Catón, J.
On the 17th of September, 1846, Isaac Tyson, of Bonne county, departed this life intestate, leaving Mary Tyson, his widow, and William Tyson, an only brother, who resided in England. He left neither children nor the descendants of children. No administration was taken out upon the estate, but the widow paid the debts out of the personal estate. He left a considerable real estate situated in Boone county. On the 16th of August, 1847, Mary Tyson departed this life intestate, leaving the complainants her only heirs at law. The bill alleges that Mary Tyson did not, during her lifetime, elect to take her dower in the premises of which her husband had died seized, nor did she in any way relinquish her inheritance therein, but elected to take by inheritance. The bill also claims that she did, upon the decease of her husband, inherit one half of the real estate and all of the personal estate of which he died seized. The complainants claim to have inherited one half of the real estate from Mary Tyson, and the bill seeks a partition of the premises according to the respective rights of the parties. A decree was entered according to the prayer of the bill, and the case is brought here by William, the only brother of Isaac Tyson, deceased, claiming to have inherited all of the real estate of which his brother died seized, subject only to the right of dower in the widow. There is no question of fact controverted in the case, except as to an alleged election made by the widow to take by inheritance one half of the real estate. Upon this point, therefore, it maybe proper to advert more particularly to the evidence.
Mr. Burgess, an attorney at law, testifies that in February, 1847, he was consulted by Mary Tyson in relation to her late husband’s estate, and that he prepared for her a letter addressed to the defendant, William Tyson, and also a power of attorney for him to execute, authorizing some one to act for him in relation to his interest in the said estate. These he gave to Mrs. Tyson, who took them away with her. The testimony of Mr. Neely shows that he mailed this letter to Liverpool, the place of residence of William Tyson, to whom it was directed, together with one written by him and signed by Mary Tyson to her brother-in-law on the same subject, inclosing also the power of attorney prepared by Mr, Burgess; and it satisfactorily appears in the record, that this package was received by Mr. Tyson in the due course of mail. In the letter which Mr. Burgess wrote, he professed to act as the legal adviser of Mrs. Tyson. It states that Isaac Tyson died seized of the real estate situate in Boone county, of which. a description was sent; that he died intestate, leaving a widow but no descendants; and that in such case, by the laws of this State, the widow inherits one half of the real and all of the personal estate, and that William Tyson, the only brother of the deceased, would inherit the other half of the real estate. ■ It also states that by the laws of this State aliens may inherit and hold lands. It suggests that William Tyson may wish to dispose of his interests in the premises, or, at any rate, that they should be divided; and points out the course, which he should pursue, should he desire to do so. The record does not contain a copy of the letter which Mr. Neely wrote for Mrs. Tyson to her brother-in-law, but in his testimony he gave the substance of it without objection. Mr. Neely states that the letter which he wrote contained in substance the same as that of Mr. Burgess. He says, “ I wrote to him, in this same letter, that she wanted her half of the land in controversy, which half she was entitled to. Also, in substance, that she was entitled to one half of the land, and he to the other half; and if he was disposed to give her the other, half of the land, the papers showed how it was to be done.”. No proceedings were ever instituted in any court by Mary Tyson for the purpose of making any election, nor for any other purpose, from which an election in that mode might be inferred ; but if it was competent for her to make an election in pais, I think' the proof clearly shows that she did make such election with sufficient distinctness. She wrote to the other heir, “ that she wanted her half of the land.” By this she certainly expressed to him, who was the only other person interested, that it was her determination and design to take, have, and enjoy one half of the land of which her husband died seized, without, it is true, manifesting a design of relinquishing her dower; for that land was the subject of both communications, and I am of opinion that if the widow was bound to elect to take one half of the land, to entitle her to hold it, that such election or choice might"be made in pais, and that here is sufficient evidence of such election, which was brought home to the party to be affected by the election, and who was entitled to the other half. I can see no necessity for the expense and delay of a formal proceeding in court against a party out of its jurisdiction and resident in a foreign country, for the purpose of signifying to him who alone could be interested in the fact, that she intended to take one half of the estate, when a direct communication to him in a tangible form, which she could not afterwards contradict or retract, of her intention and choice, had been given. Such a notice would sub-serve a much more beneficial purpose to him than would the mere imaginary notice of a proceeding in some court, of which, in all human probability, he would know nothing. If she must make her election by some legal proceeding, it may well be asked, whether the Circuit or the Probate Court is the proper forum, or in what court she should proceed ? — what sort of a suit shall be instituted?—shall it be in chancery or at common law ?—who shall be made parties, and how shall they be brought into court? I confess that I should feel unable to give safe advice on these questions.
But we think the rights of the widow stand upon higher grounds than that of any election, and upon those grounds we choose to place our decision.
