The widow, upon dissent, takes such portion of the deceased husband's estate as she would have taken if he had died intestate. Code 1940, Tit. 61, § 18; McReynolds v. Jones, 30 Ala. 101; Stelzenmuller v. Carroll, 272 Ala. 13, 127 So.2d 842; Dean v. Hart, 62 Ala. 308; Cogburn v. Callier, 213 Ala. 38, 104 So. 328; Dorsey v. Dorsey, 224 Ala. 496, 140 So. 540. Upon death of husband intestate the surviving widow takes his realty in fee if husband left surviving him no children or their descendants, neither parent, and no brothers or sisters or their descendants. Code 1940, Tit. 16, § 1.
The purpose of the law giving a widow a right to dissent from her husband's will is to deny to the husband the power to make a will giving to his wife less estate than she would take without a will and to place the widow's claims entirely beyond the husband's control. McReynolds v. Jones, 30 Ala. 101; Cook v. Morton, 241 Ala. 188, 1 So.2d 890; Dorsey v. Dorsey, 224 Ala. 496, 140 So. 540; Merchants' Nat. Bank v. Hubbard, 222 Ala. 518, 133 So. 723, 74 A.L.R. 646. The purpose and intent of § 21, Title 61 of the Code is to provide a means for an incompetent widow to exercise her right to dissent from her husband's will. Crenshaw v. Carpenter, 69 Ala. 572.
As has been stated, the precise question now decided seems never before to have been presented to this court, but it has been considered in many cases in other jurisdictions, and decided in accordance with the views here expressed. Barnett's Adm'r v. Barnett's Adm'r, 1 Metc. (Ky.), 256; McReynolds v. Jones, 30 Ala. 101; James v. Hanks, 202 Ill. 114, 66 N.E. 1034; Brink v. Layton, 2 Redf. (N.Y.), 79; Asche v. Asche, 113 N.Y. 232, 21 N.E. 70; Re Thomas (1886), L.R. 34 Ch. Div. 166; Lacey v. Hill (1875), L.R. 19 Eq. 346; Cunningham's Estate, 137 Pa. 621, 628, 20 A. 714; Jarman, Wills (7th Ed.), 684. Decree reversed, and cause remanded for a decree in accordance with this opinion, with costs.
The bill admitting facts which show affirmatively that complainant elected to accept the probated will, and thus being estopped, the bill is without equity. Bigelow (Carter) on Estoppel (6th Ed.) 732; Creamer v. Holbrook, 99 Ala. 52, 11 So. 830; McReynolds v. Jones, 30 Ala. 101; Robinson v. Pebworth, 71 Ala. 240; Butler v. O'Brien, 5 Ala. 316; Morris v. Hall, 41 Ala. 510. BROWN, J.
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.
Where the bill of exceptions does not purport to contain all the evidence on appeal, it will be presumed the affirmative charge was warranted by the proof. McElhaney v. State, 24 Ala. 71; Doe v. Goodwin, 30 Ala. 242; Barnes v. Mobley, 21 Ala. 232; McReynolds v. Jones, 30 Ala. 104; 7 Mayf. Dig. 134. SAYRE, J.