concurring:
I concur in this affirmance; but I would rest the decision on the broader, and, as I think, the more certain ground, that where a widow makes a voluntary election to take under or against her husband’s will, the way is open to her to retract so long as nothing has been done under her election to alter the condition of the estate. She is concluded by her election made in court after twelve months from her husband’s death, because the act of assembly expressly so declares; but the case is totally different where the election is voluntary. We have no act of assembly providing for or even recognizing a voluntary election; nevertheless, it is entirely competent for a widow, in order to expedite a settlement of the estate, to make her election in advance of the period fixed by the statute when she may be required to do so. When she makes such an election, however attested, it is simply a declaration of a purpose which she is entirety free to retract, except as it has induced action upon the part of others which would 'make it inequitable to allow her to choose differently. I know of no legal ground on which a denial of such right can rest, except as the election is shown to establish some contract relation. This may be the case where the election enters into and is part of a family settlement; but where, as here, it is a matter simply between the widow and the executor of the will, intended to serve no other purpose than to guide the executor in the settlement and distribution of the estate, it has not the first element of contract until acted upon. Cases abound where the widow has been held to an election voluntarily made, but always on equitable considerations. If nothing has been done under her election, no part of the estate converted or distributed, and no one prejudiced, there can be no ground for equitable interference by way of restraint. In this case the retraction came within a few months after the election had been made. During the in*528terval not a single step had been taken in the settlement of the estate, and it is not pretended that the situation had changed with resp'ect to the estate or the situation of the parties interested therein. I would rest the decision on the sufficiency both in law and equity of the widow’s retraction.