REL: 12/05/2014




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          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1120848
                             ____________________

                            Korie Sterling Saylor

                                           v.

   Jonathan Fred Saylor, as personal representative of the
            Estate of Woodie Jim Saylor, deceased

                   Appeal from Marshall Circuit Court
                              (CV-12-0101)



MURDOCK, Justice.

      Korie Sterling Saylor appeals from a summary judgment

denying her claim for an elective share of the estate of her

deceased husband, Woodie Jim Saylor.                    We affirm.
1120848

                 I.     Facts and Procedural History

    Woodie and Korie married in October 2005.          Woodie died in

May 2011.       In addition to Korie, Woodie was survived by

Jonathan Fred Saylor, an adult son from Woodie's previous

marriage.

    A     few   weeks   after   Woodie's   death,   Jonathan   filed   a

petition to probate Woodie's will in the Marshall Probate

Court.1    The petition also requested that the probate court

appoint Jonathan as personal representative of Woodie's estate

("the estate").

    Woodie's will requests that Jonathan be appointed as

personal representative of the estate, and the will relieves

the personal representative of the obligations to provide a

bond and to file an inventory.2         In regard to the distribution

of the estate, Woodie's will states:

    "I GIVE, DEVISE AND BEQUEATH all my property of
    whatever nature and wherever situated, including any
    property over which I may have a power of

    1
     Woodie's will appears to be self-proving.          See Ala. Code
1975, § 43-8-132.
    2
     See Ala. Code 1975, § 43-2-851(c) (providing that a will
may "exempt the personal representative from giving bond");
Ala. Code 1975, § 43-2-311 (providing that a will may "exempt
an executor from filing an inventory"); see also Ala. Code
1975, § 43-2-835(b) (exemption from filing an inventory).
                                    2
1120848

    appointment, to my son, JONATHAN FRED SAYLOR, if he
    survives me. HOWEVER, I GIVE, DEVISE AND BEQUEATH
    a life estate in and to my home and real property
    where my wife and I reside at the time of my death,
    to my wife, KORIE STERLING SAYLOR."

(Capitalization in original.)

    Contemporaneously with the filing of the petition to

probate Woodie's will, Jonathan also filed a document executed

by Korie.    In that document, Korie acknowledged that she had

received notice of the filing of the petition to probate

Woodie's will, and she consented to the admission of the will

to probate without further notice to her.3       See Ala. Code

    3
        The document executed by Korie states:

         "I, THE UNDERSIGNED, being one of the heirs at
    law and next of kin of WOODIE JIM SAYLOR, deceased,
    do hereby acknowledge that I have notice of the
    filing by JONATHAN FRED SAYLOR of the petition to
    Probate the Last Will and Testament of said decedent
    and the undersigned does hereby request the Court to
    immediately admit said Last Will and Testament to
    probate and record without further notice to me."

(Capitalization in original.)

     Pursuant to the language of the above-quoted document,
Korie waived the right to further notice as to the admission
of Woodie's will to probate. In their appellate briefs, the
parties address whether the document also waived Korie's right
to claim an elective share from Woodie's estate. See Ala.
Code 1975, § 43-8-70 et seq. (statutes governing elective
share). This court has held that a waiver of the right to
claim an elective share must "clearly show[] an intention to
release" that right. Garrard v. Lang, 489 So. 2d 557, 561
                                3
1120848

1975, § 43-8-164 (notice requirements for hearing to probate

a will).

    On June 13, 2011, the probate court entered an order

admitting Woodie's will to probate and appointing Jonathan as

the personal representative of the estate ("the personal

representative").

    Korie did not file a petition for an elective share

within six months after the will was admitted to probate. See

Ala. Code 1975, § 43-8-73(a) (elective-share petition must be

filed "within six months after the date of death, or within

six months after the probate of the decedent's will, whichever

limitation last expires").   On December 22, 2011, Korie filed

a "Request for Extension of Time to File Petition for Elective

Share."    In that document, she asserted:

         "2. The estate is still under administration
    and has not been settled.




(Ala. 1986); see also Horne v. TGM Assocs., L.P., 56 So. 3d
615, 624 (Ala. 2010) ("'[A] waiver consists of a "voluntary
and intentional surrender or relinquishment of a known right,"
and the burden of proof in establishing a waiver rests upon
the party asserting the claim.'" (citations omitted)).      No
language in the document Korie executed states, or might be
construed as stating, that Korie was waiving her right to
claim an elective share.
                               4
1120848

         "3.     No accounting or inventory has been
    filed;[4] the assets and liabilities are unsettled at
    this point.

         "4.  An extension is necessary to enable the
    widow to acquaint and familiarize herself of the
    condition of her husband's estate and make an
    intelligent election thereof.

         "5. The spouse is not guilty of any conduct
    which would tend to negate her right to an
    extension.

         "6. Refusing to extend the period would impose
    an undue hardship upon the spouse.

         "7. Spouse first consulted counsel on December
    20, 2011, and first learned of her right to dissent
    from the Will. Spouse had not been apprised of her
    election right and files this request as soon as
    practical with diligence upon notice. The widow is
    entitled to the requested relief in equity.

         "8. Alabama Code [1975,] § 43-8-73[,] is
    remedial in nature and should be construed liberally
    so as to give the broadest possible protection to
    the surviving spouse."

Korie requested "a reasonable time to file a Petition for

Elective Share."

    On January 12, 2012, the personal representative filed an

objection to Korie's request for an extension of time.      The


    4
     As noted above, Woodie's will relieved the personal
representative from the statutory obligation to file an
inventory.   Also, as of the date on which she filed her
request for an extension of time, Korie had not sought an
accounting from the personal representative.
                             5
1120848

personal        representative    contended          that,     pursuant      to

"§ 43-8-73, [Ala. Code 1975,] any extension of time to file

notice of election must be granted before the election period

has expired" and that, "[i]n order to be timely, the said

petition for elective share would have had [to have] been

filed by December 13, 2011."                The personal representative

requested that the probate court deny Korie's request for an

extension of time.

    Section § 43-8-73(a) provides:

    "The surviving spouse may elect to take his elective
    share by filing with the court and mailing or
    delivering to the personal representative, if any,
    a petition for the elective share within six months
    after the date of death, or within six months after
    the probate of the decedent's will, whichever
    limitation last expires.

         "The court may extend the time for election for
    cause shown by the surviving spouse before the time
    for election has expired."

(Emphasis added.)

    On January 23, 2012, Korie filed a "Petition for Elective

Share," stating that she was claiming an elective share of the

estate    and    noting   that   she       had   filed   a   request   for   an

extension of time to do so on December 22, 2011.




