COOPER, J.,
delivered the opinion of the court.
Reuben "Wright died on the 27th of May, 1869, leaving • a widow, complainant, Martha Wright, and eight children by a former wife. He left a will, the only provision of which for his widow is thus worded: “ I will to my wife Martha the tract of land she owned before our marriage, also the mare, and all the household furniture that she brought here, and also my buggy.” At the death of the testator, and for the two preceding years, the wife, Martha Wright, was of unsound mind, and so continued until the filing of this bill on the 31st of December, 1872. The bill was filed for dower in the lands of which the husband died seized and possessed, for the year’s allowance given by law, for a distributive share of the personalty, and for the value of exempted articles, upon the ground that she was thus entitled as if she had dissented from her husband’s will within the time prescribed by law. In the meantime the defendants, R. C. Wright and David West, who were appointed and had qualified as executors of the will, had sold the land and personalty and distributed the proceeds, after the payment of debts and the costs of administration, to the children of the' testator. They had, shortly after the testator’s death, delivered to the brother-in-law of Martha Wright, who had the custody of her person, the articles of personalty mentioned in the will, he giving a receipt therefor. The defendant, David West, had bought the land shortly after the testator’s death, and was in possession, and he was [80]*80made a defendant individually as well as in his capacity of executor.
The defendants answered the bill, and,, as executors, filed a cross-bill against the complainant and the children of the testator to have contribution from the latter out of the moneys paid them for the proportional part of each in any recovery had by the complainant. They also relied, as they had previously done in a demurrer which was overruled, upon the point that the widow had not dissented from the will within twelve months from the probate of the will, as required by the Code, sec. 2404, and could not do so by reason of her unsoundness of mind, and was thereby barred of all claim against the will. Some stress was also laid upon an alleged ante-nuptial parol settlement between Reuben and Martha Wright, by which the latter waived all right to her husband’s property. The Chancellor held that the complainant was entitled to the relief sought, subject to be charged with the value of the articles delivered under the will, which it appeared went to her benefit, and the defendants to a decree over, upon their cross-bill, against the children of the testator for their proportional part of the recovery. The defendants appealed.
Any ante-nuptial contract in parol was, of course, void under our statute of frauds. Code, sec. 1758, sub-sec. 3. Hackney v. Hackney, 8 Hum., 452. The rights of the parties turn upon the question whether a widow, who has not dissented from her husband’s will within the time prescribed by law because of un[81]*81soundness of mind, may, in equity, obtain relief “as if she had dissented.”
The doctrine of election of rights grow up independent of statute, and was applied in several classes of cases. One of these classes was that of a widow required to elect between the provisions of her husband’s will and her legal rights of dower at common law. She might be put to her election at law by express words (Gosling v. Warburton, Cro. Eliz., 128), and in equity by manifest implication. Birmingham v. Kirwan, 2 Scho. & Lef., 452; Whilder v. Whilder, Riley Ch., 205; Herbert v. Wren, 7 Cranch., 378; Adsit v. Adsit, 2 Johns. Ch., 448. But the difficulty of applying the principle of manifest implication led to uncertainty and confusion. To obviate this evil, in several of the States, statutes have been passed requiring the widow to elect, within a given time, between her husband’s bounty and her legal rights. 