The weekly Panola star. [volume] (Panola, Miss.) 1857-1881, 1866-07-28
f
iffiilegs NJ M lllHh fgHH NJ
tFfefs aaa sppfaIs

I ouft n pNiaie Nv lha ale af all.
iha lsH'l, n lhs ieiHim hm iha mt
mrnl ~ his Aeiis alleging ih7i fItr
FfaHHal estate Wil Infane.fnf Tho
ippsilani The ehl8a lnswerd Nr
leiiiian aHd tfrial that fhe tesiafm
died In tho f,ll n 1850. and Wv d.
vii he1aeaihe'l ~ lera lif estate IN
sis slaves, and M al,sninie ntlo p
refitIn oihef pronll property. ani
9 NE estate IN sis hundred and Gfiy
atfos n land that she did nni fa
nounoc the will within ~ monihs.
end 4 conlcnt With ia provisions n
MT disturbed ~ lbe n..cssion NJ the
property but the estate has incc
beume insplvenl, by fmson n the
war and Of The emancipation of the
slaves.
The answer l. made q eros pet
ton, and prnys, either TINT the court
will refuse 10 order the sale " the
lands devised to her. or. " ordered to
be sold, that she may b. allotted her
dover IN the lands generally Of her
husband and states that size is will
ing 20 give back to the estate such Of
The personal property ~ was len to
her IN the will aud is now IN her
possession, aud to make up the deficit
Of such Of i as she has parted with,
except the slaves, all of which have
been emancipaicd. On the hearing,
the court, being of opinion that she
was barred her claim Of dover by
not having renowned the will, de.
creed all the lands TO be sold Tor the
payment of the debts Of the estate.
II appears by the record, that il was
shown on the hearing that the appel
liant was the widow of the tcstator.
that he died in 1859 seized Of the
lands devised to her in the will,
which embraced the dwclling-housc
and out-houscs attached to the resi-
dence Of the tcstator at his death, and
that the estate was amply sufficient
to pay its debts, but was rendered in
solvent by the war. From this de-
cree, the widow took this appeal.
The sole question presented is,
whether the widow is barred of her
dover by having failed to renouncC
the benefits of the will as required
by the statute. Revised Code, 1853
article l60.
BY the provisions of that statute
the widow, by her failure to renounc,
the will within the time prescribed
is placed in the same condition that
she would have been in, by the gen.
eral rules of law, If the statute had
never been enacted, and If she had
elected to accept the devise of tho
will in lieu of her dover. Her fail.
urc to rcnouncc amounts, under tn,
.,tatute, TO an election TO take under
the will, but to no more. Testing
her rights, therefore, by the princi
pies that would have governed then
IN case of a positive election by her
in the absence of the statute, sh,
would not have been bound by sucl
election il il subsequently turned on
that il was made under a mistake
and that she failed to obtain, by th'
will, the benefit of the provision
made in her behalf 2 Story's FL
Jur., $. 1908, Kidney Va. Coussma
ker, IL YES, 1856; Wake vs. Wake,
ib., 1856; Snelgrove VS.. Snelgrove,
Dessaus, 10000.
i Here it is plain that the failure Il
renounce was under the belief, then
to all appearances well founded, tha
the estate was amply sufficient to pa,
the debts, and that she would enjo,
the full benefit Of the testator'
bounty under the will, and that sb
has lost this benefit without an,
laches on her part; and, on genera
principles of equity, she would b
entitled to repudiate her election, AM
to he restored to her rights apar
from the will.
This equitable rule is clearly rccog
nized by our statute, Rev. Code, i6t
art. l70, in these words: " But II. !
effect, nothing shall pass By such dc
! wise, she shall not be barred thereb,
whether she shall or shall not r,
nounce a. aforesaid, il being th
intent of this act and consonant I
! Justice that a widow accepting q
abiding by a devise, in lieu Of b,
legal right, shall be considered as
purchaser for fair consideration"
When, therefore, without fault o
her part, she obtains nothing by th
devise, her right Of dover is not cor
/ cluded by her acceptance Of the vii
, and she will be entitled to her dow,
: in her husbands real estate.
: II docs not fully appear, by d
record, whether any part Of the PEI
sonalty has been allotted 10 her as BE-
portion Of the estate. II there hi
g been such property allotted to he
she is required to restore il to Il
estate; aud she is sllsO ciaarsable vii
e any Of the property which has con
!, to her possession, and which she b.
:. converted to her own use, wheth'
: the same has beer allotted to her I
: not, In due form Of law.
. II follows that the decree must
4 reversed, and the cause remanded
Q the court below, to be proceeds
2 with accordiugto the principles here
: stated.
II