                                       6
1120848

    On February 14, 2012, the probate court entered an order

granting Korie's request for an extension of time and an order

allowing Korie's claim to take an elective share of the

estate.     The latter order did not adjudicate the amount of

that elective share; it set a date on which the probate court

would conduct a hearing to determine that amount and then

enter a further order with respect thereto.               See Ala. Code

1975,   §   43-8-70(a)     (providing   that    a   surviving      spouse's

elective share is "the lesser of (1) All of the estate of the

deceased reduced by the value of the surviving spouse's

separate    estate;   or   (2)   One-third     of   the   estate    of   the

deceased"); see also Ala. Code 1975, § 43-8-73(d) ("After

notice and hearing, the court shall determine the amount of

the elective share and shall order its satisfaction from the

assets of the estate."); Ala. Code 1975, § 43-8-75(a) ("In the

proceeding for an elective share, values included in the

estate which pass or have passed to the surviving spouse, or

which would have passed to the surviving spouse but were

renounced, are applied first to satisfy the elective share and

to reduce any contributions due from other recipients of

transfers included in the estate.").


                                   7
1120848

      In May 2012, the personal representative filed, in the

Marshall Circuit Court, a petition to remove the estate

administration from the probate court to the circuit court.

See Ala. Code 1975, § 12-11-41. Thereafter, the circuit court

entered an order removing the administration of the estate

from the probate court to the circuit court; the probate court

had not yet held a hearing to determine the amount of Korie's

elective share.

      In November 2012, the personal representative filed in

the circuit court a motion for a summary judgment as to

Korie's claim for an elective share.     The motion alleged that

the probate court should have denied Korie's claim on the

grounds that her petition was not timely filed and that, under

the   circumstances   presented,   the   probate   court   had   no

authority to extend the time for Korie to exercise her right

of election.

      Korie filed a response to the personal representative's

summary-judgment motion.    Her response alleged:

           "1. At some point on or before June 13, 2011,
      the widow met with the attorney for the estate for
      execution of a consent to probate the Will as
      requested. ...   Neither at that time, nor at any
      time, did he advise her that he represented the
      estate and that she should seek independent legal

                               8
1120848

    counsel nor was there any discussion of the assets
    of the estate which would have allowed her to make
    an informed decision where she was aware of her
    options. Under the Will, she received a life estate
    in the marital residence for which she is paying a
    mortgage payment of $986.00 a month (26 years
    remaining) as well as paying for half of a tractor
    ($22,000) in which she has no interest and which is
    an asset of the estate.[5]

          "....

         "3. On or about the 20th day of December, 2011,
    the widow first consulted with counsel regarding her
    situation. Aside from having lost her husband seven
    months before, she was unaware of the assets of the
    estate and extent of his holdings. ...       Counsel
    immediately filed on the 22nd day of December, 2011,
    a request for extension to file her petition for an
    elective share of the decedent's estate (nine days
    after the election period expired).          Shortly
    thereafter, counsel for the respondent reviewed the
    probate records of Marshall County regarding the
    real estate holdings of the decedent and ... filed
    the widow's petition for elective share.        Said
    petition was granted by Order of the Probate Court
    on February 14, 2012, granting the respondent's
    petition for an elective share.

         "4. Ala. Code 1975, § 12-22-21, provides the
    basis for appeal from the Order, Judgment or Decree
    of the Probate Court may be taken by the party
    aggrieved to the Circuit Court or Supreme Court in
    the cases specified and within the time frame for an
    appeal, generally within forty-two days after a
    determination. No appeal, timely or otherwise, has
    been made regarding the Order of the Probate Court
    regarding the extension of time granted or the order
    granting the elective share requested by the widow."

    5
     The record does not reflect the bases for       Korie's
obligations as to the mortgage and the tractor.
                             9
1120848

    In support of her response, Korie filed an affidavit that

states:

         "I am Korie Sterling Saylor, widow of the
    decedent, Woodie Jim Saylor, and respondent in this
    case.     This case involves an elective share
    regarding my deceased husband's estate. At the time
    of his death, my husband was in the cattle business;
    after his death I worked as a waitress at the El
    Rancho restaurant. I was aware that he owned cattle
    and llamas, equipment and land, I was unaware of the
    specifics of the business operation and the
    condition of his estate. At some point on or before
    June 13, 2011, I met with Clint Maze, the attorney
    for the estate, regarding execution of the consent
    to probate the Will as he requested.      Neither at
    that time nor at any time, did he advise me that he
    represented the estate and that I should seek
    independent legal counsel nor was there any
    discussion of the assets or composition of the
    estate. Under the terms of the Will, I received a
    life estate in our residence. I am currently paying
    $986.00 a month with 26 years remaining on the
    mortgage for our house and the 9.09 acres, as well
    as, paying for half of a tractor ($22,000) that
    belongs to the estate."

    In January 2013, the circuit court entered an order

granting the personal representative's motion for a summary

judgment.   The order states that Korie

    "claims that the attorney for the estate obtained
    her signature on the waiver and consent to probate
    the will without explaining that said attorney
    represented the estate, and further, that his estate
    consisted of much more than she was aware. Counsel
    for the estate argued in oral arguments, without
    objection from Korie, that he provided her with a
    copy of the will for her to read and he did not

                              10
1120848

    advise her. The waiver is clear and unambiguous as
    to its content and clearly consents to admitting the
    will to probate.

         "[Korie] then waited more than six months to
    seek legal counsel relating to taking any action
    relating to taking an elective share. The statute
    within which to file requesting an extension of time
    had already run before she took any action to elect.
    Her attorney promptly took action and filed a motion
    the day following her first visit with her attorney.
    [Korie] claims that the Probate Court of Marshall
    County issued an order allowing an extension of time
    and that such was an appealable order to this Court
    and that the personal representative's failure to
    appeal the order timely makes it a final order and
    that this Court has no authority to set the order
    aside. This case was removed from probate to this
    Court after the order allowing the extension of time
    was granted and after the appeal time for an order
    from probate court that must be appealed.

         "The probate Court without question has
    jurisdiction over granting or refusing to grant the
    right to elect a distributive share, but there are
    certain types of orders appealable from probate
    court to this Court or the Alabama Supreme Court as
    set out in §§ 12-22-20 and -21, Code of Alabama
    1975, and the Court finds the order granting an
    extension of time to file an elective share is not
    one of the specified orders that must be appealed.
    Therefore, since the estate was removed from probate
    to this Court, the Court determines it has
    jurisdiction to determine the issue of whether or
    not the order granting an extension of time should
    be altered, amended, or vacated.

          "....

