In re McFarlin

Citations

• 9 Del. Ch. 430
• 75 A. 281
• 1910 Del. Ch. LEXIS 16

Syllabus

<p>The Orphans’ Court, in which the election of the widow not to take the provision for her in her husband’s will, but to have her dower rights in lieu thereof, was made and recorded, has jurisdiction to determine a petition of the widow to retract her election and to be restored to her rights under the will, and grant appropriate equitable relief to her under terms.</p> <p>A mistake by a party as to his antecedent existing legal rights, as distinguished from a mistake as to the legal import of the act done, furnishes a ground for equitable relief from th>e consequences of the mistake in cases where the mistake can be rectified without injury to the rights of others.</p> <p>Where an election is made under a misapprehension of the law as to her dower rights, even though the mistake resulted from the erroneous advice of her counsel, a widow, so electing to take the provisions made by law in lieu of that made for her under her deceased husband’s will, may be allowed to retract her election, where no rights of third persons who would be injured by a revocation have intervened.</p> <p>Where a widow, shortly after her husband’s death, voluntarily made a formal election in Court of the dower rights given to her by law in lieu of the provision of her husband’s will, being then-mistaken, through erroneous advice of her counsel, as to the nature of the dower rights, and supposing that under them she was entitled absolutely to one-half of the residue of her husband’s personalty after payment of his debts, as well as to hold for, life one-half of his real estate, whereas her dower rights were only to hold one-third of the real estate for life, with no interest in the personalty, she will be allowed to retract her election, in a case where no rights acquired subsequently to her election will be injuriously affected by a retraction.</p> <p>The costs of the proceeding will be taxed against the petitioner, the widow.</p> <p>An election is a designed choice of one thing rather than