Richardson v. . Justice

MONTGOMERY, <1. This was a special proceeding commenced before the Clerk of the Superior Court by the plaintiff against the heirs at law of her deceased husband for the allotment of her dower in his land. On the hearing of the matter in the Superior Court, it appeared that the petitioner, sopiewhat dissatisfied with the provisions of the will of her deceased husband, sis days after his death entered into a contract under seal with E. 0. Poe, the executor named in the will, by which she agreed to accept a proposition made to her by Poe to the effect that she would receive the sum of $728.84 to be paid her by the executor out of the first money coming into his hands as such executor — that amount to be outside of the provisions made in the will for the petitioner, and the petitioner to abide by the terms of the will. It also' appeared that the executor, Poe, had incurred no extra expense, had taken no steps in consequence of the contract between himself as executor and the petitioner, that nothing had been done by him except those things in the ordinary course of administration, and that he had not acted on the agreement so as to cause any loss to the estate. Five days after the contract and .eleven days after the death of the petitioner’s husband, this proceeding was begun. Upon the pleadings and the admitted facts his Honor was of the opinion that the petitioner was not concluded by the contract from entering and filing her dissent from the will, and that she was entitled to her dower. We think his Honor’s judgment should be affirmed. Our statute, sec. 2108 of The Code, allows a widow six months from the probate of the will of her husband within which to dissent. Clearly that time is allowed by the law to enable the widow to make an examination into *412 the value of the estate, the debts and liabilities, and for ber to come to an intelligent conclusion as to the course she should pursue under all the circumstances that surround her. The circumstances of this case do not show that deliberation and care on the part of the petitioner which would preclude her from the right, after she made the contract and within the time allowed by law, from making dissent to the will. The haste was great. So far as we can see she had no acquaintance with the affairs connected with the estate; there had been no statement made showing how the estate was affected as to the liabilities of the deceased husband. She had no information upon which she could form a judgment as to what course she should pursue. The proposition of settlement was made by the executor six days after the death of the husband and three days after the probate of the will. The record does not show any condition of facts which go to repel the idea that the widow did not have sufficient time after the probate of the will in which to make up an intelligent judgment as to her course, and we are brought to the conclusion under the circumstances of the case that she ought not to be concluded from dissenting to the will and from claiming her dower. The contention of the defendant’s counsel that the contract being under seal conclusively presumes that. it was made upon a good and sufficient consideration does not apply here. The entire contract is set out, the agreement of the petitioner and the consideration for that agreement, but it is nevertheless such a contract as the law will not enforce against the petitioner for the reasons we have stated. Affirmed.