         "The Court ... find[s] that the Estate has
    raised an affirmative defense of the applicable
    statute of limitations and having found no fraud or

                            11
1120848

     undue influence and the undisputed evidence shows
     clearly [Korie] did not rely on legal advice from
     the estate's attorney, as well as having failed to
     file her election within the initial six months
     allowed by § 43-8-7[3], Code of Alabama 1975, after
     having been furnished with a copy of the will and
     waiving a hearing on admitting the will to probate,
     this Court determines the following:

          "1. There is no genuine issue of material
              fact relating to this issue, and

          "2. The Estate is entitled to a judgment
              as a matter of law."

The order concludes by setting aside the order granting Korie

an extension of time in which to file her claim for an

elective share and by dismissing Korie's petition for an

elective share.   Korie filed a postjudgment motion, which the

circuit court denied.   Korie appeals.

                        II.   Discussion

A.   Appealability of February 2012 Order Granting An Elective
     Share

     Korie first argues that the probate court's February 2012

order "granting" her petition for an elective share was an

appealable order under § 12-22-21(4), Ala. Code 1975, which

provides for an appeal "on the decision of the [probate]

court, in proceedings instituted to compel the payment of a

legacy or distributive share, at any time within 42 days after


                               12
1120848

such decision."    (Emphasis added.)   Korie contends that the

personal representative's failure to appeal that February 2012

order resulted in that order becoming the law of the case.

Korie's argument misapprehends the nature of the probate

court's orders that are at issue and/or the import of § 12-22-

21(4).

    Assuming for the sake of argument that § 12-22-21(4)

applies to a surviving spouse's claim for an "elective share,"

the condition otherwise described in that statute is not met

here.     The probate court entered two preliminary orders, an

order granting an extension of time for Korie to petition for

an elective share and an order stating that Korie was entitled

to an elective share.     As noted, the latter order did not

adjudicate the amount of that elective share but set a date on

which the probate court would conduct a hearing to determine

the amount of the elective share.

    As also noted, a surviving spouse's elective share is

determined through the application of a formula.   Pursuant to

the elective-share formula, a surviving spouse's elective

share is "the lesser of (1) All of the estate of the deceased

reduced by the value of the surviving spouse's separate


                               13
1120848

estate; or (2) One-third of the estate of the deceased." Ala.

Code 1975, § 43-8-70(a). Based on the nature of the elective-

share formula, determining a surviving spouse's right to

receive an elective share of the estate requires the court

considering the issue to determine the value of the share to

which the surviving spouse is entitled.           See also Ala. Code

1975, § 43-8-73(d) ("After notice and hearing, the court shall

determine the amount of the elective share and shall order its

satisfaction from the assets of the estate.").

    But neither of the probate court's February 2012 orders

determined    the   share,   if   any,   to   which   Korie   might   be

entitled.    That is, they did not resolve Korie's claim for an

elective share.      Neither order compelled any payment, or

denied any claim for payment, of any portion of the estate.

Neither order represents "the decision" of the probate court

"in [a] proceeding[] instituted to compel the payment of a

legacy or distributive share" contemplated by the statute.

Neither order was appealable as "the decision" of the probate

court in the "proceeding[] instituted to compel the payment of

a legacy or distributive share" under § 12-22-21(4).              See,

e.g., Dempsey v. Dempsey, 899 So. 2d 1272, 1273 (Fla. Dist.


                                  14
1120848

Ct. App. 2005) (holding that an order determining entitlement

to an elective share, but not the amount of the share, is a

"nonfinal      and     nonappealable"    order).         See   generally

Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d 354, 361-

62 (Ala. 2004) (holding that, where the amount of a monetary

claim is at issue, a judgment that adjudicates liability, but

not the amount of the claim, is not a final judgment); Banyan

Corp. v. Leithead, 41 So. 3d 51, 54 (Ala. 2009) (noting that

an appealable judgment is one that finally and conclusively

adjudicates the substantive rights of the parties).                As a

result, the February orders were not appealable and, indeed,

remained subject to revision by the probate court or, as in

this case, by the circuit court upon proper removal of the

administration of the estate. See Rule 54(b), Ala. R. Civ. P.

See also Ala. Code 1975, § 12-13-12 (stating that the rules of

practice in circuit courts generally are applicable in probate

courts); Ala. Code 1975, § 12-11-40 (stating that the Alabama

Rules     of   Civil    Procedure   generally      are   applicable   in

proceedings for the administration of estates removed to the

circuit court).6

    6
     Rule 1(a), Ala. R. Civ. P., was amended effective January
1, 2013, to provide that, subject to certain exceptions, the
                                    15
1120848

     In   contrast,   the   circuit   court's   eventual   order

dismissing Korie's petition fully adjudicated Korie's claim

that she was entitled to receive an elective share of Woodie's

estate, and that order is appealable. See Rogers v. McLeskey,

225 Ala. 148, 149, 142 So. 526, 527 (1932) (noting that order

denying "right of homestead and exemption by the alleged widow

of decedent, after she had filed an alleged dissent as widow

from the will," was "final" and "appealable").

B.   Extension of Time to Exercise Right of Election

     Korie next argues that the circuit court erred because it

"failed to apply principles of equity as a basis to allow

Korie additional time beyond the six-month limitation of

§ 43-8-73 to make a decision regarding taking an elective

share."   Specifically, Korie argues that equity requires a

court to allow an untimely filed claim for an elective share

where:

     1. The surviving spouse was "ignorant" of her right
     to dissent from the will and to claim an elective
     share;




Alabama Rules of Civil Procedure apply in probate court
proceedings.    See Committee Comments to Amendment to
Rule 1(a), effective January 1, 2013.
                               16
1120848

    2.   The attorney for the estate did not inform the
    surviving spouse of her right to dissent from the
    will and to claim an elective share;

    3. The attorney for the estate did not "advise" the
    surviving spouse to obtain independent counsel; and

    4. The surviving spouse filed her request for an
    extension of time nine days after the limitations
    period applicable to her request for an extension of
    time.7

    Korie supports her argument by asserting the general

principle that "'[t]he widow is a favorite of the law'" and

    7
     Korie also states that "the denial of an elective share
would impose an economic hardship upon" her, and Korie notes
that she "worked as a waitress at a Mexican restaurant when
these issues were before the circuit court." Although Korie's
affidavit avers that she worked in a Mexican restaurant after
Woodie's death, she made no averment that, and presented no
other evidence that would support the conclusion that, "the
denial of an elective share would impose an economic hardship
upon" her.

