Collins v. Carman

5 Md. 503

• Court: Court of Appeals of Maryland
• Decided: December 15, 1853
• Status: Published

Opinion

Eccleston, J.,

delivered the opinion of this court,

Eliza Carman, who was the wife of Wm. Carman, became insane some time prior to the date of her husband’s will, and so continued until her decease, which occurred more than four years after his death and the grant of letters testamentary on his estate.

The will named the appellee with two others as executors and trustees. The others having renounced, the appellee took upon himself the trusts reposed in him.

The clauses in the will which are deemed important in the present controversy are the following:

“ Out of the income of rny estate and during the lifetime of my wife, Eliza, my trustees above named will pay all taxes and repairs of my lot and house in High street, in the city of Baltimore, in which I order and direct my trustees to take no account of the furniture, so as to have it removed or disposed of; the said lot, house and furniture to be used by my wife Eliza, free from any cost or charge to her during her life. My trustees will take a» inventory of my books and furniture, and give in special charge to the housekeeper, that they be not wasted or destroyed by neglect or imposition on the liberality of my wife. My trustees will employ a housekeeper, who will be kind and careful of my wife Eliza, and I would give the preference to Ann Bell or Elizabeth Miller, with the wages and necessary maintenance for the coiafort of my wife Eliza.”

“ My trustees will pay to the niece of my wife, to wit, Susan H. Jones, fifty dollars per month, and monthly, for the expenses of all the comforts and necessaries that may be necessary for the family of my wife. My trustees will examine the accounts of Susan H. Jones, and for all moneys she may produce satisfactory vouchers for, they shall allow and pay her four per cent, out of other moneys than the fifty dollars per month above mentioned. Any expense of doctors or funeral charges for my wife, is not included in the fifty dollars per month above named.”

No renunciation, by the widow, or by any one in her behalf, was made, or attempted to be made, during her life; but the provisions in the will for her benefit were fully complied with by the appellee. Shortly after her decease letters of administration on her estate were granted to the appellant, and very promptly he filed in the orphans court a paper purporting to be a renunciation of the devises and bequests made for the benefit of his intestate. The right to make such a renunciation was denied and opposed in that court by the appellee.

Subsequent to this proceeding the present bill was filed, for the purpose of obtaining a decree declaring the renunciation of the appellant effectual and sufficient; or if, from any cause, it should be deemed informal or imperfect, the complainant prays that he may be considered as revoking, by his bill, the renunciation. He then prays for an account of the personal estate of William Canaan, and that his executor, (the appellee,) may be required to pay to the complainant such sum as he may be entitled to receive, in right of his intestate, from the personal estate of her deceased husband.

The renunciation professes to renounce “al! the bequests and provisions made to or for the benefit” of the widow, and claims in lieu thereof her share of the personal estate, and an account of the rents and profits of the realty.

The bill admits that the appellee faithfully fulfilled all the directions of the will, in relation to the support and care of the widow, and that in his accounts he had received credits for such disbursements. And the complainant states, that in case his renunciation shall be available in law, he is willing to make all just allowances in regard to the expenditures which have been made for the widow, upon an account to be properly stated; in which account he supposes the proportions of rents and income from real estate, accruing in right of the widow, so far as received by the defendant, will also be brought into view.

These facts are deemed sufficient to present the questions necessary to be decided. The first of which is, whether the provisions of the will, in regard to the widow, are such devises of realty and bequests of personalty, within the meaning of the act of Assembly, as created any necessity for a renunciation, assuming that where a widow i,s rendered incapable of renouncing, on account of insanity, her right of dower and share of personalty will be as effectually barred by the statute, as will similar rights of a sane widow, who fail? to renounce in time.

Inasmuch as the act of 1798, ch. 101, sub-ch. 13, speaks of a devise or bequest “to the wife,” it is insisted that the meaning and design of this language has not been complied with by the provisions made for the benefit of Mrs. Carman; nothing, in reality, having been given to her, but the gifts are to others., for the purpose of taking care of her..

