On the final settlement of her administration of the estate of Robert T. Glenn, deceased, by the appellant, his widow, the following questions arose : 1st, Whether the administratrix should be allowed a credit for the amount of her separate statutory estate received by her husband in money, with interest from his death ; ‘2d, Whether she should be charged with the value of the slaves belonging to, the estate, because she had not sold them to pay her debts, but had employed them on the plantation without authority, until their emancipation in 1865. Or, if not with the entire value, with so much as would be equivalent to her separate estate as claimed by her. 3d, Whether she should be charged for the use and occupation of the dwelling house and appurtenances, from the death of her husband to the time of her resignation, *545or during the time she actually occupied it, because her separate estate was worth more than her dower interest and distributive share would be on a final division and distribution of the estate. The dwelling house was on the plantation, but so situated that it could be used without interference with it. She had occupied the house a portion of the time, with two of her three minor children. 4th, Whether she should be charged with certain certificates of deposit entitling her to receive four per cent. Confederate bonds, because she had obtained them with Confederate currency derived from wood cut by her off the plantation and sold. The greater portion of these certificates were taken in her own name, but it is admitted that the funds so invested belonged to the estate. 5th, Whether the distributees might elect to charge her with the hire of the slaves, instead of the proceeds of the crops.
Mrs. Billingslea became entitled to her dower interest immediately on the death of her husband, unless she was excluded by ber separate estate. — 1 Scrib. Dow. 618 ; Boyd v. Harrison, 86 Ala. 533; Rev. Code, § 2380. Her separate estate also became hers exclusively the moment it was freed from the marital restrictions. Her right to a distributive share of her husband’s personal property attached on the same event, but it was not enforceable until the debts could be ascertained, and might be diminished by them, or entirely divested by the insolvency of the estate. As her dower was a higher and more absolutejinterest, she had the right, as soon as practicable after the death of her husband, to have her separate estate and her dower interest estimated at their respective values when she became entitled to them.
Section 2381 of the Eevised Code provides that if the separate estate be less than the dower and distributive share, so much shall be allowed as will make it equal. Does this mean that her separate estate shall deprive the widow of her life estate in a portion of the lands of her husband, and compel her to take the equivalent? The statute does not say so, nor is such an interpretation imperative. On the contrary, if she cannot have her life estate in the full proportion of the lands, she may take it in less, *546and if the heir insists on it, perhaps, must do so. Because she can not have a thousand acres for life, may she not have five hundred ? The common law regards a life estate in lands as superior to an absolute estate in personal property, and favors dower. The statute prescribing an equivalent under certain circumstances is in restraint of dower, and should be strictly construed.
Whether Mrs. Billingslea was entitled to retain the dwelling house and appurtenances free of rent, must depend upon whether her separate estate by its value excluded her from dower. If it did not, she was so entitled, because the quarantine privilege depends upon the fact of dower, and not upon its amount.
She was entitled to the corpus of her separate estate received by her husband in money, with interest from the death of her husband.
In determining whether she was entitled to dower, the value of her dower interest and of her .separate estate at the time of her husband’s death, must be ascertained.
The proposition to charge the administratrix with the value of the slaves, because she did not sell them when she might have done so, and pay the debts of the estate, can not be maintained. Such liability can only be incurred by some negligence or miseonduct.which would amount to a devastavit. This part of the estate was so invested at the time she assumed the administration. There was .no evidence of want of reasonable care and diligence, nor of any necessity for a sale before the late war. After that commenced, it was exceedingly questionable what course would be the best. Besides, we cannot hold that she was obliged to apply to the courts then existing for authority in the matter. She was compelled, from thej"necessity of the case, to exercise her best judgment. — Harrison v. Mock, 10 Ala. 185; Houston v. DeLoach, 43 Ala. 364.
In McCreelis’ Dist’rs v. Hinkle, Adm’r, 17 Ala. 459, it was held that if an administrator without authority should continue tb employ tho slaves of the deceased in the business in which they were engaged at. the time of the intestate’s death, and in so doing incurs expenses, the distributees may elect to take the use or hire of the slaves, or the profits *547realized by the administrator; they cannot do both. If they elect to charge the administrator with hire they abandon all claim to the profits ; but if they claim the profits, they must take them cum onere. Under this authority, we decide that the distributees may elect to claim the hire of the slaves, or the profits realized by the administratrix; and having once selected, they must abide by it. But this principle may require some modification in its application during the war. To hire the slaves was the most apparent duty. But if, for any cause shown, an undue risk would have been incurred by so doing, or any decided advantage would have been derived by retaining them on the plantation, or for any reason a prudent and efficient person would have pursued the one course or the other, the administratrix ought to have the benefit of those trying circumstances which confounded wisdom.
As to the item respecting the wood and the Confederate bonds, no influence should be given to .any want of Sanction of the probate court to the funding in Confederate securities. If the administratrix sold wood taken from the plantation by the labor of the slaves, with any profit to herself or to the estate, for which she has not accounted, she is liable to account. If she received payment for it in Confederate currency, because it was the best she could obtain, and it perished on her hands without negligence or default on her part, she should not be held responsible. This is on the supposition that she is proceeded against for profits realized. — Houston v. Deloach, 48 Ala. 364.
This opinion is not in accord with the judgment of this court, when the case was here before under the title of Glenn v. Glenn, 41 Ala. 571, or with that in Steadman v. Steadman, 41 Ala. 473. The principles announced in them have not as yet affected to any considerable extent the interests of the people. They were the conclusions of a majority only of the court, from which the Chief Justice dissented in a most clear and conclusive argument. We are constrained to overrule them so far as they differ from the decision in this case.
The transcript is insufficient to enable us to determine more precisely than we have done the assignments of *548error, but perhaps enough has been said to direct the further action of the probate court.
The decree is reversed, and the cause remanded.