Adams v. Adams
39 Ala. 603
Ala.
1865
Check Treatment
STONE, J.

We think that, under tbe decision pronounced in tbis case when it was before us at a former term, tbe probate court has no jurisdiction of tbe question *605raised by tbe petition. Speaking of the claim made by the petitioner, we then said, “ Having made an election, she must abide by it as long as she retains the legacy which she has received. If she has been defrauded, or if she has made an unadvised election, her remedy is in equity, to obtain relief upon the restoration of the benefit she has taken under the will.” In the amended petition, after stating that her deceased husband had left a will, which was duly admitted to probate, and letters testamentary granted thereon, the petitioner avers, “ that she received the legacy given her by the will of her said husband, with the exception of $250, which she tenders to the court, or the contestants, with the exception of a negro who died in her possession, named Eissie, and she tenders the reasonable value of said slave.” The plain construction of the petition as amended is, that Mrs. Adams took under the will, to the extent of the legacy therein bequeathed to her, except $250; and that she retained such legacy in her hands, at the time she filed her petition. This makes the precise case in which we said, in our former opinion, “ if she has been defrauded, or if she has made an unadvised election, her remedy is in equity.” She certainly has made an election, and has received and still holds the fruits of that election. Until the property is restored, she cannot have her legal dower and distributive share allotted to her. She cannot take both under and against the will.—McReynolds v. Jones, 30 Ala. 101. In a case like the present, it is manifest that, if the dowress has, unadvisedly, or by fraud, been drawn into a premature election, the court of probate is not clothed with the requisite power and machinery to do equity between the parties, and to do justice to her and the parties in adverse.interest. Her remedy, if she has any, is alone in equity.

In what we have said, we look alone to the averments of the petition. The proof which was made on the first trial, and which was found in the record when it was before us at a former term, is not in this record. Hence, it is not for us to say whether Mrs. Adams can obtain relief in any court.—See Adams v. Adams, at January term, 1864.

[2.] When the petition was amended, it presented a new *606complaint, or cause of action, to which the respondent or defendant was authorized to plead anew, irrespective o£ the state of the pleadings to the original complaint; and this, without withdrawing, or asking leave to withdraw, his pleas to the original petition. The amended petition was not the original petition, to which those pleas were applicable. This case is not governed by the principle settled! in the cases of Gayle v. Smith, Minor, 83; and Taylor v. Rhea, ib. 414.

Judgment of the probate court affirmed.