Notwithstanding this is the argument now urged by the appellant, it is evident that the bill concedes, or is based upon the assumption, that a renunciation would have been necessary if the widow had been of sound mind. And the written argument of the solicitors for the complainant in the court below, which is also before us, is a very faint denial, if a denial at all, of the necessity for a renunciation in regard to the realty. On this subject they say: “But our position is, that even if, in respect of the real estate, it can be said that there is a devise to her of the house for life, yet, that in respect of the personal estate, there is no bequest to the wife.”

But independently of any actual or supposed concession, either in the bill or the argument, in our opinion, the provisions of the will, in relation to both species of property, were such as made it necessary for a renunciation under ordinary circumstances.

In Farwell vs. Jacobs Adm’r, 4 Mass., 634, the will directed the executor to support, “in sickness and in health,” the testator’s aged father. The executor having failed to execute the trust, letters of administration de bonis non cum testamento annexo were granted to the defendant. He also neglected to support the father, who instituted the suit to recover in damages a sum equivalent to the support and maintenance directed by the will. Upon a statement of facts the court held, that the plaintiff was entitled to a judgment against the estate in the hands of the administrator. Such a bequest, it was said, could be enforced by a bill in chancery, and damages are given at law, in consequence of there being no chancery court in that State. On page 636, C. J. Parsons says:•“The direction to support and maintain the plaintiff results from the bounty of the testator declared in his will, and must be considered, as to the remedy, as a legacy.” And therefore the case -was considered to be within the provisions of their State law, which enacts, in general'terms, “that any person having a legacy given him may sue for and recover the same at common law;” page 635.

By the will in Tolson, et al., vs. Tolson, et al., 10 G. & J., 159, the testator gave the residue of his estate to his seven sons, and their heirs and assigns; and then added : “I request my seven sons, above named, to take care of their brother, John Tolson, and his family.” John and his family were in abject poverty, but received no support or relief from his brothers. The provision in reference to the family was held void for uncertainty, but the seven sons were considered as trustees for John, and responsible, in equity, for the payment of such sum as would be proper to compensate for his maintenance since his father’s death, and to secure the future payment of an annuity.

If those two cases are to be regarded as recognizing correct principles, we do not perceive how it can be successfully contended that this will gives nothing “to the wife” of the testator. The lot, house and furniture are to be used by her free from cost or charge to her during her life. The sum of <|50 per month is to be paid by the trustees to Susan H. Jones, for the express purpose of furnishing “the comforts and necessaries” required ‘ for the family” of the wife. In addition to this monthly sum, her doctor’s bills are to be paid out of the husband’s estate, and upon all moneys disbursed by S. H. Jones for family expenses, she is to receive from the trustees four per cent. Under these provisions who was the object of the testator’s bounty,' S. H. Jones or the wife? Most undoubtedly the latter. If so, had she become sane before six months subsequent to the testator’s decease, and had renounced “all claim to any bequest or devise made” to her by the will of her husband, and elected to take in lieu thereof her dower or legal share of his estate, we suppose it could not be said that, nevertheless, S. H. Jones, or any one else, could then have claimed any thing further under the clauses of the will which have been referred to. If we are right in this supposition, these provisions, in legal contemplation, must be gifts to the wife, within the meaning of the act of 1798.

But admitting it possible to entertain a doubt in relation to the $50 per month being a gift to the wife, how can there be any in regard to the house and furniture? The will declares they are “to be used by my wife Eliza free from any cost or charge to her during her life.” Thus she is entitled to the use of both for life. It is said, however, that the trustees are to take an inventory of the furniture and to give it in special charge to the housekeeper, and this is relied upon as manifesting an intention not to give it to the wife; but if it is to. be in charge of the housekeeper, she is so to have it in charge for the use of the wife. It is only a cautious provision made in consequence of her insane condition, so as more effectually to preserve the property for her use. The house and furniture are for her use during life, and the testator sp'eaks of the family as ‘'the family” of his wife.

