Cassoday, J.
There can be no question but wbat the circuit court was right in concluding that the agreement given by the defendant, Sarah, to her husband a few days after their marriage, purporting to release all her interest in his estate, was null and void in law, and not at all binding upon her after his death. Wilber v. Wilber, 52 Wis. 298; Munger v. Perkins, 62 Wis. 504.
Since the testator died leaving him surviving no lawful issue, it follows that, had he made no will, all his property, both real and personal, would have descended to his wife, the defendant in this action, subject, of course, to the payment of debts, etc. Subd. 2, sec. 2270, and subd. 1, 6, see. 3935, R. S. But here the testator did leave a will, with the provisions indicated in the statement of facts. The testator, by his will, having so made provision for his widow, she was thereby put to her election whether she would take the provision so made in his will, or claim the share of his estate provided by statute. Sec. 2171, R. S. Immediately upon the probate of the will, January 6, 1880, she filed in the court having jurisdiction of the settlement of the estate, notice in writing to the effect that she elected to take the provision made for her by law instead of the provision so made for her in the will, as required by the statute. Sec. 2172, R. S. Upon so filing that notice she at once became “ entitled to the same dower in his [the testator’s] lands, and the same rights to the homestead, and the same share of his personal estate, as if he had died intestate,” except that “ the share of personal estate which she ” so took was restricted to “ the one-third part of his net personal estate.” Sec. 2172, R. S.; In re Wilber, 52 Wis. 297; Hardy v. Scales, 54 Wis. 452; Melms v. Pfister, 59 Wis. 191; Van Steenwyck v. Washburn, 59 Wis. 496.
[292]*292At the time the widow so made her election, the executors, of whom the plaintiff was one, held in their hands, in trust, as such executors, personal property valued at nearly $15,000. Of the net amount of this sum the widow was then entitled in her own right, and as her own property, to the one-third part thereof, or nearly $5,000. Ibid. In addition, she was, under the statute cited, then entitled to the “ same rights to the homestead . . . as if he [the testator] had died intestate; ” which, as we have noticed, gave her the absolute right to it as her own property. This is not in conflict with anything said in Ferguson v. Mason, 60 Wis. 377; for in that case there was no will, and of course the effect of an election not to take under a will but under the statutes did not arise. The homestead of which she so took the absolute title consisted of forty acres of the farm upon which the testator died, and upon which she still resided, with the buildings and improvements thereon. This homestead does not appear to have been separately valued, but counsel seemed to concede that it was worth two or three thousand dollars. In addition to this she was entitled to dower in the balance of the lands. This dower right may not have been regarded as of very much value at the time, as she was then about seventy-five years of age. Obviously, her interest in the estate, at the time of filing her election to take under the statute, was from seven to eight thousand dollars. It was that entire interest which she proposed in writing to “ release ” to the executors for $2,000, to be paid in sixty days from that date, together with the use of the west wing of the house on the homestead, fuel for one stove, and the joint use of the cellar during her life. In other words, she proposed to release to the executors forever the whole seven sevenths of what she had in the estate if they would allow her to receive and retain less than two sevenths of what was then in law her own property. The mere statement of the proposition repels any inference [293]*293of complete knowledge on her part, at the time, of the extent and value of her rights and property in the estate. Assuming that she had such knowledge at the time, it repels all reason and motive for the unusual haste in making the proposition on the very day of the probate, or putting' it in the form of a bargain and sale. People of her age, who can neither read nor write, and are ignorant withal, are at least conservative, and are not ordinarily inclined, without any suggestion or prompting from any one, and immediately after having asserted their legal rights, to deliberately propose in writing to barter away over $7,000 in money and property for the privilege of retaining $2,000 out of it.