     Also, Korie concedes that Woodie left an investment
account as a nonprobate asset and that the account was equally
divided between her and Jonathan.     The record contains no
information concerning the amount of the investment account.
In his appellate brief, the personal representative describes
the account as "very sizeable"; in Korie's reply brief, she
"denies" that the amount she received from the account could
be described as even being "sizeable," much less "very
sizeable." But the existence of the investment account and
any impact it might have as to the matters at issue were not
among the matters presented to the circuit court. Thus, we
will not consider those matters either. See, e.g., Andrews
v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992) ("This
Court cannot consider arguments raised for the first time on
appeal; rather, our review is restricted to the evidence and
arguments considered by the trial court.").
                             17
1120848

that statutes governing dower rights should be liberally

construed.     Perrine's Ex'rs v. Perrine, 35 Ala. 644, 647

(1860).    More specifically, she argues that the "liberality"

of equity as to the rights of a widow "is reflected in the

comments made by this Court" in Adams v. Adams, 39 Ala. 274

(1864), and in Steele v. Steele's Adm'r, 64 Ala. 438 (1879),

both of which discuss the widow's right to dower, a common-law

right the elective share has displaced.8         Further, Korie

references Ala. Code 1975, § 43-8-3, which states:      "Unless

displaced by the particular provisions of this chapter, the

principles of law and equity supplement its provisions."    And

Korie refers to a few cases from other jurisdictions in which

courts have applied principles of equity and allowed an

untimely claim for an elective share.      As discussed below,

however, those cases are distinguishable.

    8
        As the Commentary to § 43-8-70 states:

         "Under the common law, a widow was entitled to
    dower, which was a life estate in a fraction of
    lands of which her husband was seized of an estate
    of inheritance at any time during the marriage.
    Dower encumbers titles and provides inadequate
    protection for widows in a society which classifies
    most wealth as personal property. Hence states have
    tended to substitute a forced share in the whole
    estate for dower and the widower's comparable
    common-law right of curtesy."
                               18
1120848

    As noted above, the elective share is a creation of the

legislature, and the statutes creating the "right of election"

also establish the conditions applicable to the exercise of

that right.   See, e.g., § 43-8-70(a) ("If a married person

domiciled in this state dies, the surviving spouse has a right

of election to take an elective share of the estate."); Ala.

Code 1975, 43-8-71 ("The right of election of the surviving

spouse may be exercised only by the surviving spouse during

his lifetime.").   Those conditions include filing a claim for

an elective share or a request for an extension of time within

the limitations period imposed by § 43-8-73(a).

    Provided a request for an extension of time is timely

filed, § 43-8-73(a) gives the trial court discretion        to

"extend the time for election for cause shown."   As one court

has explained:

         "The elective share statute is like a statute of
    limitations in that it delineates a specified period
    of time during which a party must act. However, the
    statute is more explicit than a 'statute of
    limitations' in that it expressly permits the court
    to extend the election period, whereas a statute of
    limitations is silent on the rights of the court to
    extend any such period. Further, the elective share
    statute gives explicit instructions to the court
    regarding when it may act, limiting this ability to
    '[b]efore the time for election has expired.' [N.J.
    Stat. Ann. §] 3A:38A–5(a)."

                              19
1120848

McKay v. Estate of McKay, 184 N.J. Super. 217, 222-23, 445

A.2d 473, 475 (Law Div. 1982), aff'd, 188 N.J. Super 44, 455

A.2d 1142 (App. Div. 1983); see also, e.g., Moise v. Moise's

Ex'r, 302 Ky. 843, 845, 196 S.W.2d 607, 608 (1946) ("[T]he

Court   ...   is without     power    to   grant   additional    time   to

determine whether or not to renounce, unless application be

made therefor within the time prescribed by Statute for the

election."); see also Bunker v. Murray, 182 Mass. 335, 336, 65

N.E. 420, 421 (1902)("The statute has pointed out the way for

an extension of time, and the probate court has no power,

after the expiration of six months from the first probate of

the will, to allow the widow to waive the provisions of the

will, or to claim such portion of his estate as she would have

been entitled to if her husband had died intestate."); In re

Estate of Zweig, 145 Misc. 839, 856-57, 261 N.Y.S. 400, 419-20

(Sur.   Ct.   1932)("[T]he    statute      has   granted   surrogates    a

discretionary power to extend the period for making the

election only before the expiration of the initial statutory

six months allowed for the purpose. On fundamental principles

of   statutory   construction,        inclusio     unius   est   exclusio

alterius.     No power is given for an extension after the


                                     20
1120848

expiration of the time, and in the         absence of such a grant of

power,    it   cannot   be   held   to   exist.   ...   [T]he   court   is

powerless to grant relief after the expiration of the initial

six months' period in the absence of a demonstration of active

fraud having been practiced upon the surviving spouse.").

    The McKay court further noted that

         "[p]laintiff did not apply to the court for an
    extension of time to elect, as she should have under
    [N.J. Stat. Ann. §] 3A:38A–5(a). Even assuming that
    the information she needed to make a reasoned
    decision was not made available within the six-month
    period (a situation which plaintiff did not convey
    to the executor), the burden is on the surviving
    plaintiff/spouse to apply for an extension of the
    period for 'good cause' within the six months. Id.
    If   plaintiff   believed  she   lacked   sufficient
    information, she should have, for that reason alone,
    made application to the court for an extension.
    Plaintiff's argument that she was not provided with
    sufficient information could be construed as 'good
    cause' under the statute, enabling her to apply for
    an extension.     The Legislature anticipated such
    circumstances and provided a procedure with which
    plaintiff did not comply.

           "....

         "The denial of plaintiff's motion may seem harsh
    in that she was apparently prepared to make an
    election against the Will only one month after
    expiration of the time period.     However, it is a
    legislative prerogative to amend a statute, not the
    court's."




                                    21
1120848

McKay, 184 N.J. Super. at 223-24, 445 A.2d at 475-76; see also

In re Estate of Rehfuss, 65 Wis. 2d 409, 414, 222 N.W.2d 617,

620 (1974)("The power granted to the trial court [as to an

extension   for   filing   an   election]   by   [Wis.   Stat.   Ann.

§] 861.11(3) ... could not be exercised because the one-year

period had expired."); In re Estate of Faller, 407 Pa. 73, 77,

180 A.2d 33, 35 (1962) ("[One-year] time requirement [for

election] is mandatory and cannot be extended except upon

proof that the surviving spouse, by actual fraud, has been

induced or misled to delay the election.").

    Likewise, in In re Estate of Hartt, 75 Wyo. 305, 295 P.2d

985 (1956), Pearl Hartt, the surviving spouse, filed an

    "action in equity ... to permit [her] to dissent
    from the will [of her deceased husband]. ... She
    alleged in substance that she did not know of her
    right to elect to take against the will of the
    deceased; that she did not know the extent and value
    of the estate; that she was ignorant of the impact
    of Federal taxes on the estate; that she was not
    advised of her rights by the executors of the estate
    in whom the testator and plaintiff had reposed trust
    and confidence, nor was she advised of her rights by
    any one else."