The remaining question, which has been argued with great ability, is an interesting one, and not clear of difficulty. It presents the inquiry, whether an administrator of a deceased insane widow can renounce the will of her husband, and claim such share of his estate as she would have been entitled to had she been sane and made a renunciation in due time; or as if there had been no will, notwithstanding she lived four years and upwards after her husband’s decease, and during that period received, regularly, the benefits or gifts provided for her in the- will. And supposing the administrator has no authority to-make such a renunciation, can he, nevertheless, by virtue of the widow’s insanity, claim he? legal share of the estate, notwithstanding the provisions of the will for her benefit? Can he do so because the statute does not create any bar to an insane widow’s right to dower, or claim to her legal share of personalty, even although the will of her husband gives her both real and personal property?

After a careful consideration of the subject, we’ think he cannot make the renunciation, or claim any thing beyond what is given by the will. In saying this, we wish to be understood as not intimating any opinion upon the question, whether a court of equity can or cannot make an election or renunciation for an insane widow, during her life and in proper time; This case does not call for a decision on that point.

The argument in behalf of the appellant insists, that at common law, a widow had an acknowledged legal right of dowerj and also, a legal right to a share of the personal estate, subject only to the payment of the just debts and claims against her husband. Neither of which rights could she be deprived of by his will without her consent. In support of which, the cases of Griffith vs. Griffith, 4 H. & McH., 101, and Coomes vs. Clements, 4 H. & J., 480, have been referred to. JB uU although these cases treat of the common law rights of h widow, and decide what those rights were, under the facts disclosed in them, they do not decide how far the common law, in regard to the case before us, has been abrogated or altered , by our State legislation.

The first case was decided at May term 1798. The will gave to the wife during widowhood, a portion of the real estate, provided she should claim no thirds in the testator’s land, in “Rumney Neck';” making no other devise of realty to her,, and containing no bequest of personalty in her favor. She made no renunciation. And the question before the court was, whether she was entitled to one third of the personalty, the same having been all bequeathed to the children of the testator? The court gave judgment in her favor. This decision and the act of 1798, are not at all in conflict. The will gave no part of the personal estate to the widow, nor does it declare any intention that the devise of realty should be in lieu of her legal share of the personalty. The 4th sec. of the 13th sub-chapter of the act, declares, that if only a part of the real estate, or only a part of the personal estate is given, the gift shall bar the widow “of only the real or personal estate, as the case may require;” providing, however, “that if the devise of either real or personal estate, or-of both shall be expressly in lieu of her legal share of one or both, she shall accordingly be barred, unless she renounce as aforesaid.” Since 1798, there would be no necessity for a renunciation to entitle a widow to her share of the personal estate, in a case similar to that of Griffith vs. Griffith, where the will gave her real estate only,, and declared that to be in bar of her claim to thirds in a particular part of the testator’s realty.

The question involved in the second case, (Coomes vs. Clements) did not call for a construction of the act of 1798, as to its effect upon a case like (he present. This is apparent from the concluding remarks of the distinguished counsel for the appellee, on page 482. And Justice Johnson says: “The act of 1798, ch. 101, passed before the will in question was made, restricts the widow’s interest, whether children or not, to one third in cases to which the restriction applies. The case before the court does not come within the restricted exception mentioned in the act; and as the testator died without leaving children or their representatives, I am of the opinion the decision of the orphans court giving her one half was correct.”

