dissenting. I know not how long a course of erroneous proceeding under a statute will justify this court in considering it as legal, nor how far a deference to a Book of Forms will authorize us in disregarding a statute; but, unless some such considerations are to govern us, it appears to me that we are imperatively called on to set aside the. judgment of the County Court. This court have jurisdiction of all questions of law arising in the. course of proceedings of the County Court in probate matters, in the same manner as in other cases. If the Probate Court and County Court have .mistaken the law in this case, it is our duty to correct their error ; and we should not be deterred from it by any fear of imaginary consequences. If they have not mistaken the law, then the practice of the court of probate may be persisted in, and, moreover, ought not to be departed from. In my opinion the court of probate have not proceeded according to the *77statute, — their decree should have been vacated on appeal, — and the County Court erred in not vacating it, — and this would be enough to warrant us in reversing the judgment complained of, without inquiry as to what will be the effect of our decision on other decrees, which have been made and acquiesced in.
But, further, if it were a necessary consequence, resulting from this decree, that all others similar are void, I do not know that we are at liberty to disregard a statute, or refrain from giving it a correct construction, for fear of the consequences. More is to be feared from our departing from the law, than from our declaring it, in a case before us.
The duty of the court of probate and their power on this subject are given in the first section of chapter 47 of the Revised Statutes. The section is, that the widow shall be allowed her articles of apparel and ornament, and “ such other part of the personal estate of the intestate as the prohate court may assign to her according to her circumstances, and the estate and degree of her husband.” The powers of the court of probate are judicial in determining what part of the estate she shall have, according to the degree of her husband, &c., and it appears to me these powers must be exercised by the court, and cannot be delegated to any one else. The duty of the court is not to determine the amount in value, or the specific number of articles of property, but, judging from her circumstances, and the estate and degree of her husband, to select and assign to her such part as the court shall think proper; and the decree of the court, unappealed from, is conclusive.
It appears to me to be necessary that the court of probate should select and designate the property to be assigned to her, and, by their decree, make the assignment; and that the court can no more authorize her to make the selection than they could the executor, or administrator, or one of the heirs, or any third person, interested, or indifferent. The propriety of an appeal by creditors, heirs, or persons interested, might depend on the selection of the property assigned, as its effect on the estate might be more or less injurious, according to the article selected. Moreover it might be a subject both of dispute and litigation, as to what articles she selected,— whether she should specify in writing, or whether it might be done *78verbally, — whether in fact she had made her final selection, or had altered or changed her mind before she made her final selection,— as there was no way; under the decree in question, to procure any evidence of her having made the selection, or at what time it should be made. In short, I think that the proceeding of the court of probate was wholly unauthorized by statute and irregular.
That it is void, it is not necessary to say, though in my opinion it is void altogether. In the case of Kendrick et ux. v. Harris, Ex’r, 1 Aik. 273, it was declared to be the duty of commissioners, in setting out the dower of the widow, to appraise the same on a view of the premises, and, when they took a former appraisal for their guide, their proceedings were held to be improper, and the decree of the court of probate, accepting their doings in this particular, was set aside. In the case of Hancock v. Hubbard, 19 Pick. 167, it was held that a decree of the court of probate, directing the distributive share of an heir, who was indebted to the estate, to be paid over by the administrator to the other heirs, on the ground of such indebtedness, was void, and that a non-compliance with it by the administrator was therefore not a breach of his bond. In the case of Hendrick et ux. v. Cleaveland, 2 Vt. 329, it was declared that a court of probate is a court of special and limited jurisdiction, and that, if it appear on the face of its proceedings that it has exceeded the authority given it by law, its orders and decrees are absolutely void, and may be treated as- a nullity. A decision to the same effect was made in the case of Smith v. Rice, 11 Mass. 607, where it-was held that, if the judge of probate exceed his authority, or have proceeded in a course expressly prohibited by law, his acts or decrees may be treated as void.
In the present case I think the court of probate exceeded their authority, delegated their power to another, and proceeded directly contrary to law, and that therefore their proceedings are void. It is to be remembered, however, that we are only called upon to review and correct a question of law determined by the county court in probate matters, and I understand all my brethren to agree that the court of probate were erroneous in their view of the law.