The forty-sixth section of our statute of wills, which is a reenactment of the forty-third section of the act of the 23d of January, 1829, provides as follows: “ When there shall be a widow, and no child or children, or descendants of a child or children of the intestate, then the one half of the real estate and the whole of the personal estate shall go to such widow, as her exclusive estate forever, subject to her absolute disposition and control, to be governed in all respects by the same rules and regulations as are or may be provided in cases of femes sole.” This is a part of the section which regulates the course of descent in this State; and by it we all agree the widow is made the heir of the husband, from whom she inherits the one half of the real and the whole of the personal estate. Upon his decease, the title immediately vested in her, as much, and to the same extent, as did the other half in the other heirs, and this, too, without any act or even volition on her part. Nor was her right to dower in the other half in the least thereby impaired or abridged; for the last words of the section are, “ saving to the widow, in all cases, her dower, as provided by law.”
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Catón, J.
On the 17th of September, 1846, Isaac Tyson, of Bonne county, departed this life intestate, leaving Mary Tyson, his widow, and William Tyson, an only brother, who resided in England. He left neither children nor the descendants of children. No administration was taken out upon the estate, but the widow paid the debts out of the personal estate. He left a considerable real estate situated in Boone county. On the 16th of August, 1847, Mary Tyson departed this life intestate, leaving the complainants her only heirs at law. The bill alleges that Mary Tyson did not, during her lifetime, elect to take her dower in the premises of which her husband had died seized, nor did she in any way relinquish her inheritance therein, but elected to take by inheritance. The bill also claims that she did, upon the decease of her husband, inherit one half of the real estate and all of the personal estate of which he died seized. The complainants claim to have inherited one half of the real estate from Mary Tyson, and the bill seeks a partition of the premises according to the respective rights of the parties. A decree was entered according to the prayer of the bill, and the case is brought here by William, the only brother of Isaac Tyson, deceased, claiming to have inherited all of the real estate of which his brother died seized, subject only to the right of dower in the widow. There is no question of fact controverted in the case, except as to an alleged election made by the widow to take by inheritance one half of the real estate. Upon this point, therefore, it maybe proper to advert more particularly to the evidence.
Mr. Burgess, an attorney at law, testifies that in February, 1847, he was consulted by Mary Tyson in relation to her late husband’s estate, and that he prepared for her a letter addressed to the defendant, William Tyson, and also a power of attorney for him to execute, authorizing some one to act for him in relation to his interest in the said estate. These he gave to Mrs. Tyson, who took them away with her. The testimony of Mr. Neely shows that he mailed this letter to Liverpool, the place of residence of William Tyson, to whom it was directed, together with one written by him and signed by Mary Tyson to her brother-in-law on the same subject, inclosing also the power of attorney prepared by Mr, Burgess; and it satisfactorily appears in the record, that this package was received by Mr. Tyson in the due course of mail. In the letter which Mr. Burgess wrote, he professed to act as the legal adviser of Mrs. Tyson. It states that Isaac Tyson died seized of the real estate situate in Boone county, of which. a description was sent; that he died intestate, leaving a widow but no descendants; and that in such case, by the laws of this State, the widow inherits one half of the real and all of the personal estate, and that William Tyson, the only brother of the deceased, would inherit the other half of the real estate. ■ It also states that by the laws of this State aliens may inherit and hold lands. It suggests that William Tyson may wish to dispose of his interests in the premises, or, at any rate, that they should be divided; and points out the course, which he should pursue, should he desire to do so. The record does not contain a copy of the letter which Mr. Neely wrote for Mrs. Tyson to her brother-in-law, but in his testimony he gave the substance of it without objection. Mr. Neely states that the letter which he wrote contained in substance the same as that of Mr. Burgess. He says, “ I wrote to him, in this same letter, that she wanted her half of the land in controversy, which half she was entitled to. Also, in substance, that she was entitled to one half of the land, and he to the other half; and if he was disposed to give her the other, half of the land, the papers showed how it was to be done.”. No proceedings were ever instituted in any court by Mary Tyson for the purpose of making any election, nor for any other purpose, from which an election in that mode might be inferred ; but if it was competent for her to make an election in pais, I think' the proof clearly shows that she did make such election with sufficient distinctness. She wrote to the other heir, “ that she wanted her half of the land.” By this she certainly expressed to him, who was the only other person interested, that it was her determination and design to take, have, and enjoy one half of the land of which her husband died seized, without, it is true, manifesting a design of relinquishing her dower; for that land was the subject of both communications, and I am of opinion that if the widow was bound to elect to take one half of the land, to entitle her to hold it, that such election or choice might"be made in pais, and that here is sufficient evidence of such election, which was brought home to the party to be affected by the election, and who was entitled to the other half. I can see no necessity for the expense and delay of a formal proceeding in court against a party out of its jurisdiction and resident in a foreign country, for the purpose of signifying to him who alone could be interested in the fact, that she intended to take one half of the estate, when a direct communication to him in a tangible form, which she could not afterwards contradict or retract, of her intention and choice, had been given. Such a notice would sub-serve a much more beneficial purpose to him than would the mere imaginary notice of a proceeding in some court, of which, in all human probability, he would know nothing. If she must make her election by some legal proceeding, it may well be asked, whether the Circuit or the Probate Court is the proper forum, or in what court she should proceed ? — what sort of a suit shall be instituted?—shall it be in chancery or at common law ?—who shall be made parties, and how shall they be brought into court? I confess that I should feel unable to give safe advice on these questions.
