Yorkly v. . Stinson

Smith, C. J., (after stating the facts). We attach no special significance to the fact that the plaintiff, with others, availed themselves of a clear legal right, possessed by every person interested in the result, to have the alleged testamentary paper propounded anew and proved per testes. The right to *239 require this in a proper manner, is conferred by law, and its exercise cannot be attended with the deprivation or impairment of other rights, because of an unsuccessful opposition to the script. It remains as if no resistance had been offered to the probate, for the- plaintiff to assert any just claim accruing to her under the will, when established, as to accept the provisions made for her by law upon her recorded dissent thereto. The ruling of the Court below, adverse to the object sought in the action, is based upon the inconsistency of her taking and using property given her by the testator, and her present attempt to annul and render the will inoperative, so far as affects herself. It assumes that she has made an election, and cannot now be heard to reverse it. There would be much force in this reasoning, if the administration had been conducted upon the faith of her adhesion to her declared purpose, to abide bjr the instrument, supported by her receiving the benefits it gives her, and dispositions made of the funds or obligations assumed, incompatible with the present claim, and which could not now be disturbed without loss or detriment to the executor, who relied upon her good faith in what was afterwards done. Such a case might furnish ground for an equitable estoppel against the right of dissent, and deny to her the statutory relief. But no such difficulties are suggested, and so far as appears, the return of the legacies and of rents for which the plaintiff may be liable, would restore the state of things existing at the original probate, and leave open the pathway to a due administration of the estate, without interfering with intermediate rights or interests of the personal representative or of others. The statute [The Code, §2108,) allows six months from probate within which a widow may make an election to take under the will, or against it under the law, and this period is given in order that she may fully learn the condition of the estate and the advantages to be derived under *240 the provisions made for her. as compared with those accruing, as in case of an intestacy, and thus to considerately and intelligently exercise her right to dissent. We do not find in the facts any just ground for depriving her of the statutory provision in her behalf, of which she has undertaken to avail herself within the time limited by law. The opinion of the Court was governed, we presume, by the decisions in Mendenhall v. Mendenhall, 8 Jones, 287, and Syme v. Badger, 92 N. C., 706, supposed to involve the same principle. But in those cases the estoppel was held to apply to a widow, who was appointed to execute the will, and of course in all of its provisions, and who accepted the office and undertook to carry out its directions, with which the legal effect of a dissent was wholly inconsistent. The subject is considered in the last cited case, and leaves nothing now to be added. But the case of Ramsour v. Ramsour, 63 N. C., 231, if not an authority, is in the line of the views we have taken of the present application. In that case the plaintiff, who demanded dower in the action, had in May, 1868, conveyed part of the land claimed to be subject to dower to one Baxter in payment of her individual debts; and in August following caused her dissent to the will to be entered, under the extension of the time for doing so allowed by the act of February 22d, 1866, (see Hinton v. Hinton, Phil., 410). The Court below ordered the writ of dower to issue, and this ruling was affirmed on appeal. We have not adverted to the haste with which the assent was given, nor to the unusual-promptness with which the legacies were paid over, apparently to confirm and conclude her election, as tending to deprive the plaintiff of the time given by law for an examination of an estate, its resources and liabilities, and an intelligent and careful reflection as to the course to be pursued under the circumstances. They cer *241 tainly do not indicate that deliberation in action which should conclude and estop her from the subsequent exercise of a legal right to make a different choice. At least we cannot, per se, give such force and effect to the simple facts set forth in the case before us. It must be declared there is error in the ruling, and the judgment must be reversed, and judgment rendered for the plaintiff; and to this end, and for further proceedings in the Court below, let this be certified. Error. Reversed.