Pollard v. Pollard , 83 Mass. 490 ( 1861 )

Bigelow, C. J.

The bequest in this case to the widow of the testator is made in express terms in lieu of dower, and on condition that she relinquishes all her right and title thereto.

A wife cannot be deprived of her dower except by her own consent. Therefore, when she accepts a provision in her husband’s will as a substitute for this existing legal right, the law regards her as standing in the light of a purchaser for a valuable consideration, and entitled to receive the whole of the sum given by the will, for which she has relinquished her life estate in one third of the testator’s real estate, in preference to other legatees, who, being only objects of the bounty of the testator, and not having any legal claim on his estate, are regarded as volunteers, and are not allowed to take until the widow has received the full amount of the bequest to her. . If, therefore, the whole estate is insufficient to meet all the legacies in the will, the widow is to be paid in full, and the other legacies must be abated proportionably. Hubbard v. Hubbard, 6 Met. 50. Williams on Executors, 839.

We think the plaintiff is entitled to interest on the sum given to her by the will from the death of the testator. The case falls within the principle of an exception to the general rule, that interest is not to be paid on legacies until after the expiration of one year from the death of the testator. That exception is that, where money is given by will for the maintenance and support of a minor child of the testator who has no other means of support, interest is allowed from the death of the testator; because in such case the presumption is that the testator intended that such support and maintenance should commence immediately after his decease. The same presumption exists when a legacy is given to a widow in lieu of dower, and no Other means of support, during the first year after the death of the testator, are provided by the will. Williamson v. Williamson, 6 Paige, 298, 305. Judgment for the plaintiff.