But we think the rights of the widow stand upon higher grounds than that of any election, and upon those grounds we choose to place our decision.
The forty-sixth section of our statute of wills, which is a reenactment of the forty-third section of the act of the 23d of January, 1829, provides as follows: “ When there shall be a widow, and no child or children, or descendants of a child or children of the intestate, then the one half of the real estate and the whole of the personal estate shall go to such widow, as her exclusive estate forever, subject to her absolute disposition and control, to be governed in all respects by the same rules and regulations as are or may be provided in cases of femes sole.” This is a part of the section which regulates the course of descent in this State; and by it we all agree the widow is made the heir of the husband, from whom she inherits the one half of the real and the whole of the personal estate. Upon his decease, the title immediately vested in her, as much, and to the same extent, as did the other half in the other heirs, and this, too, without any act or even volition on her part. Nor was her right to dower in the other half in the least thereby impaired or abridged; for the last words of the section are, “ saving to the widow, in all cases, her dower, as provided by law.”
That such are the provisions of the old law is too plain to require the least discussion; and the only remaining question that we shall examine is, whether this provision has been repealed by the fifteenth section of the thirty-fourth chapter Rev. Stat., entitled “ Dower.” That section was first introduced into our law in the revision of 1845, in which was reenacted the statute first quoted, in the 46th section of chapter 109 Revised Statutes, entitled “ Wills.” The 15th section of the dower act is as follows: “ If a husband die leaving a widow, but no children nor descendants of children, such widow may, if she elect, have, in lieu of her dower in the estate, of which her husband died seized, whether the same shall have been assigned or not, absolutely in her own right, as if she were sole, one half of all real estate which shall remain after the payment of all just debts and claims against the deceased husband. Provided, that, in case dower in such real estate shall have been already assigned, she shall make such new election within two days after being notified of the payment of such debts and claims.” • That this section was introduced into the Revised Statutes under a misapprehension as to what the widow’s rights were, as secured by the former law, there can be no doubt. The manifest object of this law was to extend the rights of the widow, and not to curtail them, which would be the case should this be held to repeal the former law, and to contract thetn within the limits- here prescribed. This section was introduced with the evident intention of benefiting the widow, and not for the purpose of injuring her. The phraseology in which the provisions of this section is expressed shows that it was enacted for the benefit of the widow, and that the legislature supposed1 that, without it, her rights were more limited than with it. The provison is, that she “ may, if she elect, have, in lieu of dower,” &c. Now here, it will be seen, that affirmative action on her part is made necessary to give effect to the law, or to put it in operation, with the manifest expectation that the advantages presented in the law would be sufficient, in certain cases, to prompt the widow to make the election; and that, when she did not think it to her advantage to make the election, or rather “ such new election,” her rights were to be determined by the law as it stood before. The proviso speaks of a new election, which presupposes a previous election to have been made to take dower, by which it was manifestly supposed she would have abandoned or relinquished her inheritance. Whereas, as we have already seen, that she was entitled to dower and the inheritance; nor was any election or other affirmative action, on her part, required to secure to her these rights, but they were cast upon her by force of the law itself. Nor does the 15th section of the chapter concerning dower make any allusion to, or provision concerning, the personal estate, the whole of which she inherits under the law of 1829, which was manifestly overlooked in the adoption of the new law. Had it been the intention of the legislature to deprive the widow of this or any other right already secured to her, they would have clearly expressed it by affirmative provisions, and not left it to doubtful implication. The provisions of the fifteenth section are not, that she shall have no more than is therein provided for her; but, in the event she elects to take it, she shall have that much. Supposing that there was no law authorizing the widow to take both dower and one half of the .real estate, and apprehending that she might, under the erroneous supposition that there were debts to exhaust the estate, improvidently elect to take dower, which would be unaffected by the debts, instead of the one half of the real estate which would be left after the payment of the debts, this provision was inserted, authorizing her to determine which she would take, after she was enabled to determine, upon the settlement of the estate, which was most valuable to her. Believing that, as the law then stood, sound policy required affirmative legislation to extend the widow’s rights, the law was passed granting her this much, when it is by no means certain that, had the extent of her previous rights been fully understood, that the legislature would have felt called upon to take from her what had been previously secured, and limit her rights to what was then affirmatively granted. We ought not to hold, unless compelled by some inflexible rule of law, that the