delivered the opinion of the court.
This case stands on a demurrer to the amended petition. The ancestor from whom the lands descended died in 1852 ; consequently the act in the code of 1845 will determine the widow’s right to dower in her husband’s real estate. By the first section of that act, the widow, as a matter of right, at the death of her husband, was entitled to be endowed of the third part of all the lands whereof her husband, or any other person to lfis use, was seized of an estate of inheritance, at any time during the marriage, to hold and enjoy during her natural life. When the husband died without any child or other descendants in being capable of inheriting, the widow had her election to take her dower as provided in the first section discharged of debts, or to take all the real and personal estate, which came to the husband in right of the marriage, remaining undisposed of, absolutely, and one-half the real and personal estate belonging to the husband at the time of .his death absolutely. The provisions of the dower act contained in the code of 1835 correspond, in relation to the matter under consideration, with those contained in the code of 1845. In the case of Hamilton v. O’Neil, 9 Mo. 10, which arose under the act of 1835, it was held that the widow was entitled to dower under the first section of that act, which is similar to the first section of the act of 1845, unless she made an election to take otherwise as prescribed by law. It is obvious that when a right grows out of an election, it can not arise or come into existence until *299an election is actually made. (United States v. Grundy, 3 Cranch, 337.) The husband of the ancestor of the plaintiffs having died without children, and she having failed to make an election as to the dower she would take, there was no right or estate in her capable of descending on her heirs. The right of election being personal, it was not transmissible by descent; nor is it conceived that a failure to notify the widow of her right to make an election can confer on her heirs a right which they did not otherwise possess. It is unnecessary to determine the question, whether, if by any fraudulent contrivance of those interested to prevent an election a widow fails to make one, they will be permitted to reap the fruits of their misconduct. We conceive that an election can only be made in the manner prescribed by law. This rests on obvious principles. The matter of an election is purely a creature of positive law. Outside of the statute it has no existence. Hence if it is not clothed substantially with the requisites exacted by the statute, its existence can not be recognized. (Kemp v. Holland, 10 Mo. 259.)
But there is a feature in the petition of the plaintiffs which commends their cause to the more favorable attention of the court. That feature is, that their rights, although failing under the law of election, are supported by a valid contract. We can see no objection to this view of the case. Parties sui juris are as competent to contract in relation to dower as to any other subject. The widow could agree with the heirs capable of binding themselves as to the quantity of the estate she should take as doweress. If a mistake has occurred in committing the agreement to writing, there is nothing in the nature of the subject which exempts that agreement from reformation according to principles of equity more than any other agreement. If the alleged mistake is clearly and satisfactorily established, there is no reason why it should not be corrected as to all those who were capable of contracting and who are bound by the agreement. Married women and minors would not of course be bound.
Under our system of jurisprudence, there is nothing which *300forbids a party having an equitable title from applying for partition in the forms adapted to such relief employed in courts of equity. It is well settled in the jurisprudence of America that a mistake in a written agreement is not only a defence in equity, but that a complainant may be entitled to the reformation of a contract and to the relief consequent upon such reformation ; or, in other words, that a mistake in a written agreement is not only a defence to a petition, but it may be stated as a ground of equity, and affirmative relief be granted upon its being clearly and satisfactorily established. The circumstances of this case strongly corroborate the allegation of the bill as to the error committed in draught-ing the agreement set up as the foundation for the relief sought by this petition, and if they are not explained away or counteracted in proof, should entitle the plaintiffs to a judgment against the parties to it who were sui juris.
Judgment reversed and remanded;
Judge Richardson concurs. Judge Napton concurs in reversing the judgment.