other provision of her husband's will, Loring v. Craft, 16 Ind. 110; Smith v. Smith, 76 Ind. 236; Whiteman v. Swem, 71 Ind. 530; Nelson v. Wilson, 61 Ind. 255; Estate of Peebles, 157 Pa. St. 605; Compher v. Compher, 25 Pa. St. 31; Matter of Klosterman, 6 Mo. Ap. 314; Vedder v. Saxton, 46 Barb. 188; Matter of Walkerly, 77 Cal. 642; but not where the will is inconsistent with such action, Langley v. Mayhew, 107 Ind. 198; e. g., by disposing of his entire personal property, Matter of Tobin, 40 N. Y. S. R. 366; Miller v. Stepper, 32 Mich. 194; Shafer v. Shafer, 129 Ind. 394; although this has been held not to be inconsistent, in Shipman v. Keys, 127 Ind. 353. So, a bequest in lieu of the "personal property allowed by law" has been held to refer to and bar the exempted personal property, but not to affect the general distributive share of the widow. Kinney v. Kinney, 34 Mich. 250. So, a legacy in lieu of dower "and all claims and rights as my widow" defeats the exemption. Estate of McMarcus, 14 Phila. 660; or a devise of the homestead for life. Mulford v. Mulford, 15 Stew. (N. J.) 68. But she is not deprived of her exempt property by a bequest in lieu of dower. Hatch v. Bassett, 52 N. Y. 359.

The husband cannot deprive the widow of her exemption by his will, Graves v. Graves, 10 B. Mon. 31; McReary v. Robinson, 20 Miss. 318; Linton v. Crosby, 61 Ia. 293; Ward v. Wolf, 56 Ia. 465; Runnels v. Runnels, 27 Tex. 515; Vedder v. Saxton, 46 Barb. 188; Hasenritter v. Hasenritter, 77 Mo. 162; although this restriction does not apply to specific property exempt from execution, and the widow cannot follow it unless she renounces the will, Turner v. Turner, 30 Miss. 428; or even on her renunciation of the will. Nash v. Young, 31 Miss. 134. Separate estate. The widow will

not be barred of her exemption by the fact that she has a separate estate, Johnston v. Davenport, 42 Ala. 317; Coleman v. Brooke, 37 Miss. 71: Whitley v. Stephenson, 38 Miss. 173; Darden v. Reese, 62 Ala. 311; Thompson v. Thompson, 51 Ala. 493; Mabry ". Ward, 50 Tex. 404; or has a separate estate and has no children. Wally v. Wally, 41 Miss. 657. If, on the other hand, the statutory exemption is confined to a widow in necessitous circumstances and her available property consists of a policy of life insurance on the husband's life, the pecuniary exemption may be allowed to her as an advance to be repaid on receipt of her insurance money. Succession of De Boisblanc,

32 La. An. 17.

Claim-When and how made. In general, where the statute lays down no precise rule, the exemption must be claimed by the widow within a reasonable time. It should be made in the Probate Court and before the appraisement of the personal property, Estate of Heller, 11 Phila. 120; and before the administration is closed, McGowen v. Zimpleman, 53 Tex. 479; and before the order for distribution. Estate of Hunt, 14 Phila. 330. It may be made at the time of presentment of claims against the estate, Estate of Rizer, 15 Phila. 547; or after they are barred for non-presentment. North v. Probate Judge, 84 Mich. 69. made after the lapse of several years, if no embarrassment is caused in the settlement of the estate. Lisk v. Lisk, 155 Mass. 153. But it is too late after years have elapsed and the widow has married again, Burk v. Gleason, 46 Pa. St. 297; or even within the year after the sale of all the personal property, Williams' Appeal, 92 Pa. St. 69; or generally after such sale, Henderson v. Tucker, 70 Ala. 381; Little v. McPherson, 76 Ala. 552; Lawley's Appeal (Pa.), 9 Atl. Rep. 327; or after the

It may even be

payment of debts, so far as there is not sufficient personalty left after payment of the expenses of administration. Estate of Tibbin, 5 Phila. 100. And her application made after the sale of the personal property will not be satisfied out of the proceeds of the real property. Drowry v. Bauer, 68 Mo.