legislature have undesignedly repealed the former law, and thus unintentionally abridged the widow’s rights, when it was their design to extend them. In this statute there is no repealing clause, nor any expression manifesting any design to repeal or limit any former law; and we ought not, in such a case, to hold that there was a repeal by implication. When we hold a statute to be repealed by implication, we do it as much in obedience to legislative will as where it is repealed by an express provision to that effect. The mere supposition .by the legislature, to be inferred - from a law which they have passed, that the' previous law is different from what it in truth is, does not make the law as they supposed it was, or different from what it was in truth. Because there was no intention to repeal the former law; and because there was no affirmative provison of the new law, which could not stand while the old law continued in force, there'was no repeal of the old law, the provisions of which the legislature had overlooked. This principle is illustrated in the opinion of Lord Chief Justice North and the other judges, in answer to a question put to them by the Privy Council, reported by Sir Thomas Raymond, at page 397. There a perpetual law had been passed, granting certain revenue out of strong liquors; and subsequently another law was passed, granting the same' revenue for two years ; and it was held that the last law did not repeal the first, but that the latter continued after the expiration of the former. “According to the case of the prices of wine, Hob. 215, where, by 37 Henry 8, chap. 23, a perpetual law was made for settling prices of wine; then, by the statute of 5 Edward 6, the said perpetual act (through the inadvertence of parliament) was continued, amongst other acts, till the end of the parliament, which continuance was resolved to be idle as to that act; for an affirmative continuance of a perpetual statute cannot work an abrogation thereof.” The copy of Hobart which we have does not contain a full report of this case, but this reference to it may undoubtedly be relied upon; and it is certainly a very strong case against a repeal by implication, where the legislature acted in ignorance of the provisions of the former law; for, by exj pressly providing that the old law should continue to the end of the parliament, a pretty strong implication is raised, that they did not intend that it should continue longer. But, as the new law was designed to extend the provisions. of the old one, it should not be held to restrict them. But we have a very strong case in our own reports, showing that a law passed under a misapprehension of the provisons of a former law, does not change or control the construction of the former law, and that, too, when the new law was of the highest and most obligatory character — the State Constitution. I refer to the case of Boon v. Juliet, 1 Scam. 258. By virtue of the territorial laws, the owners of slaves were authorized to introduce them into this territory, and hold them to service here, by registering those under the age of fifteen years with the clerk of the Circuit Court; but those over that age were required to enter into indentures with the master before the same clerk, and in case of their refusal to do so, the owner was allowed a certain time to remove them from the State. And the territorial laws further provided, that children born of registered servants should serve the owners of the mothers, — males till the age of thirty, and females till the age of twenty-eight years. No provision, however, was made subjecting the children of registered servants to any period of service whatever.. Thus stood the law at the time of the adoption of our first Constitution, in 1819. The third section of the sixth article of that Constitution declared, that both the registered and indentured servants should serve out the time appointed by their contracts of indenture, or the laws under which they were registered; but it provided, that children thereafter born of either class of servants should become free, — the males at the age of twenty-one years, and females at the age of eighteen years. Although here was a pregnant inference, that it was the design of those who framed and of those who adopted that Constitution, that the children of both classes of parents should serve the owners of their mothers till the ternfwhen the Constitution provided that they should become free; yet it was held that, as the Constitution was framed and adopted under a manifest misapprehension of the preexisting laws, it should not be so construed as to subject the children of registered servants to the term of service contemplated in the Constitution; and this, upon the ground that the provision in the Constitution was designed to favor the children of registered and indentured servants, and that it should not be construed so as to prove prejudicial to them. The court said, “ it was intended by the framers of the Constitution as a limitation on the supposed preexisting right of the master to the service of the children of registered servants for a greater period of time, and designed as an exception in favor of such children, founded, it is true, on the mistaken supposition that, under the territorial laws, they had been subjected to a greater period of service; and not as creating a liability to service, and rendering a class of persons, evidently free at their birth, the subjects of a laborious and extended period of servitude. It is most manifest, that this proviso was framed under such a view, and intended as a mere limitation on the imagined right of the master to the service of the children.” It must be remembered, that it had already been decided, in the case of Phebe v. Jay, (Breese, 207,) that it was competent for the State Constitution to reduce freemen to a state of slavery;