#### Alletta A. Akin, App’lt, *v.*Sarah A. Kellogg *et al.,*Resp’ts.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

1. Dower—Election by widow.

Where a widow does not, as provided by statute, within a year after her husband’s death, do some act evidencing a renunciation of a provision in a will in lieu of dower in favor of what the law will admeasure to her, such conduct will be deemed an acceptance of the husband’s provision for her, and equity will not interfere to relieve her because she, through reliance upon the statement of others, remained inactive until the year had expired.

2. Same.

Ignorance of the law requiring the widow to so elect is no excuse, and expressions of opinion by interested persons cannot, when subsequently shown to have been groundless or false, be regarded as misrepresentations.

Appeal from supreme court, general term, third department, affirming judgment rendered at circuit in favor of defendant dismissing complaint upon the merits.

*Matthew Hale*and *Walter IS. Ward,*for app’lt; *L. Laflin Kellogg,*for resp’ts.

1

 Affirming 16 N. Y. State Rep., 428.

Gray, J.

The complainant is the widow of Benjamin Akin, deceased, who in his will made certain provisions for her out of his estate, which were expressed to be in lieu of her dower right They gave to her one-third of the personalty absolutely and the net income of one-third of the real estate, which was vested in a trustee for that purpose during her life. She did not commence any proceedings, or take any step towards a recovery or assignment of her dower in the real estate, within the year succeeding the testator’s death, and this action was commenced by her some three years afterwards. Through it she seeks to obtain a decree relieving her “from the penalty imposed by statute for not having, within one year after the death of her husband, entered on the land to be assigned to her for her dower, or commenced proceedings for the recovery or assignment thereof,” and permitting her to make her election and to renounce the testamentary provision. The allegations in the complaint are that plaintiff was ignorant •of the nature and extent of the estate of said Benjamin Akin at the time of his death, and for a long time thereafter, and until his executor filed his accounts and asked for a final settlement ; that Asa B. Kellogg, the husband of the defendant, Sarah A Kellogg, had been for many years prior to the death of the said Benjamin Akin, the agent and confidential adviser of said Benjamin Akin, and had transacted all his business for him, and *562had been familiar with his affairs and property of the said Benjamin Akin ; that after the death of the said Benjamin Akin, this plaintiff had great confidence in the said Asa B. Kellogg, and put entire faith in his representations ; that the said Asa B. Kellogg was also the agent of his wife ; that shortly after the death of the said Benjamin Akin, he stated and represented to plaintiff that it would be more advantageous to her to accept the provisions of the will than to claim her dower in the real estate left by him. Snch representations were made to plaintiff in the presence of his wife, acting as her agent and for her benefit. She avers that the statements were made for the benefit of Mrs. Kellogg, the owner of the lands out of which the dower is sought, and that by them she was induced to omit and neglect to take the steps towards a renunciation of the testamentary provisions and towards securing her dower interest in the real estate, which she would have taken had she not relied upon them, or had she been informed of the actual condition of the estate.

I think, even if we assume the truth of these charges of her complaint, that her right to relief in equity is most doubtful. She does not ask for relief against some positive act of her commission, procured by the fraud of another. She asks for it because, through reliance upon the statements of others, she remained inactive, and thus suffered the period of time to expire within which she should have been diligent to ascertain and to secure her rights.

How equity does not interfere to grant relief when one has failed in diligence, or in the performance of an obvious and imperative duty imposed by law. It does not rise above the common law and the statute. Its office is not to relieve against a hardship, merely as such; nor should its interference be moved by mere opinion in the judge. I do not think the equitable powers of a court can be properly invoked to interfere with the established rules of law ; though the same result may be often reached by an injured party, in preventing another from benefiting by an act or contract procured by his artifice or deceit. The theory of estoppel might be available -in some such case.