155.

A formal demand is not necessary, Estate of Williamson, 12 Phila. 144; or a presentment, as in the case of debts of the estate. Miller v. Miller, 82 Ill. 463. Her taking possession and retention of it may be of itself sufficient, Estate of Williamson, ubi supra; even without the required appraisement and inventory, Adkinson v. Breeding, 56 Ia. 26; although a formal allowance cannot be made by the court without due appraisement, Estate of Somers, 14 Phila. 261; which appraisement is conclusive, in Pennsylvania, as to the valuation of the chattels, but not as to securities or moneys. Estate of Seller, 82 Pa. St. 153.

Form of payment. In many states the widow may claim cash as part of her exemption, Estate of Seller, 82 Pa. St. 153; Nelson v. Smith, 20 Miss. 662; Matter of Durscheidt, 47 N. Y. S. R. 419; Estate of Reavis, 50 Ala. 210; Carter v. Carter, 20 Fla. 558; but this will extend only to cash on hand, Finney's Appeal, 113 Pa. St. 11; or the proceeds of personal property sold. Cummings v. Cummings, 51 Mo. 261; Kingsbury v. Wilmarth, 2 Allen 310. And she may select a watch as part of her exempt property, Crow v. Hubard, 62 Md. 560; and if she has retained and not inventoried property amounting in value to more than the exemption, she will not be allowed the exempted articles. Cornwell v. Deck, 2 Redf. 87. But she can only have property which the intestate owned at the time of his death, Johnson v. Henry, 12 Heisk. 696; e. g., not property in which

he owned only one-half interest. Baucus v. Stover, 24 Hun 109.

Where the personal property is insufficient, the widow may have the exemption paid, in Pennsylvania, out of the proceeds of the real property, estate of Ranke, 12 Phila. 67; Estate of Andress, 14 Id. 263; Estate of Thomas, 152 Pa. St. 63; but not in Missouri, Jewell v. Knettle, 39 Mo. Ap. 262; Estate of Lloyd, 44 Mo. Ap. 670; Ritchey v. Withers, 72 Mo. 556; and not, in Pennsylvania, where the personal property has been disposed of and she has neglected to make her claim against it. Estate of Deck, 6 Phila. 72.

Preference to debts. In general, the widow's exemption is preferred to all debts of the estate, Estate of Dennis, 67 Ia. 110; Boyden v. Ward, 38 Vt. 628; Mason v. O'Brien, 42 Miss. 420; and, in Massachusetts, to expenses of last illness and funeral and administration also. Kingsbury v. Wilmarth, 2 Allen 310. And even judgment creditors of the deceased have no control over the selection of the exemption, although they may oppose an unfair appraisement. Estate of Graves, 134 Pa. St. 377. In some states, if the estate is less than the statutory amount of exemption, she will take the whole free from the debts of the deceased. And choses in action so taken by her will not be subject to the set-off of a claim by the defendant against the estate, Haugh v. Seabold, 15 Ind. 343; but the estate so taken by her will be subject to the payment of the expenses of the last illness and funeral of the intestate, Green . Weaver, 78 Ind. 494; unless there is sufficient real property for their payment. McCord v. McKinley, 92 Ill. 11. She can only take specific property subject to a mortgage made by the intestate in his lifetime, Loeb v. Richardson, 74 Ala. 311; Kauffman's Appeal, 112 Pa. St. 645; Allentown's Appeal, 109 Pa. St.