75 Wyo. at 329, 295 P.2d at 989.            The pertinent Wyoming

statute required the surviving spouse to file his or her

election within six months after the probate of the deceased


                                 22
1120848

spouse's will.     Pearl did not file her equity action until

15   months    after   the    probate      of   her   husband's    will.

Nevertheless, the trial court granted Pearl's petition, and

the personal representative and one of the decedent's heirs

appealed.

     The Wyoming Supreme Court surveyed the law of other

jurisdictions concerning whether equity might be invoked to

provide relief under such circumstances, and noted:

     "The decisive decisions on the point, pro and con,
     are absolutely irreconcilable, although we have
     diligently sought some ground on which they could be
     reconciled. ... There are but few points on which
     the courts are generally agreed, namely, when fraud
     and the like appears by reason of which the widow
     has been silent, relief may be granted, for fraud
     vitiates everything. No fraud or the like appears
     in the case at bar. So, too, the courts hold that
     if the widow wants to change her mind during the
     period fixed in the statute, she may do so. ...
     There also may be very exceptional circumstances
     under which the time fixed by statute is not
     controlling."

75 Wyo. at 330-31, 295 P.2d at 990.

     The Hartt court noted that some courts had concluded that

equity could intervene to allow an untimely election because

those   courts   adhered     to   the    common-law   rules   concerning

election.     In contrast, as to those courts that had rejected

the intervention of equity, the Hartt court stated that that

                                    23
1120848

      "class of cases seems to have two sources. In the
      first place we have the general rule that mandatory
      statutes must be obeyed and that the courts have no
      right to make a law contrary to that prescribed by
      the legislature. In the second place the beginning
      at least of considering statutes mandatory in cases
      such as before us is clearly found in the fact that
      such statutes were enacted for the express purpose
      of remedying the evils of the law of election in
      such cases under the common law. ... The earlier
      cases are clear on the subject. Stephens v. Gibbes,
      14 Fla. 331, 357, 358 [(1873)], discusses the common
      law at some length. It points out that at common
      law no election was necessary except in certain
      cases; again that there was no limit of time in
      which an election by a widow was necessary to be
      made.   The court states that any one who knows
      anything about the history of election in such cases
      knows the mischief that existed at common law, and
      that the enactment of statutes by the legislature on
      the subject 'originated in the desire and necessity
      for curing the evils incident to the common law
      rules upon these subjects.'"

75 Wyo. at 333, 295 P.2d at 991; accord Hilliard v. Bindford's

Heirs, 10 Ala. 977, 991 (1847) ("The evil intended to be

obviated" by the legislature's enactment of a statutory time

limit as to the assertion of the widow's right to receive her

dower interest "was the difficulty which previously existed of

ascertaining when and how an election was to be made by her.

...    This seems to have been the only change made by the

statute in the existing law -– a fixed, a definite term was

introduced within which she is compelled to signify her


                              24
1120848

dissent to the will; and if this is not made, it then, if any

provision [in the will] is made inconsistent with her right

under the statute, becomes obligatory on her.").

    The Hartt court further reasoned:

    "[T]he courts have held that a statute like ours
    fixing the time in which a surviving spouse must
    dissent from the will has been held to be a statute
    of limitation, and it is said that a court of equity
    may not give relief from such a statute no matter
    what hardship may be created, unless, perhaps, it be
    by reason of fraud or the like. In re Zweig's Will,
    145 Misc. 839, 261 N.Y.S. 400 [(Sur. Ct. 1932)].
    Thus the Colorado Supreme Court, which, as noted,
    held the failure to elect to be conclusive on the
    rights of the widow, in the later case of In re
    Stitzer's Estate, 103 Colo. 529, 87 P.2d 745, 120
    A.L.R. 1266 [(1939)], designates the statute as a
    statute of limitation.     Other cases to the same
    effect are Schweer v. Schweer, Mo. App., 86 S.W.2d
    969 [(1935)]; Ludington v. Patton, 111 Wis. 208, 86
    N.W. 571 [(1901)]; In re Zweig's Estate, 145 Misc.
    839, 261 N.Y.S. 400; Akin v. Kellogg, 119 N.Y. 441,
    23 N.E. 1046 [(1890)]. ...

          "....

         "Numerous cases announce the rule that under a
    statute similar to ours, the surviving spouse must
    dissent from the provisions of the will within the
    time fixed by statute, excepting cases involving
    fraud or the like. ...

          "....

         "In Stearns v. Stearns, 103 Conn. 213, 130 A.
    112, 116 [(1925)], the court stated:




                             25
1120848

               "'The statute is too plain to require
          construction.   The will did give to the
          husband a portion of the estate of the
          testatrix. The husband made no election in
          writing as to whether he would accept or
          reject the provisions of the will in lieu
          of his statutory share as husband of the
          testatrix. The terms of this statute are
          explicit, and however unfortunate the
          result, the facts of record bring the case
          exactly within the statute and require us
          to hold that the husband "shall be taken to
          have accepted the provisions of the will,
          and shall be barred of said statutory
          share."'

         "[In] In re Daub's Estate, 305 Pa. 446, 157 A.
    908, 911, 81 A.L.R. 735 [(1931)], the court stated:

               "'No matter how hard the decision in
          a particular case may seem to be, if a
          widow does not make her election within the
          statutory period, the courts, because of
          that act, must declare that she is deemed
          to have made an election to take under the
          will, for this "statute here fixes the time
          as definitely as does that relating to
          taking appeals, and both are mandatory. ...
          In view of the positive provisions of the
          statute we are not persuaded that relief
          could be granted ex gratia."         In re
          Minnich's Estate or Sherwood's Estate, 288
          Pa. 354, 358, 136 A. 236, 237 [(1927)].

               "'A different conclusion will, of
          course, be reached in cases where actual
          fraud has been committed to obtain the
          widow's election, and no laches appears,
          for fraud vitiates everything it touches.'

          "....


                              26
1120848

          "Notwithstanding    [a]    great    array    of
     authorities[] in which the courts have considered
     the statutory provisions to be mandatory, counsel
     for respondents contend that we should follow the
     common law rule of election, in which time is not
     considered to be of the essence, and that equity
     will give relief.      We have already seen that
     Stephens v. Gibbes, 14 Fla. 331 [(1873)], and
     Collins v. Carman, 5 Md. 503 [(1854)], followed by
     another Maryland case, hold the contrary. Perhaps
     the leading case on the subject before us, because
     of the comprehensive discussion of all the phases on
     this subject, is In re Zweig's Estate, 145 Misc.
     839, 261 N.Y.S. 400. Counsel for respondents say
     that the case is distinguishable because the probate
     court of New York has no equitable jurisdiction.
     But it has jurisdiction, by statute, to extend the
     time within a limited period, which itself seems to
     be equitable in its nature.      Further the court
     expressly considers the subject of whether or not a
     court of equity can give relief after the expiration
     of the time fixed by statute, and states that courts
     of equity are powerless to vary the direct mandate
     of legislative enactments as are courts of law, and
     that this has been determined on innumerable
     occasions."

