election can be compelled. 4 Kent, 56; Clancy on Hus. & Wife, 249. That the value of the provision in the will was not known, may be seen from Sanders’ not knowing it. He considered the widow “a boarder,” &c., in her own house. See Mrs. Jones’ and Griggs’ depositions.
    3. In the third place, the election, if made, may be set aside because made by mistake; the election is only inferred from the remaining on the premises and deriving support from the plantation or the executor; the deposition of Griggs shows that the widow was dissatisfied, and sought to “ break the will,” as the witness says, about twelve or eighteen months before the spring of 1843; but was told by counsel it was too late, as the will had been probated, &c. She remained then on the place after this time, because of the mistake occasioned by the illegal act of the executor in probating the will, &c., as she supposed legally, but really, as it turned out, not so; in consequence of this mistake, founded upon the conduct of the executor, she did not take steps earlier to get her dower, but continued on the plantation.
    That an election under mistake is void, see 4 Desau. 274.
    III. The widow never received the provision in the will for her. She never agreed to take, nor did the executor ever agree to let her have it; but, at most, only a part, and that only a small part, and, of that small part, she only received a portion. Sanders only allowed her to be a “boarder” in her own house; (see Mrs. Jones’ deposition, also A. C. Griggs’;) he only gave her her victuals and clothes; that this was not what the will and the testator meant, see 2 Sandf. Ch. R. 91; also Hawley v. James, 5 Paige, 457.
    Now no case can be found where an unexecuted agreement to take part of a legacy in lieu of dower barred it; or where receiving from the executor an assent to get part of the provision, and getting it, barred the dower; that would not be an election between the provision and the dower; even if made, it shows on its face, that it is not made “ with knowledge of both funds.” No one would take part when he could get all, if he knew it.
    IY. That the widow has never received more than she was entitled to by law, independent of the will, see How. & Hutch, Dig. 353; 6 Monroe, 562; 7 Johns. 246; 11 Ala. 32, and authorities. Besides in the decree for dower, she is to be held accountable for what she got, a requisition which is, by the way, of very doubtful authority in the court to make, but of which the plaintiff in error cannot complain.
    
      Guión and Baine, on same side,
    Insisted that the first probate was void; there had never been a valid probate until the last one; and the widow had the right which she exercised of renouncing the will within six months after that probate. This right was expressly given by statute.
   Mr. Justice Clayton

delivered the opinion of the court.

In 1840, Jeremiah Sanders, of Kemper county, died, leaving a last will and testament. This will was admitted to probate, and letters testamentary were granted, by the judge of probate in vacation, to Willis Sanders, the executor therein named, in November, 1840. The executor proceeded with the execution of the will, as if the probate had been rightfully made, until 1847. At the August term of the probate court, 1847, upon the application of the widow of said Sanders the testator, the probate so made was set aside, a re-probate was had, and another grant of letters testamentary. At least this is the state of facts, which the record appears to disclose, but it is made out very imperfectly and inartificially. Immediately after this re-probate, the widow renounced the provision made for her by the will, and filed a petition in which she claimed her dower and distributive share in the estate. No other person but the widow complained, and the whole object of the latter proceedings, seems to have been to enable her take this step. The probate court declared the first probate void, and made a decree in favor of the widow, and in conformity with the prayer of her petition.

It is certain that the original probate of this will in vacation was not valid. The power of the judge, out of court, was confined to receiving the will exhibited for probate, and did not extend to the probate itself. How. & Hutch. 404. But all parties interested acquiesced in the proceeding, as if it were legal and valid. It is in proof, that as early as the year 1843, the widow became dissatisfied with the conduct of the executor, and consulted counsel to ascertain if she could break the will. For a time she expressed herself satisfied with the will, and received a support under it. This acquiescence continued for nearly seven years. Five years are allowed by statute, to persons interested in a will to contest its validity. How. & Hutch. 389; Hutch. 652. There is no express limitation as to the time, within which a probate may be contested, but we think an acquiescence of five years should bind all parties, who are under no disabilities ; otherwise they would have a greater latitude in contesting the probate, than the validity of the will. In this case, too, the acquiescence was accompanied with expressions of satisfaction with the will, and with acceptance of its provisions for a time.

Six months is the period allowed a widow, after the authentication or probate of a will, within which to renounce its provisions. The renunciation in this instance was more than six years after the first probate. True, the widow was not bound to elect until the authentication. But there was an attempted probate, deemed at the time to be legal. All parties acquiesced under it for years. Time the great destroyer, is likewise potent in aiding imperfect acts. Vigilance is necessary to secure the assistance of the law. It would be of dangerous consequence now to declare the whole proceedings under this probate void. Rights may have grown up under it, which have been perfected under the statute of limitations. We think the party is precluded by her long acquiescence.

The judgment of the probate court is therefore reversed, and the petition dismissed.  