After stating what is claimed to be a widow’s rights at common law, it is contended by the appellant, that, although the language of the act of 1798, on the subject of her renunciation, is very general and comprehensive, yet it can only apply to a widow of sound mind, who is capable of exercising a proper discretion, whether she will abide by her husband’s will, or claim her legal rights; that those rights were not created by the act, but existed at common law, and are recognized by the provisions of the statute; that in the case of a sane widow she is left fully at liberty to renounce the devises and bequests made to her by the will of her husband, and insist upon her legal claims; that the act does not design to deprive her of her common law rights, unless she sees fit to surrender them, by voluntarily assenting to the will, or neglecting to renounce in proper time. In support of these views, the 5th section of the 13th sub-chapter, has been relied upon, which declares it, to be the intent of the 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 with a fair consideration.” Seeing that a widow who is insane, possesses no discretion, is incapable of making an election or' renunciation, or of doing any act which can legally affect her property, it is said'to follow, necessarily, that the provisions of the statute, on the subject of renunciation cannot apply to such widow, and her common law rights will remain unimpaired, notwithstanding her husband’s will may make devises and bequests in her favor, and there is no renunciation.

The ill effects of an opposite theory have been eloquently portrayed; and particularly the evil of subjecting an unfortunate wife to the danger of being but poorly provided for by a wealthy, but unfeeling husband, and leaving her remediless. It would be very proper that the supposed evil or hardship, should exert an influence in giving construction to a statuter where its language is ambiguous or doubtful, but when plain and explicit., care should be taken not to allow such considerations to exert an undue influence. In regard to the effect of hardship, our late learned Chancellor, in Young vs. Mackall, 3 Md., Ch. Dec. 406, said, “Considerations of hardship have been pressed upon the court, and to such considerations, when at liberty to listen to them, I by no means profess to be insensible. But I sit here not to make, but to administer the law, according to my best judgment, as I find it enacted by the legislature, or settled by the courts.”

In a case where the claims of a widow were concerned, Judge Gaston saysr “Where the language of a statute is free from ambiguity, there is much hazard of misconstruction by departing from it in search of the supposed policy of the legislature.” 2 Dev. Eq. Rep., 344, Craven vs. Craven.

The 1st section of the 13th sub-chapter of the act before us, declares that “every devise of land, or any interest therein, or bequest of personal estate, to the wife of the testator, shall be construed to be intended in bar of her dower in lands, or share of the personal estate, respectively, unless it be otherwise expressed in the will.”

The 2nd section provides, that “a widow shall be barred of her right of dower in land, or share in the personal estate, by any such devise or bequest, unless within ninety days,”' (now extended to six months,) “after the authentication or probat of the will,” she shall renounce and quit claim to any bequest or devise made to her in the will, and elect to take in lieu thereof, her dower, or legal share of the estate of her husband. The only exception to the bar thus created, is to be found in the 5ih section; which enacts, that if, in effect, nothing shall pass by such devise, the widow shall not be barred thereby, whether she renounces or not. Every valid devise or bequest is, therefore, made an effectual bar, unless it be removed by a renunciation. And until that is made the bar remains. The law admits of no excuse for a failure to renounce. If she makes no election within the time prescribed, the law makes it, without stopping to enquire why or for what reason she made none.

Thus it appears material changes have been made in the common law. Various acts on this subject have been passed by our legislature, but the one of most importance, now to be considered is that of 1798. Under this we conceive that when a man dies leaving a will, making valid gifts of real and personal estate to his wife, she has not, as she had at common law, a vested right to dower in his land, or to a legal share of his personalty, but her vested rights are under the will by virtue of the statute law. The law clearly gives to the husband the power by his will to bar, or extinguish the common law rights of his widow, unless she thinks proper to quit all claim to the property conferred upon her by the will. And to effect the husband’s object the wife need not declare her assent; if however, she desires to defeat it, she must manifest her intention to do so, by an express dissent. And such dissent is an act, which by the very terms of the law, must precede her becoming entitled to or vested with, those rights which she might have claimed but for the will; for the act declares, site shall be barred of those rights, if she does not renounce and quit claim to the devises and bequests, and make her election to take in lieu thereof her dower, or legal share of the estate. It is this election which vests in her the right of dower or legal share, in lieu of what the will had given. (See 2 Devereux’s Eq. Rep., 344.) Whether from design, neglect, or from other cause, the widow fails to make such renunciation, the result is the same. It cannot therefore be said, with propriety, (as has been argued with much ingenuity and earnestuess,) that the loss of dower or legal share of the estate, in consequence of a failure to renounce, is a forfeiture; and that consequently an insane widow cannot forfeit her common law rights by failing to renounce, because the law will not impose a forfeiture upon an insane person, for not doing an act which she is incapable of doing. If we are correct in our view of what are now the widow’s vested rights, upon the decease of her husband, a failure to renounce does not work a forfeiting of any vested rights; but more properly speaking, that failure simply prevents her from acquiring the same rights she would have been entitled to had her husband died intestate, or made no provision for her in the will, or had expressly declared that such provisions should not bar her claim to dower or legal share of the estate. To acquire such rights in opposition tó the will, the law makes the renunciation a necessary act. The non-performance of this act, is therefore, not a-forfeiture of existing rights, but prevents the acquisition of those rights, which, by its performance, might be secured.