75   Wyo.   at   339-43,   295   P.2d   at 995-96 (emphasis   added;

emphasis omitted).

     The Hartt court concluded that it was "constrained to

hold that our statute hereinbefore quoted is mandatory, and

that [Pearl] Hartt had no right to dissent from the will after

the expiration of six months mentioned in the statute."           75

Wyo. at 346, 295 P.2d at 998.           And, of particular import to




                                   27
1120848

our consideration of Korie's arguments in the present case,

the Hartt court noted that Pearl

    "contends that the executors should have advised her
    of her rights. It is stated in 90 C.J.S., Trusts,
    § 247, p. 225 that: 'By accepting the trust, a
    trustee (executors are trustees) becomes bound to
    administer it, or to execute it, in accordance with
    the provisions of the trust instrument and the
    intent of the settlor.' In determining his duty,
    the intention of the testator is of controlling
    importance. ... Hence the first and primary duty
    of the executors in this case was to see that the
    intent of the testator was carried out. It was not
    their duty, in fact it would have been a violation
    of their duty, to do anything that would nullify the
    provisions of the will. True the executors had no
    right to defraud the widow or by chicanery induce
    her not to dissent from the will. But no fraud or
    chicanery is shown herein. The court in Stephens v.
    Gibbes, 14 Fla. 331, 356 [(1873)], stated:

               "'Neither the executors, the other
          devisees or legatees, not the creditors,
          are in any legal sense under an obligation
          to give the widow notice of the provisions
          of the will.       The law presumes her
          knowledge of the will and its contents as
          well as her knowledge of her right of dower
          and its nature, and she is bound to know
          that if she omits for the space of one year
          to signify her dissent, she cannot claim
          dower.'

         "That, of course, applies as well to her right
    to   take  under   the   statute  or   descent  and
    distribution."

75 Wyo. at 348, 295 P.2d at 999; see also, e.g., In re Estate

of Pritchard, 37 Kan. App. 2d 260, 272-73, 154 P.3d 24, 33

                              28
1120848

(2007) (holding that, absent a statutorily created obligation,

a personal representative or his or her attorney has "no duty

... to inform or give notice to [the surviving spouse] of [his

or] her homestead and/or spousal rights").9         See also      Allen

v. Guthrie, 469 So. 2d 204, 205-06 (Fla. Dist. Ct. App. 1985)

("A surviving spouse has no right to an elective share absent

a timely election to take that share.        Order and finality in

the   administration   of   estates,   as   is   reflected   in   [the

elective-share statute's] time limits, are paramount concerns;


      9
     In some states, the personal representative is
statutorily required to disclose the financial status of the
estate to the surviving spouse where the surviving spouse
requests such disclosure. See, e.g., Tenn. Code Ann. § 31-4-
103. In such states, where the spouse requests disclosure and
the personal representative fails timely to provide the
information required by the statute, "the statutory time for
filing a dissent will not bar the widow from making that
election." Merriman v. Jones, 620 S.W.2d 88, 91 (Tenn. Ct.
App. 1981). Alabama has no such requirement as part of its
elective-share statutory scheme.

     Also, we note that Korie is not arguing that the attorney
for the estate had a legal duty to inform her that she had a
right to claim an elective share; Korie states in her reply
brief that "that argument has actually never been made."
Nevertheless, Korie states that this Court should "recommend"
that counsel for the estate inform the surviving spouse of his
or her right to claim an elective share "in every instance.
... A counsel for the estate should not favor the individual
rights of the person named as administrator of the estate."
We must decline Korie's invitation.


                                29
1120848

and failure to elect within the period prescribed by the

Legislature bars a claim."); Downes v. Downes, 388 Md. 561,

578, 880 A.2d 343, 353 (2005) ("When [the] period [for filing

a request for an extension of time] expires, the authority to

extend it expires as well.            The same underlying principles

apply: there has been no retreat from the principle that the

ability to renounce a Will in favor of a statutory share is to

be strictly construed and the law still favors the expeditious

administration and early settlement of Estates."                (citation

omitted));       In re Estate of Kruegel, 551 N.W.2d 718, 719

(Minn. 1996) (affirming the denial of an untimely filed

"notice of election" where the surviving spouse failed to

timely request an extension of the time in which she must

elect and rejecting surviving spouse's argument that equity

should relieve her of the pertinent time limitations because

she had been "actively engaged in negotiations with the estate

as to how the distributions should be made"); In re Estate of

Hesemann, 214 Neb. 842, 336 N.W.2d 568 (1983) (affirming the

denial    of    the   surviving   spouse's     untimely     claim   for   an

elective share where the surviving spouse failed to establish

that   the     attorney   for   the   estate   had   made   any material


                                      30
1120848

misrepresentation       in    response   to   the   surviving   spouse's

inquiries concerning his right to file a claim for an elective

share); Simpson v. Sanders, 314 S.C. 413, 445 S.E.2d 93

(1994)(requiring strict compliance with elective-share statute

and     denying    untimely    petition);     and   In   re   Estate   of

Lingscheit, 387 N.W.2d 738, 741 & n. (S.D. 1986) (holding that

the trial court should have denied the surviving spouse's

petition for an elective share where it was filed three weeks

after the pertinent time limit and she "could have requested

an extension before her time expired" but did not).10

       As to the Alabama cases cited by Korie in support of her

argument, we first note that in Adams this Court addressed the

issue whether a widow who had timely filed a claim for dower

could prosecute that claim even though she had accepted money

that had been bequeathed to her in her deceased husband's

will:       "Can she, while retaining all the property bequeathed

to her ..., recover dower in the probate court?"              39 Ala. at

279.        The Adams Court concluded that she could not.         In so

doing, the Court noted that the widow had "elected" to receive


       10
      Estate of Lingscheit was superseded, in part, on other
grounds, as recognized in In re Estate of Geier, 809 N.W.2d
355, 358 (S.D. 2012).
                                    31
1120848

what the will provided for her by accepting property pursuant

to the terms of the will.      But, the Court continued:

         "Although she may have made an election, she is
    not concluded by it, if made in ignorance of the
    circumstances calculated to influence her choice.
    But we are not to infer from the expression that she
    is not concluded by an election unadvisedly made,
    that she can treat her election as a nullity, while
    she retains all that she may have received by virtue
    of the election. On the contrary, it is manifest
    justice, that she should avoid the election, only
    upon a restoration of what she has received. Such
    is also the teaching of the cases upon the subject.
    Having made an election, she must abide by it as
    long as she retains the legacy which she has
    received. If she has been defrauded, or if she has
    made an unadvised election, her remedy is in equity,
    to obtain relief upon the restoration of the benefit
    she has taken under the will."