1 Wash, on Real Prop., 272. Among these statutes was the North Carolina act of 1784, 22, 8, which continued in force in this State, with slight modifications, until brought forward into the Code, with the modifying acts, in sections 2404 and 2405. That section was, in substance, that if the husband made a will without any express provision for his wife, by giving her such part of his real or personal estate, or to some other for her use, as shall be fully satisfactory to her, such widow might signify her dissent in open court within six months after the probate of the will, and in that case shall be entitled to dower in the lands of which the husband died seized and possessed, and one-third, [82]*82or a child’s part, of Ms personalty. Under this, and similar statutes, the decisions are that the right of election is ¡jersonal, and must be exercised strictly as required. Hinton v. Hinton, 6 Ired., 224; Harry v. Green, 9 Hum., 182; Collins v. Corman, 5 Md., 503. As a necessary sequence, if the widow be incapable of acting because of lunacy, it has been held that she cannot make a valid dissent, nor, of course, can her committee, if there be a committee. Lewis v. Lewis, 7 Ired., 72; Kennedy v. Johnston, 65 Penn. St., 451. This is in strict accord with the doctrine of election at common law, where it has been invariably held that a lunatic cannot elect. Ashby v. Palmer, 1 Mer., 296; In re Wharton, 5 De G. M. & G.—Nor can an infant. Carr v. Ellison, 2 Bro. C. C., 56; Van v. Barrett, 19 Ves., 102; Burr v. Sein, 1 Whart., 252, 265. And neither the committee of the lunatic, nor the guardian of the infant, can elect for the ward, the election being a judicial, not a ministerial act, and belonging to the court having jurisdiction. Turner v. Street, 2 Rand., 404; Ebbington v. Ebbington, 5 Mad., 117; Gretton v. Howard, 1 Swanst., 413. And persons thus under disability may be forced to elect at the instance of the executors or persons interested under the will. Vane v. Lord Dungannon, 2 Scho. & Lef., 118, 133; Wilson v. Townsend, 2 Ves. J., 696; Robertson v. Stephens, 1 Ired. Eq., 247; Addison v. Bewie, 2 Bland, 606, 623; Taylor v. Browne, 2 Leigh., 419. On principle, it would seem clear that the same rules would apply to an election required by statute, as to an election required by the common law.
[83]*83The doubt grows out of the limitation of the time within which the dissent is required by the statute to be made. In Lewis v. Lewis, 7 Ired., 72, and Kennedy v. Johnston, 65 Penn. St., 451, in both of which the lunatic widow, _by her committee, was attempting to assert a legal right upon the assumption of a valid dissent within the time prescribed, the court, while holding that neither the lunatic nor the committee could make a valid dissent, waive the consideration of the widow’s equitable rights in view of the impossibility of making a valid election, with an intimation that the questions belong exclusively to the court of chancery. The point is also pretermitted expressly by this court in Smart v. Waterhouse, 10 Yer., 103, because not directly raised by the facts of that case. I am unable to find any decision on the point. It seems to be entirely open.
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COOPER, J.,
delivered the opinion of the court.
Reuben "Wright died on the 27th of May, 1869, leaving • a widow, complainant, Martha Wright, and eight children by a former wife. He left a will, the only provision of which for his widow is thus worded: “ I will to my wife Martha the tract of land she owned before our marriage, also the mare, and all the household furniture that she brought here, and also my buggy.” At the death of the testator, and for the two preceding years, the wife, Martha Wright, was of unsound mind, and so continued until the filing of this bill on the 31st of December, 1872. The bill was filed for dower in the lands of which the husband died seized and possessed, for the year’s allowance given by law, for a distributive share of the personalty, and for the value of exempted articles, upon the ground that she was thus entitled as if she had dissented from her husband’s will within the time prescribed by law. In the meantime the defendants, R. C. Wright and David West, who were appointed and had qualified as executors of the will, had sold the land and personalty and distributed the proceeds, after the payment of debts and the costs of administration, to the children of the' testator. They had, shortly after the testator’s death, delivered to the brother-in-law of Martha Wright, who had the custody of her person, the articles of personalty mentioned in the will, he giving a receipt therefor. The defendant, David West, had bought the land shortly after the testator’s death, and was in possession, and he was [80]*80made a defendant individually as well as in his capacity of executor.
