(dissenting). The plaintiff appeals from the judgment of the district court. She is the widow of Jacob Dolwig, deceased intestate. Defendants are his children. She brings this action against them to set aside a pretended judgment in the county court awarding them all his property. The plaintiff is an illiterate foreigner. She knows nothing of the language, the laws or the ways of this country, and by reason of her ignorance and mental incapacity she has been sadly duped and prevented from asserting her legal rights.
Jacob Dolwig, the deceased husband of plaintiff, died about December 15, 1910. He owned the south half of section 33 — 139—95, two lots in Dickinson, and $1,738.40 in good promissory notes. The estate amounted to over $6,000. On October 13, 1911, there was made a final decree of distribution. It gave four daughters of the deceased each $500 in cash and an undivided one-fourth interest in two lots in Dickinson. To John Dolwig it gave the rest and residue of the estate, including the south half of section 33-139-95. To Theresia Dolwig, the plaintiff, it *179gave nothing, on the ground that during the life of Jacob Dolwig she had received her share and that she had waived all rights to any share.
On December 31, 1910, the deféndant John Dolwig procured the signature of the plaintiff to a paper consent that he be appointed administrator, and that she waive the service of all citations or notices in the course of the administration. Then on February 7, 1911, without any notice to plaintiff, an order was made appointing John Dolwig administrator, and letters of administration were issued to him. On February 7, 1911, an order was made appointing appraisers. On October 13, 1911, there was filed a final report of the administrator. On October 13,1911, an order was made fixing October 13,1911, as the day for hearing the final report. On October 13, 1911, the final report was allowed. On October 13th, there was made a final decree of distribution. On October 13th, there was made an order discharging the administrator, and it was all done without any notice to the plaintiff. When Jacob married the plaintiff he was a widower of fifty-one years and she was forty-nine. He and his son John at once commenced to lay schemes to forestall and beat the plaintiff out of her rights. Soon after the marriage, as it seems, they obtained her mark to a paper waiving all her claims to the estate of Jacob Dolwig in consideration of $200. Then she and Jacob Dolwig deeded to the son John certain lands, four horses, some cows, and farm machinery. John was to pay $400 and during the life of Jacob to furnish them a house with some flour, sugar and coal. And thus Jacob turned over practically all his property to his son John and made himself a mere pauper and a dependent, and it was all done to defraud the wife of her inheritance. It was all a fraud on its face. It is of no use to discuss the testimony. On the conceded facts it is folly to argue that plaintiff knowingly and advisedly signed these papers to benefit the defendants and to reduce herself to a state of abject poverty and dependence and want. A person does not sell his birthright for a mess of pottage only when the purchaser takes advantage of his ignorance, necessity, or distress. If the plaintiff received $200 for signing an alleged waiver of her inheritance, it was no consideration at all. It was not even the pocket money to which she was justly entitled during the seven years she lived with deceased as his wife. During the life of Dolwig she received nothing only a poor living, and whatever she did to waive her rights, either during his life or afterwards, must *180have been the act of an ignorant, incompetent, or weak-minded person. It must have been the result of deception and undue influence. The homestead and inheritance rights of the widow were fairly worth $3,000 or more. This should have been ascertained and set apart to her in accordance with the statute. Comp. Laws 1913, §§ 5743, 8724, 8725.
So far as concerns the rights of the plaintiff, the proceedings of the probate court were null and void. She was not served with any process; she did not appear, and the pretended waiver was a mere fraud. She knew nothing of a waiver or the legal import of the document which is claimed to be a waiver. There was no marriage settlement. The plaintiff is the surviving wife of the deceased, and as such she is entitled to all the rights of a surviving wife as provided by statute.
I fully concur in the dissenting opinion of Justice Grace. It is not true, as stated in the opinion of Justice Birdzell, that the planitiff was apprised of her rights, or that she ever had a day in court. She was a poor, ignorant, helpless woman, who could not read or write English, and knew nothing of our laws or customs. It was the bounden duty of the court to protect her rights and to guard her against imposition and the lack of competent counsel. When this court certifies that a person is competent and may safely be trusted to give counsel and to defend the rights of suitors, it becomes the duty of the court to make good its certificates by guarding the rights of the poor and ignorant when their counsel fail them.
The plaintiff gave one McBride $25 to advise her and to protect her rights. lie accepted her money and did not a thing to protect her. He offered to accept $50 for taking an appeal, but he had done nothing to lay the foundation for an appeal. He showed either gross incompetency or neglect.
No judge can honestly assert that the plaintiff has been given her legal rights. She has been buncoed by a shameful and mock legal proceeding. The pretended judgment of the county court is manifestly and confessedly wrong. It is a fraud on the plaintiff and no court should hesitate to declare it null and void.