The opinion
FOSTER, Justice
(concurring specially.)
I do not think the conclusion reached should be based on the reasoning of the opinion of Justice Lawson, though I agree with the conclusion.
This is a proceeding begun in the probate court administering the estate for the sale of land, in which, by authority of section 271, Title 61, Code, the widow “in effect consented that her dower interest be sold,' so that by virtue of section 272, Title 61, Code, she may be awarded a fair equivalent for her dower interest not exceeding one-sixth of the purchase money. On removal of the estate into equity the proceeding ■continued as begun. After she so consented under section 271, supra, the Legislature passed an act approved July 6, 1945, General Acts 1945, page 686. It amended section 272, supra, so as to fix the maximum at one-third instead of one-sixth of the purchase money. She is now claiming one-third under the amended act.
The Act of July 6, 1945, does not change the widow’s dower rights, but only changes the effect of her consent for the sale to include such rights, and be free from them. Her dower rights are fixed by section 40 et seq., Title 34, Code, at one-half or one-third, as the case may be, and are for the., life of the widow. If dower can be assigned by pietes and bounds (Sanders v. McMillan, 98 Ala. 144 , 11 So. 750 , 18 L.R.A. 425 , 39 Am.St.Rep. 19 ), it must be done unless her consent is given as under section 271, supra, and it cannot be sold and an equivalent awarded her, in the process of administering the estate without her consent. Jenks v. Terrell, 73 Ala. 238 ; Johnson v. Elliott, 12 Ala. 112 .
We are not dealing with the-extent of her dower rights nor any change in the law fixing them. That is controlled by the law and facts in effect and existing at the death of her husband. Boyd v. Harrison, 36 Ala. 533 ; Ware v. Owens, 42 Ala. 212 , 94 Am.Dec. 672. The Act of July 6, supra, does not change the law fixing her dower rights, nor the effect of facts then existing. The amendment does not look to the past, but only to the widow’s consent for the sale of her interest, given after the amendment was enacted. It affects a status created after and not before it became operative.
*80
. We should construe the two sections 271 and 272, supra, so as to make one section out of them. They provide a method by which the widow may sell her dower rights as fixed by law existing at the death of her husband. She need not take advantage of that method. Section 272, supra, applies only when she does so. She has a choice of only two courses open to her to cash in on the present value of her dower: (1) she can refuse to join in the sale and then negotiate with the purchaser to sell her dower rights and force him to pay her their full present, cash value without a ceiling; or .(2) she can join in the sale and recover the present cash value of her dower from the proceeds of sale, but in that event with a ceiling of one-sixth. In either event, there is another ceiling — the present cash value of these rights. She could decline to take advantage of the statute, and a sale by the others may be delayed on that account. While in that status, when nothing has been done, the legislature may provide that if she shall thereafter join in the sale, the present value of her dower should not have a ceiling of one-sixth, but the ceiling ought to be raised to one-third: not that she will get one-third, but she will only get the present cash value'of her interest not exceeding one-third. Sherard v. Sherard, 33 Ala. 488 . The present value is not changed as the basis of her primary right. But the law says that one-sixth may not always be as much as the present cash value which is her primary right. That value which is always .the primary basis of her right may exceed one-sixth. The law says therefore that the ceiling is unjust to her. She ought to have the present cash value, if less than one-third, but she should have no more than one-third. But in any event, it is but a statutory method, optional with her, to sell her dower interest before it is assigned by metes and bounds. That dower interest is in no respects changed nor is the present cash value of it changed, as fixed by law and facts existing at. the .time of the death of her husband. The only change made is in respect, to a, sale, by her as authorized in section 271,. supra. The manner in which that may.be done or the amount she is to receivq which does not affect the extent and value .of that right, or change its presr ent cash value, may be changed by law after her husband’s death and before she comes under section 271, supra, without affecting the legal principles declared in the majority opinion.
So far as now pertinent, her consent vested a status operative alike for and against her and the heirs of the estate.. Its operation as such is due to the provisions of section 272, supra, to that, effect.
The general rule is that the legislature making a grant or fixing a status may withdraw it at will. ' But the limitation on that rule is that this cannot be done when to do so destroys a right which has vested under it. Blake v. State, 178 Ala. 407 , 59 So. 623 ; Luke v. Calhoun County, 56 Ala. 415 . See, also, First National Bank v. Jackson County, 227 Ala. 448 , 150 So. 690 ; Ballenger v. State Board, 234 Ala. 377 , 176 So. 387 ; Samples v. State, 19 Ala.App. 478 , 98 So. 211 , certiorari denied 210 Ala. 544 , 98 So. 803 .
The limitation of section 272, supra, creates no right which subsequent legislation cannot modify unless there shall have been an acceptance of its terms as provided in section 271, supra, before such modification is made.
It is similar in many respects to an option right granted without consideration by one private person to another. It may be withdrawn at pleasure until it is accepted, but not afterwards except by mutual consent. Cowin v. Salmon, 244 Ala. 285 (9), 13 So. 2d 190 .
This widow accepted the option before the amendment was adopted, and before its terms were altered. The amendment cannot control a situation thus created. To do so would give it retroactive effect, which is not permissible. There was no error in holding that it is not so.
I therefore concur in the conclusion.