Roberts v. Roberts

34 Miss. 322 | Miss. | 1857

Fisher, J.,

delivered the opinion of the court.

This was a petition filed by the appellant, in the Probate Court of Rankin county,- alleging that she is the widow of James Roberts, deceased. That the deceased left a will, by which he bequeathed his estate to certain persons therein named, failing and omitting to bequeath to the appellant any portion of his estate; that she is entitled, as the widow of the testator, to one-fifth of his estate, under the law, as her portion. That the executor has made a final settlement of the estate, but that she was not legally notified of the same, and is not therefore bound by the action of the court in discharging the executor. The various proceedings of the court, from the probate of the will to the final settlement of the estate, are made exhibits to the petition, and by which it does not appear that the petitioner was otherwise notified of the final settlement, than by a notice published in a newspaper at Brandon, although she alleges that she resided in Rankin county, where the estate was administered.

The appellees appeared, and demurred to the petition, and the court below sustained the demurrer, and from this decree the present appeal has been prosecuted. ,

The first point to be considered is, whether the notice published in the newspaper, as above stated, was sufficient to make the appellant a party to the proceedings for a final settlement. She resided in the county, and being within the jurisdiction of the court, she could only be made a party by the service of process. Hutch. Code, 683, see. 3.

Second. The testator wholly failing by his will to provide for his wife* she is entitled to her portion under the law, as in case of in■testacy. She was only required to renounce the provision, in the event of the will making a provision for her, and she could not renounce that which was not given, or make an election between a legacy and her portion under the law, when no legacy was given. The statute on this subject is too plain to admit of doubt or construction. Hutch. Code, 620. It is only where something-is bequeathed that she is required to renounce, or is barred of her legal share.

In conclusion,'we will only remark, that even admitting that the Statute of Limitations would apply to this case, it would only begin to run from the date of the final settlement, and having been made only a few months since, of course no bar has yet attached.

Decree reversed, demurrer overruled, and cause remanded.

A petition for reargument was filed, but the reargument was refused.