But it is said that she had the legal right to give away the whole or any part of her property. Undoubtedly every adult of sound mind, including widows of - the defendant’s age, may, of their own free will, give away their property, or any part of it, to whomsoever they may choose, and no one not having any legal or equitable claim upon it can rightfully object; but the transaction before us does not purport to be a gift. There is nothing in it indicating love or affection as a consideration. On the contrary it purports to be an offer to release for a consideration to be paid, culminating in a transfer and conveyance upon the receipt of the consideration. Can it be sanctioned upon such a basis? By the will the whole estate was given to the plaintiff, upon condition that he pay the debts, expenses, and special bequests named, and then, upon the final settlement of the estate, divide the rest, residue, and remainder among the testator’s thirty-two nephews and nieces, including the plaintiff and' his then co-executor. The testator also gave to the plaintiff a specific legacy of $2,000; and also the free use, occupation, and rental of his homestead farm, tools, implements, machinery, stock, and household furniture for four years, and then only to be accountable [294]*294for their actual cash value at the date of inventory; and also gave him “ all farm produce, such as grain, hay, feed, etc., including growing crops,” with the privilege of taking said farm and personal property at a valuation named, he paying taxes, repairs, and insurance. Of course it was greatly to the advantage and benefit of each and all of the residuary legatees to obtain the widow’s share of the estate upon the terms proposed; and, in addition, it was of especial benefit and advantage to John. Besides, John and his then co-executor took one third part of the personal estate, amounting to nearly $5,000, in trust for the widow immediately upon her' election to take under the statutes. Scott v. West, 63 Wis. 555; McCants v. Bee, 16 Am. Dec. 610, and notes. John lived with the testator’s family on the home farm at the time of the execution of the will; and it may be fairly presumed that he continued to reside there after the testator’s death. His relations, as a trustee and otherwise, with the widow, were certainly more intimate than in Davis v. Dean, which we have just decided.1 It conclusively appears that John and Oliver knew the value of both the real and personal estate before accepting the proposition of the widow; for, prior to that time, the ap-praisement had been made, and they had filed their inventory with such appraisement.
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Cassoday, J.
There can be no question but wbat the circuit court was right in concluding that the agreement given by the defendant, Sarah, to her husband a few days after their marriage, purporting to release all her interest in his estate, was null and void in law, and not at all binding upon her after his death. Wilber v. Wilber, 52 Wis. 298; Munger v. Perkins, 62 Wis. 504.
Since the testator died leaving him surviving no lawful issue, it follows that, had he made no will, all his property, both real and personal, would have descended to his wife, the defendant in this action, subject, of course, to the payment of debts, etc. Subd. 2, sec. 2270, and subd. 1, 6, see. 3935, R. S. But here the testator did leave a will, with the provisions indicated in the statement of facts. The testator, by his will, having so made provision for his widow, she was thereby put to her election whether she would take the provision so made in his will, or claim the share of his estate provided by statute. Sec. 2171, R. S. Immediately upon the probate of the will, January 6, 1880, she filed in the court having jurisdiction of the settlement of the estate, notice in writing to the effect that she elected to take the provision made for her by law instead of the provision so made for her in the will, as required by the statute. Sec. 2172, R. S. Upon so filing that notice she at once became “ entitled to the same dower in his [the testator’s] lands, and the same rights to the homestead, and the same share of his personal estate, as if he had died intestate,” except that “ the share of personal estate which she ” so took was restricted to “ the one-third part of his net personal estate.” Sec. 2172, R. S.; In re Wilber, 52 Wis. 297; Hardy v. Scales, 54 Wis. 452; Melms v. Pfister, 59 Wis. 191; Van Steenwyck v. Washburn, 59 Wis. 496.
[292]*292At the time the widow so made her election, the executors, of whom the plaintiff was one, held in their hands, in trust, as such executors, personal property valued at nearly $15,000. Of the net amount of this sum the widow was then entitled in her own right, and as her own property, to the one-third part thereof, or nearly $5,000. Ibid. In addition, she was, under the statute cited, then entitled to the “ same rights to the homestead . . . as if he [the testator] had died intestate; ” which, as we have noticed, gave her the absolute right to it as her own property. This is not in conflict with anything said in Ferguson v. Mason, 60 Wis. 377; for in that case there was no will, and of course the effect of an election not to take under a will but under the statutes did not arise. The homestead of which she so took the absolute title consisted of forty acres of the farm upon which the testator died, and upon which she still resided, with the buildings and improvements thereon. This homestead does not appear to have been separately valued, but counsel seemed to concede that it was worth two or three thousand dollars. In addition to this she was entitled to dower in the balance of the lands. This dower right may not have been regarded as of very much value at the time, as she was then about seventy-five years of age. Obviously, her interest in the estate, at the time of filing her election to take under the statute, was from seven to eight thousand dollars. It was that entire interest which she proposed in writing to “ release ” to the executors for $2,000, to be paid in sixty days from that date, together with the use of the west wing of the house on the homestead, fuel for one stove, and the joint use of the cellar during her life. In other words, she proposed to release to the executors forever the whole seven sevenths of what she had in the estate if they would allow her to receive and retain less than two sevenths of what was then in law her own property. The mere statement of the proposition repels any inference [293]*293of complete knowledge on her part, at the time, of the extent and value of her rights and property in the estate. Assuming that she had such knowledge at the time, it repels all reason and motive for the unusual haste in making the proposition on the very day of the probate, or putting' it in the form of a bargain and sale. People of her age, who can neither read nor write, and are ignorant withal, are at least conservative, and are not ordinarily inclined, without any suggestion or prompting from any one, and immediately after having asserted their legal rights, to deliberately propose in writing to barter away over $7,000 in money and property for the privilege of retaining $2,000 out of it.