That the legislature possessed the authority to make such alterations in the common law, none can doubt; and we feel very confident that, in regard to sane widows, these changes have been made. Let us ascertain whether the present case' of an insan'e widow is embraced within them.

The language of the statute is quite comprehensive enough to include every widow, whatever may be her age or mental condition, there being no exception in favor of infants or insane persons. By the 1st section of the 13th sub-chapter, “every devise of land, or any interest therein, or bequest of personal estate to the wife, shall be construed to be intended in bar of her dower in lands, or share of the personal estate respectively, unless it be otherwise expressed in the will.” And the 2d section declares, that “a widow shall be barred of her right of dower in land, or share in the personal estate by any such devise or bequest,” unless she makes her renunciation.

When the law directs an act to be done, or a condition to be performed for the purpose of conferring a right, that right cannot be acquired if the act is left undone, or the condition is not performed. And if no exception is made in favor of insane persons, courts of justice have no more power to decree to them the allowance of such rights, because of their mental incapacity to comply with the requisites of the law, than they have to decree in favor of sane persons failing to comply. If the law makes no exception the courts can make none, whether they be courts of law or equity; for where the construction of a statute is before them, the rules of construction are the same in both courts. In 2 Harrison (N. J.) Rep., 462., Thompson, vs. Egbert, it is said, “There is but one rule of construction for statutes, and that must be applied as well in a court of equity as in a court of law. There is no relief against the provisions of a statute any where,”

Humpfrey vs. Gery, 7 Man. Gran. & Scott, 62 Eng., C. L. Rep., 567, is a case in which a lunatic and his committee were plaintiffs, claiming arrears of rent. The case was sent by the Fice Chancellor to the judges of the Common Pleas for their opinion, who certified that the plaintiffs were not entitled to recover the rent due for more than six years. At page 589, justice Maulé says, “there being no provision in the latter act extending the disability of lunacy to a case of this sort, and the court having no power to extend it by analogy, the plaintiffs arc not entitled to recover the arrears in question.”

In Demarest vs. Wynkoop, 3 Johns. Ch. Rep. 142, Chancellor Kent, with that ability for which he was justly admired, has examined the doctrine in regard to any inherent equity creating an exception as to any disability, where the statute of limitations creates none, and expresses the belief that such a doctrine has been long and uniformly exploded. He says, “General words in the statute must receive a general construction, and if there be no express exception, the court can create none. It was agreed without contradiction in Stowel vs. Zouch, (Plowd., 369, b., 371, b.,) that the general provision in the statute of fines would have barred infants, feme coverts, and the other persons named in the proviso, equally with persons under no disability, if they had not been named in the exception or saving clause.” Many authorities are excited and commented upon by the chancellor. Among them he refers to two opinions of Lord Redesdale, as being “remarkably elaborate in tracing the authorities, and in enforcing the duty of a court of equity to render entire obedience to all the provisions of the statutes of limitations.” This opinion of Chancellor Kent has been approved of in our State, by both the former and present Court of Appeals. 3 Md., Rep., 383, Hertle & Wife vs. Schwartze & McDonald. If these are the rules which apply to the statute of limitations, it is difficult to perceive why they should not be equally applicable to other statutes. In Lewis vs. Lewis, 7 Iredell R., 73, the court in reference to a matter very analogous to the present, say: “there is no proviso or. Saving in the statute, that, in case the widow be a lunatic, then her committee may dissent for her. When the legislature has not thought proper to insert such a proviso in the act, it seems to us to be asking of the court too much, for it to tack such a proviso, by way of construction, to the statute.”

