Opinion
8 Div. 896.
March 24, 1927. Rehearing Denied June 2, 1927.
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
D. P. Wimberly, John F. Proctor, and Ernest Parks, all of Scottsboro, for appellants.
Homestead and exemption rights are personal privileges which may be waived. Chamboredon v. Fayet, 176 Ala. 218, 57 So. 845. It was not necessary that the agreement of the widow be supported by a separate consideration. 40 Cyc. 1983; Hodge v. Joy, 207 Ala. 198, 92 So. 171. The testator may so frame his will that the widow cannot have the benefits thereby given and those of the statute also. 20 Cyc. 1970; 4 A.L.R. 391. She must take under the will or renounce it. Pearson v. Darrington, 32 Ala. 240; McReynolds v. Jones, 30 Ala. 101; Ralls v. Johnson, 200 Ala. 178, 75 So. 926.
John B. Tally, of Scottsboro, and John L. Hackworth, of Bridgeport, for appellee.
The widow of a testator is not required to dissent from the will of her husband to claim the provisions the law has made for her, nor can the testator deprive her of the right by any testamentary disposition he may make of it. Hubbard v. Russell, 73 Ala. 578; Bell v. Bell, 84 Ala. 64, 4 So. 189; Chandler v. Chandler, 87 Ala. 300, 6 So. 153; Richter v. Richter, 180 Ala. 218, 60 So. 880.
Whatever the rule may be in other states, it is well settled by the decisions of this court that, while the failure of the widow to dissent from her husband's will precludes her from claiming dower or a distributive share in her husband's estate, such failure does not cut off her right to the exemptions given her under the law when seasonably claimed. Hubbard v. Russell, 73 Ala. 578; Bell v. Bell, 84 Ala. 64, 4 So. 189; Chandler v. Chandler, 87 Ala. 303, 6 So. 153; Richter v. Richter, 180 Ala. 218, 60 So. 880. Therefore the widow in the instant case is entitled to the exemption claimed unless she has waived the same by her agreement, Exhibit B to the bill, wherein she agreed to accept the legacy and the personal property, which was less than $1,000, in lieu of anything else, including her homestead exemption. The trial court held that this agreement was without consideration and was a nudum pactum because she got only what she was entitled to as to the personal property. True, the personal property being less than $1,000, she was entitled to it and did not have to account for same upon final settlement of the estate whether solvent or insolvent. Section 7922 of the Code of 1923, which has undergone a change from what it was as section 4200 in the Code of 1907. Therefore she was entitled to hold under the law what she got under the agreement, which was without consideration.
It is insisted that, while the foregoing is sound as to the failure of the widow to dissent, she cannot take under the will, which provides a legacy in lieu of exemptions, and at the same time claim the exemption also. In other words, if she claims the legacy, she is equitably estopped from claiming the exemption. This question was expressly left open in the case of Bell v. Bell, 84 Ala. 64, 4 So. 189. But the case of Richter v. Richter, 180 Ala. 218, 60 So. 880, holds that the widow was entitled to the legacy as well as the exemption, and that the attempt to exclude the exemption was vain and of no effect.
Again, we do not see how an equitable estoppel can be set up against the widow in the instant case, under the terms of the agreement or release signed by her. It expressly says:
"That whereas I am fully informed that I am entitled to a homestead and certain personal property in addition to the legacy under the will."
She could not therefore be estopped from her exemptions upon the theory that she was getting the legacy in lieu of same, as the said agreement recites that she was informed that she was entitled to both. In other words, the parties seem to have construed the will as giving the legacy in lieu of dower or a distributive share in the estate, but not in lieu of her exemptions, and we agree to this construction. The release shows upon its face that the widow was giving up something to which she was entitled, and was not getting anything in place of same to which she was not entitled and which was properly held to be a nudum pactum by the trial court.
The decree of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.