Daily clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-07-18
DECISIONS OF THE HIGH COURT
ERRORS MD APPEALS.
AT THE APRIL TERN, 1866.
Reported Expressly fer she Mississippi
Clarion and Standard.
Sarah Collins }
Ts. :
Samuel Melton. Ex'r.

-.
Samuel Melton, Ex'r.
CHIEF JUSTICE HANDY DELIVERED TIRE
OPINION OF THE COURT.
The appellee. as executor of Starkey Col
Inns, filed his petition in the Court of Pro-
tator for the payment of his debts, alleging
that the personal estate was insufficient
The appellant, the widow, answered the pc
tition and stated that the testatOr died in
the fall of 1859, and by his will bequeathed
to her life estate in six slaves, and an abso-
lutte title to certain other personal property,
and a life estate in six hundred and forty
acres of land; that she did not renounce the
will within six months, and is content with
its provisions if not disturbed i'll the posses
sion of the property; but the estate has since
become insolvent, by reason of the war and
of the emancipation of the slaves.
The answer is made a CT Oss-petition, and
prays, either that the Court win refuse to
order the sale of the lands devised to her, or,
if ordered to be sold, that she may be allotted
her dover in the lands generally of her hus-
band; and states that she is willing to give
back to the estate such of the personal pro-
perty as was left to her in the will and is now
in her possession, and to make up the deficit
of such of it as she has parted with, except
the slaves all of which have been enamel
pated On the hearing, the Court, being of
opinion that she was barred her claim of
dover by not having renowned the will, de-
of the debts of the estate. il appears by the
record, that it was shown on the hearing,
that the appellant was the widow of the tes-
tatOr, that he died in 1859, seized of the
lands devised to her in the will which EN-
braced the dwelling house and Out-houses at
tached to the residence of the testator at his
DEATH and that the estate was amply suff-
cient to pay its debts, but was rendered in
solvent by the war. From this decree, the
widow took this appeal.
The sole question presented is, whether
the widow is barred of her dover by having
failed to renounce the benefits of the will as
required by the statute. Revised Code, 468,
article 1863
By the provisions of that statute, the
widow, by her failure to renOunce the will
within the time prescribed, is placed In the
same condition that she would have been in,
by the general rules of law, if the statute
had never been enacted, and if she had
elected to accept the devise of the will in
lieu of her dover. Her failure to renounce
amounts, under the statute, to an election to
take under the will, but to no more. Testing
her rights, therefore, by the principles that
would have governed them in case of posi-
tive election by her, in the absence of the
statute, she would not have been bound by
such election if it subsequently turned out
that 1T was made under a mistake, and that
she failed to obtain, by the will, the benefit
of the provision made in her behalf 2 Story's
Eq. Jur., s. 1898, Kidney VS.. Coussmaker, ~
Yes, 1876; Wake VS.. Wake, ID, 1886; Smell
grove VS.. Snelgrove Dessaus, $4,000.
Here it is plain that the failure to renounce |
was under the belief, then, TO all appearances |
we'll founded that the estate was amply suf- |
ficient 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 aid,
an nir.la Of ifr- al
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, 1863, art. 40, in
these word: But it, in effect, nothing shall
pass by such devise, she shall not be barred |
thereby, whether she shall or shall not re-
nounce as aforesaid, it being the intent of
this act and consonant to justice that q
widow accepting or abiding by devise, in
lieu Of her legal right, shall be considered as
a purchaser for fair consideration "
When, therefore, without fault on her part, |
she obtains nothing by the devise, her right
of dover is not concluded by her acceptance
of the will, and she will be entitled to her
dover in her husbands real estate.
1t does not fully appear, by the record,
whether any part of the personality of the
estate has been allotted to her as her portion
Of the estate If there has been such pro-
perty allotted to her, she is required to re-
STORE II 70 buc cststbcs anu sue Is aisO Charge l
able with any of the property which has
come to her possession, and which she has
to her own use, whether the same
has been allotted to her or not, in due form
IF law.
1t follows, that tho decree must be reversed, |
md the cause remandsd to the Court below,
20 be proceeded with according to the prin-
,iples herein stated.
Mrs. Anna Cora Richie is living in
London, and is the correspondent of
hip Home Weekly, Baltimore Gazette
ind Daily News. She lest her all by
Ter husbands investment in Confed-
rate bonds, and the failure of her