Farnum v. Bryant , 34 N.H. 9 ( 1856 )

Fowler, J.

By the provisions of the third section of the act of July 2, 1822, (Laws of 1830, p. 355,) in force at the date of the execution of the will of Amos Farnum, if there were any child, or any lineal heir of a child in the descending line, which had no devise or legacy by the will of a deceased father or mother, and which was not named or referred to in the will in such manner as to show that it was not out of the mind of the testator at the time of making the will, every such child or heir was entitled to inherit and have assigned to it the same portion in the estate of the deceased as it would have been entitled to if such deceased person had died intestate. The enactments of the Eevised Statutes on this subject are precisely similar, and it is understood that the decree of the judge of probate appealed from is based solely on this provision of the statutes.

It has been very ingeniously contended in the argument of the counsel for the appellant, that under the construction given to this statute in our own State, in the case of Merrill v. Sanborn, 2 N. H. 499, and to a similar statute of Massachusetts by the supreme court of that State in the numerous cases referred to, the children of Amos Farnum might properly be excluded from any share of his estate under this will, it being utterly incredible that a father of sound mind should in terms give the whole of his estate to his wife, the mother of his children, forgetting that he had any children by her.

Without considering this question we thinh it entirely clear, on well established principles, that if Merit Farnum, not being named or referred to in the will of his father, were entitled under the statute to the same share of the estate as if no will had been made, he so conducted as to preclude himself or his representatives from claiming that share.

The will of Amos Farnum passed his whole estate to his widow, subject to the right of his children, not named or referred to therein, to claim their respective shares thereof. This right it was competent for them to renounce or waive. It was no greater or more indefeasible than the right of a devisee or legatee to the devise or legacy given to him under a will; and it is well settled that such devise or legacy may be waived or renounced by some unequivocal act. 4 Kent’s Com. (5th ed.) 533; Townson v. Tickel, 3 Barn. & Ald. 31.

The disclaimer or renunciation of a devisee or legatee must be by some unequivocal act, and it is left undecided whether it may be verbal only, although some judges have so held. A disclaimer by deed is sufficient, as also by proceedings in a court of record.

By the second section of the act of July 2, 1822, (Laws of 1830, p. 355,) it was provided that if the widow of any person deceased should waive the provision made for her in the will of her deceased husband, by a writing filed with the judge of probate before whom the will was proved, she shall have dower assigned her, and every provision made for her in the will should be void. Substantially the same provision exists in the Revised Statutes.

The right of a child to a share of the estate is of no higher nature than that of the wife to the provision made for her by the will, and if one may be renounced and waived by a writing filed with the judge of probate, there would seem to be no reason why the other might not be renounced or waived in the same manner.

The petition or statement, signed by Merit Farnum, dated February 18, 1852, addressed to the judge of probate and filed in the probate office, is one of those solemn, unequivocal acts, becoming a matter of record, which was sufficient effectually and forever to renounce all his claim to any share of his father’s estate in opposition to the will. It was, in fact, a proceeding in the court of probate, of at least as high and solemn a character as a deed under seal. By it he not only admits the due execution of the will of his father, but expressly acknowledges his satisfaction with its provisions, and prays that the same may be carried into effect by the settlement of the estate, agreeably to its tenor. This cannot, it seems to us, be otherwise construed than as a full and complete assent to the conveyance to the widow, by the will, of all the estate of his father, by ratifying and confirming the instrument which assumed to make the conveyance. It was not a mere authority to the judge to treat the will as valid for the time being, but, so far as he was concerned, an express ratification and confirmation in writing of the devise and bequest to the widow and mother. It was an unequivocal waiver of all and every objection that he could make to the will by reason of his not being named therein. Its object would seem to have been to carry into effect, by a writing placed among the records of the court, the intention of the testator, as evidenced by the will, which intention might otherwise have been defeated by what is to be regarded rather as a technical and formal, than as an equitable exception.

We áre, therefore, of opinion that the petition in writing of Merit Farnum to the judge of probate, filed in the probate office, constituted, under the circumstances, such a sufficient renunciation and waiver of all his rights as one of the children of Amos Farnum, as forever to debar him or his representatives from asserting those rights in opposition thereto ; and for this cause the decree appealed from should be reversed.

But there is another ground on which we are satisfied that Merit Farnum and his representatives should be estopped from claiming any share of his father’s estate. As appears from the case, all the surviving children, the lineal descendants of the one deceased, and the widow, united in this application to the judge of probate to have the will proved and the estate settled conform-ably to its provisions. The children and heirs had all a common interest in the maintenance and support, in a proper manner, of the widow, and they may be supposed to have had a common feeling that the intentions of the testator should be carried out, as expressed in the will. They may be presumed to have cherished a mutual confidence that any surplus of the estate conveyed to her, remaining unexpended at the death of the widow, would be fairly and equally distributed between them. They may each fairly be presumed to have signed the petition in the expectation and consideration that all the others would do the same; for it could hardly be expected that one would be willing to relinquish his share of the estate to wdiich all were equally entitled, while the others were to receive theirs. They all signed the waiver or renunciation. It was filed in court and acted upon. The estate was settled according to its prayer, so far as all the children and heirs were concerned, except Merit. Their shares of the estate have passed to the widow under the will, and to permit him under these circumstances to revoke his waiver or renunciation of his claim to a share of the estate, would operate as a direct fraud upon the other heirs.

It does not appear that the administrators of Merit Farnum gave to the other heirs of Amos any notice of their intention to revoke this waiver. If the widow should die intestate, the administrators might claim and hold one third of her estate, much of which was acquired through this very joint waiver of the heirs, which they themselves now seek to avoid and set aside.

It is, however, sufficient to say that this waiver or renunciation of the heirs of Amos Farnum was acted upon by the parties interested in it; the will was established and the estate administered under its provisions. The shares to which the other two children would have been entitled have passed to their mother by the decree of the judge of probate. The condition of the parties has been changed in consequence of it. The widow and administrator relied upon and acted on the faith of it. They, as well as the other heirs, have changed their previous position by reason of it, and neither Merit Farnum or his representatives can be allowed to revoke it, when its revocation will operate to their injury. Merit Farnum having, by his own acts and representations, induced the widow, heirs and administrator of Amos Farnum so to conduct as to alter their previous position by proving the will and permitting the estate to be administered according to its provisions, such acts and representations being designed thus to influence them, cannot deny the validity of those acts or the correctness of those representations. 1 Greenleaf’s Ev., sec. 207, and authorities; 3 Kent’s Com. 452; Tufts v. Hayes, 5 N. H. 453; Pickard v. Sears, 6 Ad. & Ell. 475; Watkins v. Peck, 13 N. H. 373; Thompson v. Sanborn, 11 N. H. 201; Morse v. Child, 6 N. H. 521.

On both grounds, then, Merit Farnum and his representatives were precluded from claiming any share of his father’s estate. The decree of the judge of probate heretofore made must, therefore, be reversed and a new one entered, distributing the whole balance of $3594.21, remaining in the hands of the administrator, to the appellant. Decree reversed.