The defendants answered the bill, and,, as executors, filed a cross-bill against the complainant and the children of the testator to have contribution from the latter out of the moneys paid them for the proportional part of each in any recovery had by the complainant. They also relied, as they had previously done in a demurrer which was overruled, upon the point that the widow had not dissented from the will within twelve months from the probate of the will, as required by the Code, sec. 2404, and could not do so by reason of her unsoundness of mind, and was thereby barred of all claim against the will. Some stress was also laid upon an alleged ante-nuptial parol settlement between Reuben and Martha Wright, by which the latter waived all right to her husband’s property. The Chancellor held that the complainant was entitled to the relief sought, subject to be charged with the value of the articles delivered under the will, which it appeared went to her benefit, and the defendants to a decree over, upon their cross-bill, against the children of the testator for their proportional part of the recovery. The defendants appealed.
Any ante-nuptial contract in parol was, of course, void under our statute of frauds. Code, sec. 1758, sub-sec. 3. Hackney v. Hackney, 8 Hum., 452. The rights of the parties turn upon the question whether a widow, who has not dissented from her husband’s will within the time prescribed by law because of un[81]*81soundness of mind, may, in equity, obtain relief “as if she had dissented.”
The doctrine of election of rights grow up independent of statute, and was applied in several classes of cases. One of these classes was that of a widow required to elect between the provisions of her husband’s will and her legal rights of dower at common law. She might be put to her election at law by express words (Gosling v. Warburton, Cro. Eliz., 128), and in equity by manifest implication. Birmingham v. Kirwan, 2 Scho. & Lef., 452; Whilder v. Whilder, Riley Ch., 205; Herbert v. Wren, 7 Cranch., 378; Adsit v. Adsit, 2 Johns. Ch., 448. But the difficulty of applying the principle of manifest implication led to uncertainty and confusion. To obviate this evil, in several of the States, statutes have been passed requiring the widow to elect, within a given time, between her husband’s bounty and her legal rights. 1 Wash, on Real Prop., 272. Among these statutes was the North Carolina act of 1784, 22, 8, which continued in force in this State, with slight modifications, until brought forward into the Code, with the modifying acts, in sections 2404 and 2405. That section was, in substance, that if the husband made a will without any express provision for his wife, by giving her such part of his real or personal estate, or to some other for her use, as shall be fully satisfactory to her, such widow might signify her dissent in open court within six months after the probate of the will, and in that case shall be entitled to dower in the lands of which the husband died seized and possessed, and one-third, [82]*82or a child’s part, of Ms personalty. Under this, and similar statutes, the decisions are that the right of election is ¡jersonal, and must be exercised strictly as required. Hinton v. Hinton, 6 Ired., 224; Harry v. Green, 9 Hum., 182; Collins v. Corman, 5 Md., 503. As a necessary sequence, if the widow be incapable of acting because of lunacy, it has been held that she cannot make a valid dissent, nor, of course, can her committee, if there be a committee. Lewis v. Lewis, 7 Ired., 72; Kennedy v. Johnston, 65 Penn. St., 451. This is in strict accord with the doctrine of election at common law, where it has been invariably held that a lunatic cannot elect. Ashby v. Palmer, 1 Mer., 296; In re Wharton, 5 De G. M. & G.—Nor can an infant. Carr v. Ellison, 2 Bro. C. C., 56; Van v. Barrett, 19 Ves., 102; Burr v. Sein, 1 Whart., 252, 265. And neither the committee of the lunatic, nor the guardian of the infant, can elect for the ward, the election being a judicial, not a ministerial act, and belonging to the court having jurisdiction. Turner v. Street, 2 Rand., 404; Ebbington v. Ebbington, 5 Mad., 117; Gretton v. Howard, 1 Swanst., 413. And persons thus under disability may be forced to elect at the instance of the executors or persons interested under the will. Vane v. Lord Dungannon, 2 Scho. & Lef., 118, 133; Wilson v. Townsend, 2 Ves. J., 696; Robertson v. Stephens, 1 Ired. Eq., 247; Addison v. Bewie, 2 Bland, 606, 623; Taylor v. Browne, 2 Leigh., 419. On principle, it would seem clear that the same rules would apply to an election required by statute, as to an election required by the common law.