But it is said that she had the legal right to give away the whole or any part of her property. Undoubtedly every adult of sound mind, including widows of - the defendant’s age, may, of their own free will, give away their property, or any part of it, to whomsoever they may choose, and no one not having any legal or equitable claim upon it can rightfully object; but the transaction before us does not purport to be a gift. There is nothing in it indicating love or affection as a consideration. On the contrary it purports to be an offer to release for a consideration to be paid, culminating in a transfer and conveyance upon the receipt of the consideration. Can it be sanctioned upon such a basis? By the will the whole estate was given to the plaintiff, upon condition that he pay the debts, expenses, and special bequests named, and then, upon the final settlement of the estate, divide the rest, residue, and remainder among the testator’s thirty-two nephews and nieces, including the plaintiff and' his then co-executor. The testator also gave to the plaintiff a specific legacy of $2,000; and also the free use, occupation, and rental of his homestead farm, tools, implements, machinery, stock, and household furniture for four years, and then only to be accountable [294]*294for their actual cash value at the date of inventory; and also gave him “ all farm produce, such as grain, hay, feed, etc., including growing crops,” with the privilege of taking said farm and personal property at a valuation named, he paying taxes, repairs, and insurance. Of course it was greatly to the advantage and benefit of each and all of the residuary legatees to obtain the widow’s share of the estate upon the terms proposed; and, in addition, it was of especial benefit and advantage to John. Besides, John and his then co-executor took one third part of the personal estate, amounting to nearly $5,000, in trust for the widow immediately upon her' election to take under the statutes. Scott v. West, 63 Wis. 555; McCants v. Bee, 16 Am. Dec. 610, and notes. John lived with the testator’s family on the home farm at the time of the execution of the will; and it may be fairly presumed that he continued to reside there after the testator’s death. His relations, as a trustee and otherwise, with the widow, were certainly more intimate than in Davis v. Dean, which we have just decided.1 It conclusively appears that John and Oliver knew the value of both the real and personal estate before accepting the proposition of the widow; for, prior to that time, the ap-praisement had been made, and they had filed their inventory with such appraisement.
It is urged that there is no evidence to support the finding of the court to the effect that the widow made the proposition in writing mentioned, in consequence of what had previously occurred between her and one of the executors at an interview then had; nor any evidence to support the findings that she was ignorant of the amount, extent, and value of the real and personal estate at the time she made her election; or that she was so ignorant at the time she made the written proposition; or that she was so [295]*295ignorant at the time the proposition was accepted; Or that she was so ignorant at the time when she made the deed and transfer. The more serious question is whether there is any evidence that the widow did have knowledge of the amount, extent, and value of the real and personal estate, and her rights and interests in the same, at the time she made the deed and transfer. • The court found, that, although the executors knew all the facts in the premises, yet “ they failed and neglected to inform her of said rights and interests, but withheld the same from her as well as its value.” There is no claim, nor evidence tending to prove, that they ever did give her any such information.