39 Ala. at 280 (citations omitted).

    The foregoing discussion from Adams is of no avail to

Korie.    Unlike Korie, the widow in Adams timely asserted her

right to dower.     The issue in Adams was not whether equity

permitted   a   widow   to   pursue   an   untimely   claim   for   her

statutory right to "take against the will," i.e., her claim

for dower, but whether equity permitted a widow to revoke her

decision to receive the property bequeathed her under the will

and to pursue a timely filed claim to take against the will.

As the Adams Court noted, equity did permit such a revocation,


                                 32
1120848

provided the widow "restor[ed] ... the benefit she has taken

under the will." But Adams does not stand for the proposition

that equity allows a widow to pursue an untimely claim for the

statutory rights granted to her.11

    As to Korie's argument from Steele, in which this Court

held that the widow there was not entitled to belatedly assert

her right to dower, Korie contends that this Court impliedly

recognized that equity may excuse an untimely election.                   She

draws her conclusion from the following statement by the

Steele Court:        "[I]f there be an extension of time within

which    to   elect,   under     an   equitable     construction     of   our

statute, neither the pleadings nor proofs in the present

record justify its exercise."              64 Ala. at 461.

    The language quoted by Korie may be read as implying that

equity    can   be   used   to   evade      the   statutory   time   limits

    11
      Also, allowing a widow to revoke the exercise of her
statutory rights and to accept the provisions of the deceased
spouse's will is materially different than allowing a
surviving spouse to untimely assert her statutory rights and
thereby disrupt the provisions of the deceased spouse's will.
In the former circumstance, the surviving spouse is not
thwarting any purpose expressed by the legislature. In the
latter circumstances, however, the surviving spouse would be
thwarting the legislature's purpose as to the timely assertion
of the surviving spouse's rights, and, unlike the former
circumstance, the surviving spouse would also be thwarting the
execution of the will according to its terms.
                                      33
1120848

applicable to the exercise of a surviving spouse's   statutory

rights vis-à-vis the deceased spouse's estate.   But a closer

reading of Steele reflects that Korie's claim is nevertheless

unavailing.   The Steele Court stated:

         "The statute law of this State provides that the
    widow, for whom provision has been made by the will
    of her deceased husband, may dissent from such
    provision, and 'take her dower in the lands, and of
    the personal estate such portion as she would have
    been entitled to in case of intestacy.'      Code of
    1876, § 2292.      'Such dissent must be made in
    writing, and deposited within one year from the
    probate of the will,' &c. -- Ib. § 2293. It would
    seem that the language of this statute is
    imperative, and, to be availing, the dissent must be
    deposited within one year after the probate of the
    will."

64 Ala. at 461 (emphasis added).12 The Steele Court continued:

         "But, if there be an extension of time within
    which to elect, under an equitable construction of
    our statute, neither the pleadings nor proofs in the
    present record justify its exercise. There is no
    averment, and no attempt at proof, that Mrs. Steele
    was at any time ignorant of any fact or
    circumstance, calculated to influence her choice.
    Neither is it shown, or even possible, that she can,

    12
      The Steele Court referenced Adams and acknowledged that
equity permitted a widow to revoke "'an election ... made in
ignorance of the circumstances calculated to influence her
choice,'" "'upon restoration of what she has received.'" 64
Ala. at 461 (citations omitted). But, as noted above, Adams
did not concern the issue whether a widow could pursue an
untimely filed claim.



                              34
1120848

    by restoration, place the property of the estate in
    statu quo. More than twenty years ago, she was in
    possession of the property devised to her by the
    will, and it is not shown she has ever been
    disturbed in its enjoyment.    It is clear that no
    adverse claim was asserted during the administration
    of the executor, which lasted more than thirteen
    years.   She has no right now to dissent from the
    provisions of the will, and claim dower in the lands
    of which her husband died seized. -– See Collins v.
    Carman, 5 Md. 503 [(1854)]."

64 Ala. at 461-62 (emphasis added).

    In turn, in Collins v. Carman, 5 Md. 503 (1854), which

the Steele Court cited in support of the foregoing discussion,

the surviving spouse, who was insane, died four years after

her husband.   The administrator of her estate attempted to

belatedly assert the deceased wife's right to dower, i.e., to

take against the will.     The trial court rejected the claim,

and the Maryland Court of Appeals affirmed its judgment.    The

Collins court noted that "[t]he law admits of no excuse for a

failure to renounce. ...    To acquire ... rights in opposition

to the will, the law makes the renunciation [of the will] a

necessary act."   5 Md. at 530-32.   See generally 2 John Norton

Pomeroy, Equity Jurisprudence § 513a (5th ed. 1941) ("In very

many of the states statutes have been passed which prescribe

definite periods of time within which the right of election


                               35
1120848

between dower and a provision made by will must be exercised.

[...    If dissent is not indicated within the prescribed time

and in the manner required by law, the widow is conclusively

presumed to have elected to take under the will, no matter how

hard the decision in a particular case may seem to be.        This

is so except in cases of fraud, and perhaps under some other

exceptional circumstances.]" (bracketed material added by

Spencer W. Symms, ed.)).

       Also, as to any analogy that might be drawn from our

precedents regarding dower, we find it instructive that in

Hilliard, supra, we stated that "the evil intended to be

obviated" by the legislature's enactment of a statutory time

limit as to the assertion of the widow's right to receive her

dower interest

       "was the difficulty which previously existed of
       ascertaining when and how an election was to be made
       by [the widow]. ...    This seems to have been the
       only change made by the statute in the existing law
       -– a fixed, a definite term was introduced within
       which she is compelled to signify her dissent to the
       will; and if this is not made, it then, if any
       provision [in the will] is made inconsistent with
       her right under the statute, becomes obligatory on
       her."

10 Ala. at 991.    Also, in McGhee v. Stephens, 83 Ala. 466, 3

So. 808 (1888), this Court noted that the statutory procedures

                               36
1120848

enacted regarding dower claims were "intended to provide for

a speedy and summary election" and that "failure to dissent

within one year from the probate of the will bars [the

widow's] right of dower."           83 Ala. at 469, 3 So. at 810.         See

also Sanders v. Wallace, 118 Ala. 418, 426, 24 So. 2d 354, 356

(1898)("We are of opinion, that the widow by her failure to

dissent from the provisions of her husband's will, in the time

and manner required by the statute, is barred of her right of

dower in her husband's lands ...."); Vaughan v. Vaughan's

Heirs,    30   Ala.   329,    333    (1857)      (holding    that   surviving

spouse's "failure to signify her dissent from the will, within

one year after its probate, is a bar to her right of dower").

