Delay v. Vinal , 42 Mass. 57 ( 1840 )

Dewey, J.

The husband of the demandant having been seized, during coverture, of the premises in which dower is demanded, she became entitled, on his decease, to her dower in the same, and may now enforce that right, unless she is legally barred by her own acts. By St. 1783, c. 24, § 8, it is provided, in the case' of a devise by the husband to the wife, that unless it plainly appears by the will that the devise was intended to oe in addition to her dower, the widow must waive the provision in the will, if she would claim her dower. In the present case, the provision made for the demandant, in the will of her husband, not only does not plainly appear to have been intended to be in addition to her dower, but was manifestly de signed to supersede any such claim

The question then arises, whether she has waived the provision in her behalf contained in that will.

That the right of election ought to be exercised within a reasonable time, seems to be well settled. But what should be the precise limit as to the time within which such waiver of the devise could be properly made, was left without any distinct or definite provision until the enactment in the Rev. Sts. c. 60, §11, requiring the widow, within six months after the probate of the will, to make her election whether she will take the devise in the will of her husband, or be endowed of his lands. The right of the demandant, however, accrued previously to the revised statutes, and must therefore be settled by some other rule. In the absence of any particular statute regulations, it would seem reasonable that the widow should have at least a suitable opportunity for attaining full knowledge of all the circumstances necessary to enable her to form a judicious opinion upon the question of accepting the provision made for her in the will, or of waiving that and talcing her dower at common law.

The present, like most similar questions that have arisen, does not depend upon the effect to be given to mere lapse of time, during which the widow has omitted to waive formally the devise to her, but presents also certain acts on her part indicating her acceptance of the provisions of the will.

Under the authority given her by the will, she disposed of two parcels of the real estate of her husband, viz. the Green Island estate and the Douglas farm. The legal effect of this exercise of power under the will must depend very much upon the view that is taken of the nature of this authority, and the object and purposes for which it was given, and with reference to which it must be understood to have been exercised.

The demandant contends that the devise to her, and the power to sell real estate, are not so connected, that the exercise of the latter implies an acceptance of the former; that it may well be taken that the widow might exercise it solely for the purpose' of discharging the debts of the testator, without authorizing an inference of her accepting any provision for herself that would deprive her of her dower. On the other hand, it is contended by the tenant, that the power to sell was connected with the provision made for the demandant for her own support and the maintenance and education of her children, as well as the payment of debts, which latter must of course be discharged before she could enjoy the estate ; and that the demandant, having acted under this power, acted for both purposes, and her acts therefore not only are inconsistent with a waiver of the devise to her, but, on the contrary, furnish a strong inference of her acceptance of the same.

It seems to us, that the provision made in the will for the widow, and the authority to sell the real estate, are connected, and constitute one general arrangement for securing to her the full enjoyment of the bounty of the testator. The power to sell is not given to her as executrix, or to be exercised by her in that capacity, but vested in her, independently of her acceptance of the trust of executrix, and as the means of carrying into effect the provisions of the will in her favor.

The sale by her under an authority contained in the will, in the clause under consideration, would seem fully to authorize the inference of an acceptance by her of the devise in her favor, unless in executing the power of selling, she expressly disclaimed all provision in the will for her benefit, and asserted her purpose to insist upon her right of dower.

It was suggested in the argument, on the part of the demand-ant, that if the widow had in fact done some acts which might indicate an acceptance of the devise, yet if this was done under a misapprehension of her right, or in ignorance of facts materially, affecting her pecuniary interest in the matter, she ought not to be concluded by her acceptance of the devise under such circumstances. This rule has been liberally applied in many cases in the English courts. Its applicability to the present case may well be doubted, upon the facts stated. There was nothing in the circumstances of this estate, that was calculated to mislead the demandant, or that may be supposed to have disappointed her reasonable expectations. The right to recur to her dower at common law, upon such ground, if exercised at all, after having indicated an acceptance of the devise, should be at the earliest possible period after she should come to the knowledge of these facts, from an ignorance of which she had been misled. But m the present case, the widow, acting in the capacity of executrix, was early apprized of the situation of this estate, but continued to act without asserting her rights, and stood quietly by, withholding all notice of any intended future claim of dower in the premises, at the time of the sale of the land to the tenant under an authority of the court; no claim of dower being made until November, 1838, a period of sixteen years from the death of her first husband, two years of which elapsed before her marriage with Delay, and three years after the death of Delay.

We have not found it necessary to consider particularly the effect of the conveyance by the demandant and her second husband of this real estate, under the order of court just referred to. The principle settled in the case of Poor v. Robinson, 10 Mass. 131, would go very far to sustain a defence put solely upon this ground, unless the circumstance that the demandant was a feme covert at the time of executing the deed should prevent its operation as respects her. The defence being well sustained upon other grounds, the effect of that conveyance is not to be considered as adjudicated upon in the present case.

Demandant nonsuit.