With these principles before us, sanctioned by such authority, we cannot but believe the present case is embraced within the broad and explicit language of the act of 1798, and that without a renunciation, the widow had no right to dower, or to her common law share of the personalty.

Can the renunciation of the administrator avail any thing? We think not. To such a proceeding there are various objections. In the first place, by the very terms of the act, the right to renounce seems to be a personal privilege. In one section, speaking of the widow, the language is, “unless she shall deliver,” &c., and in another, “whether she shall or shall not renounce.” The nature of the estate she thereby acquires in the realty, being an estate for her life, tends to sustain this view of the subject. And in Boone vs. Boone, 3 H. & McH., 95, the right to renounce was held to be a privilege personal to the widow, which her representatives could not exercise. But another serious objection is, that the widow for more than four years after the will was admitted to probate, enjoyed all the benefits provided for her by the will. If after this lapse of time, under such circumstances, the administrator can make an effective renunciation, or without any, (as has been contended,) he can claim the common law rights of the widow, there is no reason why he may not do so after a much longer period. And so, whenever a man leaves an insane widow, for the whole period of her life, his estate must, to some extent, remain in an unsettled condition, very much to the annoyance and injury of those who have an interest in it. The law has been vigilant in endeavoring to avoid delay as far as practicable, and to secure a prompt adjustment of claims to property. It is this principle which prompted the legislature of 1798, to require that the- renunciation should be made within ninety days; since then the time has been extended-to six months. And finding in neither statute, any exception on this point in relation to any case whatever, how can we say there is no limitation of time, in this case, short of the widow’s life?

In Ex-parte Delilah Moore, 7 How. (Miss.) Rep., 668, where an effort was made to renounce a will, some two or three days after the six months prescribed by law had expired, the court say: “It is a dangerous experiment to extend the terms of a statute by construction beyond their obvious import. In attempting thus to moderate the apparent vigor of a rule, we may do more mischief than by a strict adherence to it. It would tend to destroy the certainty of the law, and thereby increase litigation, and disturb the repose of society.” Again they say: “It is better therefore to abide by the law as it is written, than to create exceptions without being able to foresee where they may end.”

In a note to Moot vs. Parkhurst, 2 Hill (N. Y.) Rep., 373, 374, Justice Marcy says, “Neither a commisssioner in vacation, nor the court in term, can enlarge the time within which an act is to be done, when such time is regulated by statute.”

The great importance of having a widow’s rights finally settled within a reasonable and definite period, has been the subject of judicial discussion and decision in many other States of the Union. In Craven vs. Craven, 2 Devereux, Eq. Rep., 346, 347, the court rejected the claim of a widow for dower, because she had not renounced the will in due time. The able opinion delivered by Judge Gaston, speaks of interests of great magnitude and of general concern, demanding the decision which the court felt it their duty to make. And inasmuch as the right of dower is paramount to the claims of the husband’s creditors, and attaches to the lands after they are alienated by his heirs, the judge thinks, justice and the repose of the community require, that it should be ascertained as speedily as convenience will permit, whether the lands of a deceased man, in the hands of his heirs and devisees are, or are not subject to this incumbrance. He then says, “The law has defined the time, and prescribed the mode, when and how this fact can be certainly known. The most obvious considerations of public policy forbid, without the clearest warrant, judicial exposition which will have a tendency to defeat this great purpose of the' law.”

