McGrath v. McGrath's Admr's

38 Ala. 246 | Ala. | 1862

R. W. WALKER, J.

Sections 1609 and 1610 of the Code are in the following words:

“ § 1609. The widow may, in all eases, dissent from the will of her deceased husband, and, in’the place of the provision made for her by sucb will, take her dower in the lands, and of the personal estate such portion as she would have been entitled to in case of intestacy.

“ § 1610. Such dissent must be made in writing, and deposited, within one year from the probate of the will, with the judge of probate of the county in which the will is probated ; and an entry thereof, specifying the day on which the dissent was made, made of reeord."

Confining our decision to the precise facts of this case, we hold, that they show a substantial compliance with the foregoing provisions of the Code. Tbe widow executed and published her dissent in writing, and manifested her purpose to have it deposited with the probate judge, by handing it to a friend, with instructions to file it. Where a, widow, who has executed her dissent' in writing, manifests, by some unmistakable act, , her purpose to have it deposited with the,proper officer; within the time prescribed by law, and actually, sets .on foot measures to have it done, and then dies .before the'deposit is made, without having, prior to her death, indicated im-any way a desire to recall or revoke her dissent.; and the dissent is, after her death, but within twelve months after the probate of the will, deposited with the probate judge,, we think that the requisitions of the statute are satisfied. If the dissent had been simply .found among the papers*, of,¡the widow after, her death, and then*deposited ¡by her representative, orbysome third person; the question* presented, would have’been* very different. It will be time enough, to* decide that question when it arises.. For the present, we limit our decision to the facts of the case before us..

Decree affirmed.