Thompson v. McGaw , 42 Mass. 66 ( 1840 )

Dewey, J.

The appellees insist that the right of dower is barred by reason of the provision made for the appellant in the will of her husband, and her implied acceptance of the same. They rely on the Rev. Sts. c. 60, § 11, wherein it is enacted that “if any provision be made for a widow, in the will of her husband, she shall, within six months after probate of the will, make her election whether she will take that provision- or be endowed of his lands ; but she shall not be entitled to both, unless it plainly appears, by the will, to have been the intention of the husband, that she should have such provision, in addition to her dower.” The earlier statute of 1783, c. 24, § 8, contained no provision as to the time within which the election was to be made, and each case was decided upon its own peculiar features, no precise rule, as to the effect to be given to the lapse of time, having been adopted. The appellees contend that, by the revised statutes above referred to, a limited period of time is now prescribed, within which this election is to be made, and that the omission of the widow to make such election, within six months after the probate of the will, amounts to a waiver of her right to dower.

Assuming such to be the true construction and proper effect to be given to § 11 of the statute, the delay of the widow to elect would constitute a good prima facie defence to her claim of dower ; and if the case disclosed no other facts in aid of her right, the bar would be perfect. But by the same statute, § 13, it is further provided, among other things, that “if a woman is deprived of the provision made for her, by will or otherwise, in lieu of dower, she may be endowed anew, in like manner as if such provision had not been made.” And the further inquiry is, whether the widow is within the reasonable construction of this section of the statute, and may now insist on her dower, as one deprived of the provision made for her in the will. She now insists that upon the final settlement of her husband’s estate, after discharging all his debts, there will be no residuum, and that the entire provision therefore fails. There has been no laches on her part as to the time of asserting her claim under § 13 of the statute. After the failure of the provision by will in her favor was known, she, at a very early period, and before any change had taken place in the real estate, or any interests had been acquired in the same, by any sale or disposition thereof, insisted upon her right of dower.

Had the provision in her favor been a certain sum of money, certain articles of personal property, or a parcel of real estate, and had she been deprived of the same by its being absorbed in the payment of debts, the case provided for in § 13 would clearly have occurred, and she would be entitled to her dower. The only difficulty here arises from the peculiar language of the provision in the will; “ all the real and personal estate of which I shall be the owner at the time of my decease, after my just debts shall have been paid,” &c. It is said that all she was to receive was the residuum, and therefore she will now receive all that was given by the will, and that the amount of the same was a contingency to which she subjected herself by accepting the provision of the will. And it is true, that as to the amount of this residuum, it was a contingency to which the provision was necessarily subject; but the will clearly contemplated a residuim, more or less. It assumed that the estate was to be a solvent estate, and that after payment of the debts and legacies charged upon it, some provision would remain. Indeed from the clause added by way of further provision, in case of the marriage of the widow, that she should have only.one third of the real estate, it is quite apparent that the expectations, held out to tlie widow on the face of the will presented for her acceptance, were that the provision made for her would, in any event, exceed one third of the real estate.

If the estate be insolvent, and after applying the entire property it shall appear that there was no residuum in the power of the testator to devise, then the provision made for the widow in the will has wholly failed, and we think she may claim her dower. Before such a decree can be passed, however, it will be necessary to ascertain the whole amount of debts and liabilities against the estate, and the value of all the real and personal estate, estimating its value without the incumbrance of the widow’s dower ; and if it shall appear, from a comparison of the debts and liabilities with the assets, that the estate is insufficient to discharge said debts and liabilities, and that no surplus will be left, the widow will take her dower as prayed for in her petition. We see no objection to such a decree, from the fact that it appears on the records of the probate court that at some period prior to filing her present petition for dower, the appellant made a similar application to the judge of probate, which was denied, and from which decision no appeal was taken. At the time of making that application, no sufficient evidence existed of the actual insolvency of the husband’s estate, which would authorize a decree assigning her dower. If, therefore, upon a further hearing, it shall appear that there will be no residuum, under the provision in the will, the appellant will be entitled to a dec ree for dower