[83]*83The doubt grows out of the limitation of the time within which the dissent is required by the statute to be made. In Lewis v. Lewis, 7 Ired., 72, and Kennedy v. Johnston, 65 Penn. St., 451, in both of which the lunatic widow, _by her committee, was attempting to assert a legal right upon the assumption of a valid dissent within the time prescribed, the court, while holding that neither the lunatic nor the committee could make a valid dissent, waive the consideration of the widow’s equitable rights in view of the impossibility of making a valid election, with an intimation that the questions belong exclusively to the court of chancery. The point is also pretermitted expressly by this court in Smart v. Waterhouse, 10 Yer., 103, because not directly raised by the facts of that case. I am unable to find any decision on the point. It seems to be entirely open. But, in principle, it presents, I think, no serious difficulty.
These statutes, and notably the provisions of the Code, require an exercise of the mind by a competent person, with knowledge of the facts. The very act of' election implies these requisites, and it was so held by the courts on general principle. The Code, sec. 2405, expressly requires the personal representative of the estate, upon the application of the widow, to disclose the condition of the estate, to enable her to act as her interest may require. Of course, if she cannot dissent because of her want of capacity, she cannot make this application. To hold that she is deprived of her election, when she could not possibly make it, would be an unsatisfactory construction of a [84]*84statute which manifestly contemplates an intelligent election. If, independent of the statute, a testator were to make provision for his wife, saying in so many words that it was in lieu of dower, and were to require an election by her within .twelve months after the probate of his will, it would scarcely be argued that the wife, if an infant or a lunatic, would be barred by the failure to elect within the time. The only object of the statute was to limit the period of the widow’s election, not to change in other respects the well-settled principles of law on the subject. And, although the limitation is, in some respects, analogous to the statutes of limitations, it differs from those statutes in one essential particular. A suit may be brought at any time, and by any person, to assert the rights of an infant or a lunatic in the courts of law, whereas the election of a widow, as we have seen, cannot be made by a lunatic, nor by any person for her. Construing the statute literally, she is utterly without remedy, and if the statute be equitably interpreted, to allow an election by the court for the lunatic under a bill commenced by a committee, or next friend, within the year, the letter is departed from, and equity must equally interpose if satisfied that the lunatic had no committee, and no next friend to sue for her.
But this court has decided that the statute is not so inflexible as the literal interpretation would imply. In Smart v. Waterhouse, 10 Yer., 94, it was held that a widow, who had been prevented from making her election within the year by the fraudulent conduct of those interested in the estate, might afterward assert [85]*85ber rights “as though she had dissented in time.” And if she may thus avoid the letter of the law by reason oí the strong equity of the particular circumstances, there is no insuperable difficulty in granting the same relief, upon well established equitable principles, where the equity is stronger.' There, the widow might, by calling in the aid of third persons or counsel, have ascertained the facts, and made an intelligent election. Here, she was incapable of electing, incapable of consulting others, without any committee, and, it seems, without' any friends to act for her. It is impossible to conceive of a stronger array of equitable circumstances to justify the court of chancery in now asserting her rights “as though she had dissented in time.” Nor am I able to see any serious evil which can arise from the exercise of so plain an equity. The executor who is compelled to settle with a lunatic devisee or legatee, without a committee, must necessarily come into equity for protection. He would have been under the necessity of so doing, before the statute, if the testator had made an express provision for his widow in lieu of dower, and she had been a lunatic. And he may clearly do so since the statute. If he and the persons taking under the will choose to act otherwise, they do so at their peril, as they would in any other case where there is an infant or lunatic devisee without guardian or committee. Mere delay, and the negligence of friends, this court has held, will not be allowed to prejudice the rights of one in no condition of mind to know or assert them. Alston v. Boyd, 6 Hum., 504.
[86]*86There is no error in the Chancellor’s decree, and it is affirmed with costs. The complainant has, it seems, died since the appeal to this court, and the allotment of dower is no longer required. The necessary accounts can, probably, be taken on the evidence in the record without remanding or the cost of additional proof.