Ex parte Moore

8 Miss. 665 | Miss. | 1843

Mr. Justice Clayton.

The will of John B. Moore, deceased, was admitted to probate in the proper court in Marshall county, on the 24th of June, 1840; on the 28th of December following, his widow Delilah transmitted to the court a written renunciation of the provisions made for her by the will, and elected to take her legal share of the estate. The probate court refused to receive the renunciation, because it was not offered in six months from the probate of the will, and the cause comes up by appeal to this court.

This single point only is presented for decision. We have been able to find no direct authority, and have therefore to settle it upon principle.

The time within which the widow is required to transmit her renunciation to the court had in this instance clearly elapsed before it was done. The six months and some two or three additional days had expired. It is a dangerous experiment to extend the terms of a statute by construction beyond their obvious import. In attempting thus to moderate the apparent rigor of a rule, we may do more mischief than by a strict adherence to it. It would tend to destroy the certainty of the law, and thereby increase litigation and disturb the repose of society. It is true, that in this case the stretch is small, extending only to two or three days ; but there must be some fixed point, some settled boundary; and place it where we may, it is liable to exclude some claim perhaps equally meritorious with this. It is better therefore to abide by the law as it is written, than to create exceptions without being able to foresee where they may end.

It is contended, with much plausibility, that as the law requires monthly sessions of the probate court to be holden, it was the intention of the legislature that the widow should have six terms of that court, including the one at which the will was proved, within which to renounce.

This interpretation is injurious, but may perhaps partake, too much of refinement to be adopted in a system which requires the obvious meaning and common acceptation of words to be adhered to, in their construction. The statute uses the term months, and it implies a good deal of latitude to say that it means the sessions of a court. H. & H. 350, 1.

We regret that the widow did not in this case pursue her rights in time to secure them, but we are not permitted to yield to our sympathies so far as to depart from the plain language of the statute.

Judgment affirmed.