To sustain the purchase, it was incumbent upon the plaintiff to prove that the widow, at the time, knew all the facts and her interests and rights in the premises. Then he would have brought his case within the rule stated by Lord EldoN, “that a trustee may buy from the cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances, proving that the cestui que trust intended the trustee should buy, and there is no fraud, no concealment, no advantage taken by the trustee of information acquired dy him in the character of trustee.” Coles v. Trecothick, 9 Ves. Jr. 246, 247. He then admits it to be “a difficult case to make out wherever it. is contended that the exception prevails.” In a later case the same learned chancellor, speaking of this “ difficulty in supporting a purchase by a trustee from the cestui que trust” said: “ It might be better-embraced under the policy of the law; ” and then quotes the above language, and adds: “ If the court cam discover that some advantage has been taken,' some information acquired, which the other did not possess, though it is not to ie precisely discovered, inadequacy, without going to the length of requiring it to be such as shocks the conscience, [296]*296will go a vast way to constitute fraud.” Morse v. Royal, 12 Ves. Jr. 313.
In the very recent case of Gandy v. Macaulay, L. R. 31 Ch. Div. 1, a testator bequeathed one half of his residuary personal estate, consisting principally of railway shares and stocks, to his sister, H., and one quarter thereof to each of his two nieces, M. and F., and appointed H. and B. executors of his will, and then died, in 1855. This residuary personal estate was, at the time of passing the residuary account, valued at £42,000. The nieces, M. and F., lived with their aunt, II. In 1859, the nieces being of age, each executed a release of her interest in the estate to her aunt, FI., in consideration of which the aunt paid to each niece £10,500, being-just the appraised value of her share. The aunt, II., died in 1819. In 1883 the action was commenced by one of the nieces to set aside the release. It appeared in evidence that the amount received by each niece from her aunt was only a little more than two thirds of what her share was worth when she gave the release. This evidence, according to Beett, M. R., made “it necessary to look carefully at the release itself; . . . and I look,” he continued, “for a recital to show why the two nieces did so strange an act. But I find no recital which would call to their attention their position. Therefore I must notice the'fact of giving up the property, and the want of the recital in the deed. These are two circumstances much to be considered, and they seem at once to shift the burden of proof, and to make it necessary that those who wish to uphold the release should show that full knowledge was • given to these ladies of what they were doing, before they came to so strange a determination.” He then goes on to show that if the aunt and her solicitor knew the facts, and did not tell the nieces, then it was a fraud; and if they did not know the facts, then the “ deed of release was signed by them in a state of [297]*297ignorance of the facts,— an ignorance participated in by the aunt and by the solicitor.” Lord Justices Cottoh and Fey filed concurring opinions, all agreeing that the inadequacy of price, or, rather, the absence of any consideration, and the absence of all evidence or recitals in the deed tending to show that the nieces were fully informed of the value of their interests in the estate, were sufficient to authorize and require that the deed of release should be set aside, even when there was no ground for inferring any fraud on the part of the aunt or the solicitor.
If such is the law where the amount retained by the trustee without consideration, in pursuance of the contract of purchase, is less than one third of the value of the cestui que trusts interest in the estate, in an action not commenced until twenty-four years after the delivery of the release, and four years after the death of the trustee, then the rule must at least be as stringent in a case like this, where the amount retained by the trustees without consideration, in pursuance of the contract of purchase, is more than five sevenths of the value of the cestui que trust?s interest in the estate at the time, and where the trustees were, at the time, fully advised of such value, and all the circumstances indicated that the cestui que trust was not so advised, but ignorant- of such value. This rule is in strict harmony with the recent decision of this court in Davis v. Dean, supra. Besides the above cases and those cited by counsel for the defendant, see, also, to the same effect, McCants v. Bee, 16 Am. Dec. 610, and notes; Ringgold v. Ringgold, 18 Am. Dec. 250, and notes; Keaton v. Cobb, 18 Am. Dec. 595; Drake's Appeal, 45 Conn. 9.
We do not think there was any error in excluding the testimony of the plaintiff as to the defendant having seen some of the notes belonging to the estate. He was a party to the controversy, and she was insane at the time of trial. Besides, she was unable to read or write. The mere in[298]*298spection. of notes by sucb a person would impart no more information to her as to their value than though she had been blind.
There can be no question of the right of the defendant, by her guardian ad litem, to contest the validity of the transfer. Salter v. Krueger, ante, p. 217.
^ The view we have taken of the case obviates the consideration of any of the other questions discussed.
By the Court.— The judgment of the circuit court is affirmed.