Shannon v. White , 109 Mass. 146 ( 1872 )

Gray, J.

The allowance which the probate court is authorized to make to a widow out of the income of the estate of her husband in the hands of a special administrator appointed on account of the pendency of a suit concerning the probate of a will, as an advancement for her support, cannot, by the express terms of the statute, exceed such portion of the estate as she would be bntitldd to whether the will is finally proved or not. Gen. Sts. 6?. 94, § 9.

The domicil of Oliver X. Shannon is stated in his will, and in the decree of the Indiana court for the original probate thereof, to be in Indiana. The petitioner offered no evidence having any tendency to control this, or to show that his domicil was in this Commonwealth at the time of his death..

If his domicil was then in Indiana, and his will shall be finally proved and letters testamentary granted in this Commonwealth, such probate will be ancillary to the probate in Indiana ; all his estate found here, and not required for the payment of creditors in this Commonwealth, must, whether distributed by our probate court, or transmitted to Indiana for distribution, be disposed of according to his will, and by that will he gives her nothing; any rights of succession in or allowance out of his personal property must be regulated by the laws of Indiana, and there is nothing in the case to show that by those laws his widow can claim any part thereof as against his will giving it all to other persons; she is not entitled, under our laws, to dower in his real estate, without filing in the probate office a written waiver of the provisions of the will, (which she has not done,) and it is at least doubtful whether any right to waive these provisions and claim dower can be asserted except in the state of the testator’s domicil. Story Confl. Laws, §§ 479 a seq., 481 & seq. Enohin v. Wylie, 10 H. L. Cas. 1; 1 De Gex, Fisher & Jones, 410; 1 Swab. & Tristr. 118. Doglioni v. Crispin, Law Rep. 1 H. L. 304 ; 9 Jur. (N. S.) 653. Ennis v. Smith, 14 How. 400. Parsons v. Lyman, 20 N. Y. 103. Fay v. Haven, 3 Met. 109.

The petitioner therefore fails to show that, if the will of Oliver X. Shannon is finally proved, she will, assuming her to be his widow, be entitled to any portion of the income of the estate. As this is a conclusive reason against making any allowance under !;he Gen. Sts. c. 94, § 9, it is unnecessary, in order to dispose of this appeal, to consider any of the other questions which have been argued.

Decree affirmed.