Hathaway v. Estate of Hathaway , 44 Vt. 658 ( 1870 )

The opinion of the court was delivei’ed by

Steele, J.

The pleadings in this case terminated in three, and only three, issues. Two of these issues concluded to the court, and one concluded to the country. All these issues were found and decided in favor of the plaintiff, and yet judgment was rendered for the defendant. This result, which is apparently irregular, was reached solely upon the gi-ound, as stated in the exceptions, that the widow was barred of the dower and homestead by the statute, “ for the reason that she did not waive the provisions made for her in the ante-nuptial contract within eight months after letters of administration, granted according to chap. 55, §§5-6, General Statutes.” This is erroneous, independent of any consideration that it is a point outside the issues made by the pleadings, because the sections of the General Statutes are modified by the'statute No. 66, acts of 1864, which provides that the probate court may, in their discretion, extend the time in which widows shall make their election, from time to time during the settlement of any estate, as the exigencies thereof may seem to require.

Under the practical and liberal interpretation which this statute has received-in the probate courts, and as we hold should receive, it is not necessary that the widow should petition for an extension of time within the eight months. It is in the power of the probate court to suffer a waiver of a jointure, or other provision by settlement or will, upon application made at any time before the settlement of the estate is closed. What steps have been taken in this direction in the probate court is left uncertain, except so far as they may be inferred from the fact that the defendant demurs to, and therefore, technically, admits the statement in the plaintiff's replication that, the probate court had jurisdiction and authority in the premises. Some of the facts detailed tend to show that the widow lias accepted the provision made for her in the ante-nuptial agreement, and other facts tend to show that whatever acceptance there has been was made under such circumstances as not to prejudice any right of waiver if such right ever existed.

We all think it very clear that this judgment is erroneous, and should be reversed, but we have had considerable difficulty in determining whether it is the duty of this court to render judgment the other way, or to remand the cause for a new trial. Usually when the facts are found and detailed by the court, if judgment is reversed, such a judgment is rendered in this court as the facts-require; but in this case,'in view of the uncertainty as to what steps were taken in the courts below, and as to what the actual state of'the facts is, in respect to some questions which the county court might have considered, and reported more fully if this recent statute had been called to their notice, we deem it best to remand the case for a new trial.

Judgment reversed and cause remanded.