Here the complainant was apprised by the will of an option offered to her with reference to her future property rights, and it became at once her legal duty to be diligent and careful in acting, if she proposed to take what the law assured to her, in place of-what the will gave. The Revised Statutes have but followed the common law in their provision for an election by the widow be tween a testamentary gift in lieu of dower and the dower right itself. But they have further provided that the widow shall be deemed to have elected her devise, or pecuniary provision, unless within one year after the death of her husband she shall enter upon the lands to be assigned to her for her dower, or commence proceedings for the recovery or assignment thereof. Where, then, a provision is, by the express terms of the will, made in lieu of dower, the widow is obliged to make an election whether to accept, or to renounce it for what the law gives to her. She cannot have both and she is at once chargeable with the *563duty of informimg herself, so as to make her election. And that she shall have a certain period of time for that purpose, the legislature has provided what was deemed a reasonable season of •delay; and its enactment that the election must be made within one year has the same force as a statute of limitation upon the widow’s rights. The object of the legislature was to compel the widow to make her election a reasonable time after the death of her husband. *Hawley*v. James, 5 Paige, 446. The right to dower out of the estate is a strict legal right, of which the widow cannot be deprived save by her own act, in waiving it, or in accepting some other and inconsistent provision. Nor does the .statute attempt to deprive her of it; but it provides that where ■something else is given to her in lieu of it, if then she does not do some act evidencing a renunciation of the gift, in favor of what the law will admeasure to her, within the period of a year after the husband’s death, such conduct shall be deemed an acceptance of the husband’s provision for her. This being then a statute of limitation upon the widow’s right to enforce her claim to dower, the policy of the law in such a case, as in all cases involving the operation of such a statute upon a person’s rights, or demands, forbids the granting of relief against its provisions. The statute has acted and the right has gone.

Nor is this the ordinary case of election where knowledge is necessary in order to make it validly, and hence, where there was a mistake of facts, or a misconception as to rights, relief in equity is allowable. Here the statue does not offer or create the election. That existed already. The office of the statute was to impose a limitation of time upon the exercise of the power to elect, and to bar any subsequent exercise of it. But a phase of this case is presented as to a possible estoppel upon Mrs. Kellogg, through the acts alleged. A party may be estopped from taking advantage of the legal helplessness of another, by reason of his conduct, or representations, having brought about such a condition. Is that the case here ? Assuming that the allegations of the complaint might be deemed, with some latitude of judgment, to make out such an apparent estoppel upon Mrs. Kellogg, do the proofs make out such a case ? I am unable to agree in such a view.

The testator died in 1881. The lands in question had been conveyed to his daughter, Mrs. Kellogg, for a nominal consideration in 1877. Testator and his wife had lived upon them much of the time. Five days after his death the deed of conveyance was recorded. The statements, which the plaintiff refers to as having been made by Mrs. Kellogg, can scarcely be deemed such as would bind Mrs. Kellogg, even though made in her presence by her husband. But such as they were, they amounted to nothing more than expressions of opinion. To say, the day after the funeral, when the will had been read, that plaintiff would “ receive much more than if she received her dower; ” or, again, shortly thereafter, to say that there would be “ money enough for us all,” have not the weight of representations of facts, and certainly do not authorize a reliance upon them without investiga*564tian. Even if we assume that the representation by Mr. Kellogg, to the effect that the plaintiff would receive $1,200 to $1,300 a year, was made within the year after testator’s death, and not, as I think it clearly appears from the proofs, some time in 1883, more than a year after testator’s death, that would not exempt plaintiff from the duty of herself examining into the condition of affairs.

What was that but opinion ? With matters of opinion equity is not concerned. A representation which states a probability,, or possibility, or is conjectural, is not to be relied on or acted upon. She could have ascertained the extent, condition and tenure of the real estate and the nature of the assets and liabilities of the personal estate. She was bound to know that the law compelled her to make her election, as to whether she would abide by the will or not, within a year. Ignorance of that law is no excuse and expressions of opinion by interested persons cannot, when subsequently shown to have been groundless or false, be regarded as misrepresentations. But I am unable to see that this plaintiff was really so ignorant as she pleads. There is enough in her own letters in the case to show that she was pretty well informed upon estate affairs generally, and in a letter from Kellogg to her he speaks of this farm as a separate account, in which he acted by power of attorney. This was within the year after testator’s death and should have directed her attention to that subject. In this state the statute is imperative upon this subject of a widow’s election and there is no other provision relieving from its strictness; as in some of the states, where the widow’s dower right is retained to her if the property of the deceased is taken for his debts. Cases under such laws are inapplicable. Nor are authorities in point, where the facts show that the widow was actually prevented from exercising any election; or where the will, or the provisions in lieu of dower have entirely failed. If a widow has accepted a testamentary provision and it, or the will, shall fail for illegality, she is not bound and equity will relieve ; provided the rights of creditors or purchasers are not concerned, and will permit her to claim dower. *Hone*v. *Van Schaick,*7 Paige, 221-223. The reason of this principle is too obvious to be dwelt upon. There must be a possibility for an election, or there is no election. An illegal or invalid provision gives, nothing.

None of the exceptions to rulings call for our consideration and I think the judgment appealed from should be affirmed, with costs.

All concur.