In Hinton vs. Hinton, 6 Iredell 277, “the business of the estate, and the interests of creditors and other legatees,” are considered just grounds for requiring an election to be made strictly according to the terms of the law.

In Reid vs. Campbell, Meigs’ Rep., (Tenn.,) 388, because the power to dissent changes the whole operation of the will, and opens both real and personal estate to the widow’s rights', the court consider it a wise provision, that she is required to make her election'within six months after the probate of the will, before any division or distribution of the estate has been made, “so that persons claiming under the will may know what their rights are,- and not be harassed by the claims of the widow at any indefinite time after the death of the 'testator.”

In Shaw’s Devisees vs. Shaw’s Adm’r, 2 Dana’s Rep., 343, a fenunciation within a reasonable time -is held to be necessary for the sake of distributees and legatees, that there may be a Speedy adjustment an’d distribution of a decedent’s éstate.

If it may be cohsídéred a' hardship upon thoáfe who claim úndef. an' insane vridow, riot to permit her administrator to ren'óúncé the will, or without á formal renunciation tó repudiate the will and claim the widow’swights, as if nothing had been devised or bequeathed to her, the recognition of such rin authority in thé administrator would be productive of équall'y great, if not much greater, hardship and inconvenience to those whose interests are to be affected thereby. An'd if the argument ab inconvenienti should be allowed to exert ariy influence in the decision of this case, it ought to operate most favorably to the appellee, the question before us being, whélher the administrator, after a lapse of years, can renounce, of if not, whether he can insist that no renunciation in such a case is necessary, but without it may claim in behalf of the widow, what she would have been entitled to in case of intestacy or if the will had given her nothing?

An administrator can have no power to make an éffectu? renunciation in a case like this. He only represents the pe sonalty. This will gave both real and personal estate to f 2 wife;, and consequently a renunciation to be legally effective should extend to both kinds of estate.

When the early case of Boone vs. Boone was decided, forty-days was the period within which the law required the widow to make her election.' She died before the forty days expired, and notwithstanding the shortness of the time, and but little progress had been made in the settlement of the estate, the representatives of the widow were not permitted to renounce the will. The authority of which case, decided in 1791, has never been questioned by any judicial decision or dictum in this State, which has come within our knowledge.

The statute of North Carolina requires that the widow “shall dissent in open court,” and this statute came under consideration in Hinton vs. Hinton. There the widow being unable from sickness to travel, appeared in court by attorney, and through him signified her dissent to the will of her husband. Notwithstanding this manifestation of her unwillingness to abide by the will, and although she was prevented, by physical inability, from complying with the strict terms of the law, nevertheless the court rejected her claim, because she had not signified her dissent in open court, in propria persona. It was this same statute which came before the court again in Lewis vs. Lewis. The widow in that case was a lunatic under the care of a committee. 1’t appears that, in point of fact, her dissent to the will was signified in open court. Assuming this dissent to be valid, a petition was subsequently filed in behalf of the widow, claiming that some suitable portion of the husband’s estate should be allotted to her according to the statute. The Supreme Court, however, held that the dissent was not hers, but that of the guardian, and as the act gave him no power to dissent, the claim was rejected and the petition dismissed. But it has been said these North Carolina cases cannot have any great weight on the side of the appellee, because, in that State, the widow never had such a common law right to a share of the person - alty as prevented the husband from bequeathing the whole of his personal property to others, to the exclusion of the -wife; and as her rights were created by the statute, her voluntary assent to the will could not be'necessary to bar or defeat her' common law privileges, because she had none to be barred or defeated. We need not stop to ascertain the correctness of the position here assumed, as to the law of North Carolina independently of their statute, for admitting the assumption to be correct, still the argument of the appellant based upon it cannot avail him, if the views already expressed by us in' reference to the change made in the common law by our legislature are not erroneous. Our opinion is, that when a will makes valid gifts to a wife, then, under our statute, she has no such common law rights as render her voluntary assent to the will necessary to bar or defeat them; the law itself creates the bar, unless being dissatisfied with the will she actually' renounces it, and her positive dissent confers upon her just such portions of the estate as she could have claimed had her husband died intestate. We think the language of the statute not only sanctions, but requires, such a construction. And we are confirmed in this opinion by the decision in Boone vs. Boone. The act then in force, so far as assent or dissent by the widow is concerned, is very much the same as that of 1798. The former act allowed the" widow forty days to deliberate, and yet her death, before the expiration of that time, prevented her representatives from renouncing. There' no evidence of voluntary assent was furnished, but the absence of dissent concluded her, and those claiming under her. Because she might have renounced before her decease, it is-by no means a fair inference that she was satisfied with the' will, for the law allowed her forty days for reflection, and to ascertain the condition of the estate, and her renunciation on the thirty-ninth day Would have been as effective as on the' first. Her privilege was just the same each and every day until the fortieth. If death on the thirtieth, without a renunciation, put an end to the right of election, we do not see" why the death of the widow the next hour after her husband’s decease should not have produced the same effect. It is not true that the bar is based upon consent, and the failure to renounce is to be considered as the evidence of that consent. If lapse Of time can create a legal inference of consent, surely to justify the inference it must require the whole time prescribed by law within which the renunciation may be made. Should the widow die within that period, would not the inference • fail for want of sufficient time? It would be a strange proposition to assert that the failure to renounce by a deceased person could afford a presumption of consent. And yet in Boone vs. Boone the widow died in less than forty days, and her common law rights were barred.