    As it did by adopting a time limit for the assertion of

a dower claim, the legislature adopted a limitation period for

the surviving spouse's assertion of his or her right to elect

against the will. There is no indication that the purposes of

the time limitation as to the right of election are any

different      from   the    purposes      for   a   dower   claim,    namely

certainty as to the assertion of the surviving spouse's rights

that could adversely affect the will and efficiency as to the

administration of the estate.               To allow an untimely claim


                                      37
1120848

would be directly contrary to those purposes and unwarranted

in the absence of "fraud or the like."               The circuit court in

the present case found "no fraud or undue influence."                       The

lack of justification for allowing an untimely claim under

such    circumstances      is    bolstered    by the    fact       (1)   that   a

surviving spouse may timely request an extension of time until

he   or   she    can    obtain   information    concerning         the   assets

composing       the    estate,   see   Ala.   Code   1975,     §    43-8-73(a)

(providing that a timely filed request for an extension of

time may be granted "for good cause shown") and (2) that the

legislature has limited any prejudice the surviving spouse

might suffer from asserting his or her right of election based

on insufficient information.             Ala. Code 1975, § 43-8-73(c)

("The surviving spouse may withdraw his demand for an elective

share at any time before entry of a final determination by the

court.").

       In addition to Korie's reliance on the above-referenced

Alabama cases, she also relies on a few cases from other

jurisdictions that have allowed a surviving spouse to pursue

an untimely filed claim for an elective share.                 We find those

cases either to be distinguishable from the present case or


                                       38
1120848

simply to be contrary to the much greater and more compelling

body of authority described above.

    To take one example, Korie cites In re Estate of Bersin,

98 Ohio App. 432, 129 N.E.2d 868 (1955).              That decision,

however,   was   based   on   the   failure   of   certain   statutory

prerequisites (not present here) to the right of a surviving

spouse to make an elective share against the decedent's will.

    Similarly, Korie discusses Mann v. Peoples-Liberty Bank

& Trust Co., 256 S.W.2d 489 (Ky. 1953).            In Mann, a wealthy

testator had a complicated estate plan, which he failed to

revise after the birth of his youngest child:

    "The possible effect of this pretermission on the
    powers of the executors and trustees under the will
    has resulted in the widow, Frances S. Mann, refusing
    to qualify as either co-executor or co-trustee until
    it can be determined whether it would be better for
    both herself and her children to renounce the will
    ... and elect to take her dower and distributable
    share of her husband's estate.     Ordinarily, this
    statutory power of renunciation must be exercised
    within a year of the probate of the will which
    occurred February 5, 1952, but the chancellor
    granted her 'to any time within two months after the
    determination of her rights in this estate by our
    courts by a judgment which shall have become final
    by expiration of time for appeal or affirmance on
    appeal.'     Where an intelligent election is
    impossible, as we believe it is in the case at bar,
    the chancellor has the power to extend the time for
    making an election, if requested to do so within the
    one-year period."

                                    39
1120848

256 S.W.2d at 492 (citations omitted; emphasis added).

    Mann too is distinguishable. In the present case, the

record does not reflect that it would have been impossible for

Korie to make an intelligent election absent some construction

of the will, nor did she timely request an extension of time

within which to file her elective-share claim so that she

could obtain whatever information she thought she might need.

    Korie notes that an accurate inventory and accounting as

to the financial status of the estate would have enabled her

to make an "intelligent choice" as to whether to claim an

elective share.   Although that is true, the legislature has

not required that an inventory and accounting be filed as a

precondition to triggering the time periods pertinent to the

elective share.   And, as noted above, Korie could have filed

a timely request for an extension of time and concurrently

requested that the court order an accounting so that she could

make an informed decision as to whether to file an elective-

share claim. See § 43-8-73(a) ("The court may extend the time

for election for cause shown by the surviving spouse before

the time for election has expired." (emphasis added)); Ala.

Code 1975, § 43-2-530 (providing that the court may require


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the        personal   representative   to   file   an   accounting

"notwithstanding any provision in any will or other instrument

to the contrary").       Korie did not seek financial information

concerning the estate, however, until after her right of

election was time-barred.13

      Korie also asserts that she was unaware of her right of

election.       But, as the Hartt court discussed, such a claim is

insufficient to entitle the surviving spouse to relief.         As

another court has stated:

           "In this case the widow pleads that she was
      illiterate, and ignorant of the law and of her
      rights; that she did not know that, by failing to
      renounce her husband's will within a year of its
      probate, she was thereby accepting it and electing
      to take under it; that the provisions made for her

      13
      In her argument, Korie references the personal
representative's failure to file an inventory until after he
was ordered to do so by the probate court, and she also takes
issue with the contents of the inventory the personal
representative ultimately filed with the circuit court. As
noted above, however, Woodie's will exempted the personal
representative from the requirement of filing an inventory.
Thus, the personal representative had no legal obligation to
file an inventory until ordered to do so by the court. And no
such order was requested until after the expiration of the
time in which Korie might claim an elective share. Nor is
there any evidence indicating that the personal representative
actively thwarted any effort Korie might have made to obtain
information about the assets and liabilities of the estate so
that she could evaluate whether it might be in her interests
to file a timely claim for an elective share.


                                  41
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    and the infant by the will were less than she was
    entitled to under the statute; and that the whole of
    her husband's estate was less than, under the
    statutes, she, as widow, and her three infants,
    would have been entitled to have set apart to them
    during her life and their minority.      The maxim,
    'Ignorance of the law excuses no one,' has not been
    applied in this state with the rigor that it has
    been elsewhere. ... [But] [t]his court has never
    held that one's nonaction, through ignorance of the
    law, could extend or enlarge his legal rights. Such
    a practice would be not alone to put a premium upon
    ignorance, but would be an inducement to perjury, as
    well as to unsettle and render insecure titles which
    the statute had aimed to fix as of a definite
    period, and by not uncertain evidence."

Logsdon v. Haney, 25 Ky. L. Rptr. 245, 245, 74 S.W. 1073, 1073

(1903); see also, e.g., Shelton v. Sears, 187 Mass. 455, 460,

73 N.E. 666, 668 (1905)("The only excuse offered for her

inaction is that she was ignorant of the law, but this is not

sufficient in equity, any more than at law, to overcome the

express limitation fixed by statute within which she must act

or be forever barred." (citation omitted)).

    Based on the foregoing, we conclude that the circuit

court correctly rejected Korie's untimely petition for an

elective    share.   The   judgment   of   the   circuit   court   is

affirmed.




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    AFFIRMED.

    Moore, C.J., and Bolin and Main, JJ., concur.

    Bryan, J., concurs in the result.




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