
    Sarah Collins v. Samuel Melton, Executor.
    l.LAST "WILL AND TESTAMENT: RENUNCIATION AND ELECTION OE WIDOW: EFFECT of. — The failure of the widow to renounce the will within the period prescribed by the statute, Rev. Code 468, article 169, places her in the condition she would have been in if the statute had never been passed, and amounts to an election to take under the will.
    2. Last will and testament: election and renunciation op widow: mistake: dower. — The widow is not barred of her dower by her election to take under the will, if her election was made' under' a mistake, and she subsequently failed to obtain the benefit of the provisions made by the will in her behalf.
    3. Same : case in judgment. — The will of Collins gave to his wife a life estate in six slaves and a section of land, and a fee-simple interest in certain personal property. The estate was amply solvent at death of Collins, and subsequently became insolvent by reason of the war, and emancipation of the slaves. The executor petitioned to sell the lands devised to the wife of Collins, for the payment of debts. She answered, claiming dower, or the land specifically devised. Held— That she was entitled to dower, and should account to the estate for the personal property, excepting slaves, which she had received.
    Appeal from tbe Probate Court of Madison county. lion. "William S. Bailey, judge.
    Appellee as tbe executor of Starkey Collins, deceased, filed bis petition in tbe Probate Court of Madison county at the September Term, 1865, for a sale of all tbe lands of his testator, and alleging that tbe personal property was insufficient to pay the debts of tbe estate. Appellant, as tbe widow of Starkey Collins, was made a party to the petition, and upon a return of citation, duly executed, appeared and answered. Tbe answer states, that Starkey Collins made bis will on tbe 8th of July, 1859, died soon after, and tbe will was duly admitted to probate. That said will gave to appellant an estate for life in six slaves and a section of land, and a fee-simple interest in certain other personal property. That she did not renounce the benefit of the provisions of said will within six months, continued to reside on tbe lands which bad been devised to her (the dwelling-house of testator being situated on said lands), and is content to abide by the devise in lieu of dower, if not - disturbed in the possession thereof. Admits the insolvency of the estate, caused by the war, and the emancipation of the slaves. That it would be unjust to sell the lands devised to her, and at the same time to deprive her of dower in the general landed estate of her deceased husband. Makes her answer a cross-bill, and asks for dower in the general landed estate of her deceased husband; describes the lands, being in all twenty-two hundred and thirty acres, and prayed that the court would refuse to decree a sale of the section of land which was devised to her for life; or if the lands devised to her should be decreed to be sold, that the court would grant her dower, and asks for the appointment of commissioners to allot the same.
    She further stated, that she was willing to give back to the estate all the personal property, absolutely bequeathed to her by the will; that the slaves she could .not restore, if required to do so, on account of their recent emancipation. That, if required ■to return the personal property and to account for that which she had converted into other property, she should be allowed an abatement to the extent of the property exempt from execution and one year’s allowance of provisions.
    The court decreed that appellant was barred of any right of dower in the general landed estate of Starkey Collins, by reason of her failure to renounce, under the will, within six months; that she cannot hold the lands specifically devised to her, because they are required to pay debts; that all the lands should be sold, and the cross-bill and petition for dower dismissed.
    From this decree an appeal was taken.
    
      A. P. Hill, for appellant,
    cited Snellgrove v. Snellgrove, 4 Dessausure’s Equity R. 274-300; Rev. Code, 469, article 170.
    
      J. W. Downs, for appellee,
    cited Rev. Code, 468, article 159.
   HaNdy, C. J.,

delivered the opinion of the court.

The appellee, as executor of Starkey Collins, filed his petition in the Court of Probates, for the sale of all the lands of the testator for the payment of his debts, alleging that the personal estate was insufficient. The appellant, the widow, answered the petition, and stated that the testator died in the fall of 1859, and by his will bequeathed to her a life estate in six slaves, and an absolute title to certain other personal property, and a life estate in six hundred and forty aci’es of land; that she did not renounce the will within six months, and is content with its provisions, if not disturbed in tbe possession of tbe property ; bnt tbe estate bas since become insolvent, by reason of tbe war and of tbe emancipation of tbe slaves. Tbe answer is made a cross-petition, and prays either that tbe court will refuse to order tbe sale of tbe lands devised to ber, or, if ordered to be sold, that sbe may be allotted ber dower in tbe lands generally of ber busband; and states that sbe is willing to give back to tbe estate sucb of tbe personal property as was left to ber in tbe will and is now in ber possession, and to make up tbe deficit of sucb of it as sbe bas parted with, except tbe slaves, all of wbicb bave been emancipated. On tbe bearing, tbe court, being of opinion that sbe was barred of ber claim of dower by not having renounced tbe will, decreed all tbe lands to be sold for tbe payment of tbe debts of tbe estate. It appears, by tbe record, that it was shown on tbe bearing, that tbe appellant was tbe widow of tbe testator; that be died in 1859, seized of tbe lands devised to her in tbe will, which embraced tbe dwelling-house and outhouses attached to tbe residence of tbe testator at bis death; and that tbe estate was amply sufficient to pay its debts, but was rendered insolvent by tbe war. From this decree, tbe widow took this appeal.

Tbe sole question presented is, whether tbe widow is barred of ber dower by having failed to renounce tbe benefits of tbe will as required by tbe statute. Rev. Code. 468, article 169.

By tbe provisions of that statute, tbe widow, by ber failure to renounce the will within tbe time prescribed, is placed in tbe same condition that sbe would bave been in, by tbe general rules of law, if the statute bad never been enacted, and if sbe bad elected to accept tbe devise of tbe will in lieu of ber dower. Her failure to renounce amounts, under tbe statute, to an election to take under tbe will, but to no more. Testing ber rights, therefore, by tbe principles that would bave governed them, in case of a positive election by ber, in tbe absence of tbe statute, sbe would not bave been bound by sucb election, if it subsequently turned out that it was made under a mistake, and that sbe failed to obtain by tbe will tbe benefit of' tbe provisions made in ber behalf. 2. Story’s Eq. Ju., section 1098; Kidney

v. Coussmaker, 12 Ves. 136; Wake v. Wake, 1 Ib. 335; Snelgrove v. Snelgrove, 4 Dessaus. 296, 300.

Here it is plain, that the failure to renounce was under the belief, then to all appearance well founded, that the estate was amply sufficient to pay the debts, and that she would enjoy the full benefit of the testator’s bounty under the will; and that she has lost this benefit without any laches on her part. And, on general principles of equity, she would be entitled to repudiate her election, and to be restored to her rights apart from the will.

This equitable rule is clearly recognized by our statute, Rev. Code, 469, article 170, in these words, “But if, in effect, nothing shall pass by such devise, she shall not be barred thereby, whether she shall or shall not renounce as aforesaid; it being the intent of this act, and consonant to justice, that a widow accepting or abiding by a devise in lieu of her legal right, shall be considered as a purchaser for a fair consideration.”

When, therefore, without fault on her part, she obtains nothing by the devise, her right of dower is not concluded by her acceptance of the will; and she will be entitled to her dower in her husband’s real estate.

It does not fully appear, by the record, whether any part of the personalty of the estate has been allotted to her as her portion of the estate. If there has been such property allotted to her, she is required to restore it to the estate; and she is also chargeable with any of the property which has come to her possession, and which she has converted to her own use, whether the same has been allotted to her or not, in due form of law.

It follows, that the decree must be reversed, and the cause remanded to the court below, to be proceeded with according to the principles herein stated.  