We cannot subscribe to the doctrine, so much insisted upon by the appellant’s counsel, that the widow’s rights are barred only in virtue of her assent to the will, and as an insane widow can give no assent, the statute does not apply to such a case. We think the common law rights of a sane widow are barred by the devises and bequests in her favor contained in the husband’s will, unless they are actually renounced, even although she may desire to renounce them. The bar does not rest upon her assent, hut is created by the will, and those rights of a widow which existed at common law, if she desires them, can only be vested in her by a renunciation. And inasmuch as the language of the statute is comprehensive and explicit enough to embrace the case of every widow to whom valid and effectual gifts are made by the will of her husband, and there is no proviso or saving in favor of an insane widow, such a case as the present is within the bar created by the statute.

The 5th section of the 13th sub-chapter has been repeatedly referred to as having much influence in favor of the appellant’s claim. This considers the case of a widow accepting or abiding by a devise in lieu of her legal right, as analogous to that of a purchaser with a fair consideration. When the object of the section is looked to, it is evidently not intended to have any effect upon the matter of volition or consent, but the analogy to the case of a purchaser is manifestly in reference to the validity of the devise. The section commences thus: “But if, in effect, nothing shall pass by such devise, she shall not be thereby barred, whether she shall or shall not renounce as aforesaid.” What is it which renders the renunciation unnecessary? Clearly the failure of the devise. And it is declared to be so, because it is consonant to justice that a widow accepting or abiding by a devise, in lieu of her legal rights, shall be considered as a purchaser with a fair consideration. As the failure of the devise is the case intended to be provided for, a fair consideration in a purchase is the point to which the analogy has particular reference. And inasmuch as the prior sections of the chapter provide that every devise, &c., shall bar the widow’s rights, unless the bar is removed by a renunciation, the law necessarily makes the failure to renounce, whether voluntary or not, an acceptance or abiding by the devise. In legal contemplation every widow who does not renounce the valid gifts made to her by the will does accept or abide by them.

It would seem to be a forced construction of this section, to suppose it was designed to provide for the free exercise of volition on the part of the widow, when it declares she shall not be barred, whether she shall or shall not renounce, if in effect she gets nothing by the will. With more propriety it may be considered as intended to protect her from being injured by her own voluntary act. For although she may, deliberately and freely, determine to abide by the will, yet, notwithstanding her positive assent thereto, if the'provisions designed for her benefit prove to be of no value, she’may still claim those rights which a widow would be entitled to at common law.

Decree affirmed, with costs.