Daily Mississippi clarion and standard. [volume] (Jackson, Miss.) 1866-1866, 1866-07-18
DECISIONS OF THE HIGH COURT
OF
ERRORS AND APPEALS.
ATT THE ApRTT TERM 1895
Reported Expressly fer she Mississippi
Clarion and Standard.
Sarah Collins

Sarah Collins
w.
Samuel Melton, Ex'r.
CHIEF JUSTICE HANDY DELIVERED THE
OPINION OF TILE COURT.
The appellee, as executor of Starkey Col
Inns, filed his petition in the Court of Pro-
bates for the sale Of all the lands of the tes-
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 q life estate in six slaves, and an abso-
lutte title to certain other personal property,
and 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 iu 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 petition, and
prays, either that the Court win refuse to
order the sale of the lands devised to her, OF,
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 win 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 emanci-
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 1t appears by the
| record, that it was shown on the hearing,
that the appellant was the widow of the ties
| tatOr, that he died in 1859, seized of the
lands devised e. her in the will, which en-
braeed the dwelling house aud out-houses at
| tached to the residence of the testator at his
death, and that the estate was amply sufi-
Gent 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 renouncs the benefits of the will as
required by the statute. Revised Code, 468,
article 1862
By the provisions of that statute, the
widow, by her failure to Tenounce 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 a 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 it 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, I2
Yes, 1856; Wake VS.. Wake, ib, 1886; Smell
grove VS.. Snelgrove, 4 Dessaus, 296-3OO
Here it is plain that the failure to renounce
was under the belief, then, to all appearances
well 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
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, 400, art i7O, in
these word: But if, 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
widow accepting or abiding by devise, in
lieu Of her legal right, shall be considered rs
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 win, and she win be entitled to her
dover in her husbands real estate.
1t does not fully appear, by the record.
whether any part of the personally 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 it to the estate; and she is also charge
able 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. w Is al a =
It fOllows, that tho decree must be reversed,
and the cause remandsd to the Court below,
to be proceeded with according to the prin-
ciplss herein stated.