75; Nerpel's Appeal, 91 Pa. St. 334; although it will be clear of debts of the decedent that are not liens, Hill v. Hill, 42 Pa. St. 198; and in some states clear of a judgment against the deceased which was a lien on the land taken, Quackenbush v. Taylor, 86 Ind. 270; Kauffman's Appeal, supra; Spencer's Appeal, 27 Pa. St. 218; Notter's Appeal, 45 Pa. St. 361; although a levy was made in the lifetime of the husband. Dixon v. Aldrich, 127 Ind. 296. So, where goods were sold by the administrator and the proceeds taken by the widow as part of her exemption, the fund will be clear of a vendor's lien which was not asserted against the goods before the sale, Lewis v. Steiner, 84 Tex. 364. And, in Pennsylvania, the property taken by the widow for her exemption is clear of mechanics' liens, Hildebrands' Appeal, 39 Pa. St. 133; and taxes. Allentown's Appeal, supra. On the other hand, where a widow has taken property by devise from her husband subject to his debts, her surviving children will only be entitled to take their exemption in it subject to the same. Wanger's Appeal, 105 Pa. St. 346.

In general, the exemption is the same whether the estate is solvent or insolvent. Baldy's Appeal, 40 Pa. St. 328; Hill v. Hill, 32 Pa. St. 511; Davis v. Davis, 63 Ala. 293; Lowry v. Herbert, 25 Miss. 101. So, in Alabama, if there are minor children, but otherwise the widow cannot where the estate is solvent have her statutory exemption out of the real property in preference to the rights of heirs and distributees. Thornton v. Thornton, 45 Ala. 274. And where the estate is solvent, the exemption goes to the widow and children only as an advance on their distributive shares.

Hunter v. Low, 68 Ala. 365. Release and waiver-Ante-nuptial agreement. A widow waives her right of exemption by neglect to claim an appraisement, Hufman's Appeal, 81

Pa. St. 329; and without appraisement, taking but part of the property to which she is entitled. Baskin's Appeal, 38 Pa. St. 65; Davis' Appeal, 34 Pa. St. 256. So. by making an adverse claim to the property, although it failed. Estate of Countryman, 151 Pa. St. 577.

She may also release her right, Telford v. Boggs, 63 Ill. 498; e. g., by a deed of all her 66 'right, title, and interest of dower in said estate," McFarland v. Baze, 24 Mo. 156; but the exemption will not be covered by an agreement to release her "dower and inheritance," Mahaffy v. Mahaffy, 61 Ia. 679; or a release of "any interest which she might take as heir at law." Estate of Moore, 57 Cal. 446.

In like manner, the widow may by an ante-nuptial agreement bar her own interest, Tiernan v. Binns, 92 Pa. St. 248; Shaffer v. Matthews, 77 Ind. 83; and it may be effectual even as to their children if the widow receives the full value of the exemption as a consideration for her agreement, Weaver v. Weaver, 109 Ill. 225; but not until payment is made, Phelps v. Phelps, 72 Ill. 545; Brenner v. Gauch, 85 Ill. 368; and the amendment may be restricted by such a contract, Estate of Collins, 66 Ia. 79; or the exemption changed into a distributee's rights to a child's part. McDearman v. Martin, 38 Ark. 261.

The

Effect of separation-Divorce. right to exemption will be barred by a formal separation and release, Speidel's Appeal, 107 Pa. St. 18; Odiorne's Appeal, 54 Pa. St. 175; or a separation by mutual consent, Hettrick v. Hettrick, 55 Pa. St. 290; or by her voluntary desertion. Estate of Ross, 6 Kulp (Pa.) 521; Estate of Byrne, Myrick's Prob. 1. On the other hand, her living with their children apart from her husband will not of itself defeat her claim to the exemption, Terry's Appeal,

55 Pa. St. 344; Matter of Shedd, 60 Hun 36; nor her separation on account of his drunkenness or adultery, Slack v. Slack, 123 Mass. 443. And, in Missouri, neither her ante-nuptial agreement nor her desertion of her husband will be a bar. Mowser v. Mowser, 87 Mo. 437. So, the wife's former adultery, not continued at the time of the husband's death, is not a bar

under the Indiana statute. Zeigler v. Mize, 132 Ind. 403.

The exemption is of course barred by a valid divorce, Dobson v. Butler, 17 Mo. 87; or a divorce a mensa et thoro, Estate of Fyock, 9 Lanc. L. R. 89; but not by a divorce obtained against her in a foreign court having no jurisdiction. Platt's Appeal, 80 Pa. St. 501.