Barnard v. Fall River Savings Bank

135 Mass. 326, 1883 Mass. LEXIS 83

• Court: Massachusetts Supreme Judicial Court
• Decided: September 6, 1883
• Status: Published

Opinion

W. Allen, J.

It was provided by the Gen. Sts. c. 103, § 57, which was in force at the time of the decease of the husband of the demandant, that “ every widow shall be entitled to her dower in lands taken by execution from her husband, .... in like manner as if the same had been conveyed by her husband in his lifetime without release of dower by her; ” and by the St. of 1861, c. 164, § 1, after providing for the waiver by a widow of the provisions made for her in her husband’s will, that “.if she makes no such waiver she shall not be endowed of his lands, unless it plainly appears by the will to have been the intention of the testator that she should have such provisions in addition to her dower.”

We do not think that it plainly appears by a will which gives the whole of a husband’s estate to his wife, appoints her sole executrix, and provides that there shall be no appraisal of the estate, and that no bond shall be required, that it was his intention that such provisions should be in addition to her dower.

It is argued that the will shows an intention to give the utmost benefit to the wife, and that it will be for her benefit, and not to the detriment of the estate, for her to have the dower demanded. A sufficient answer is, that this does not appear by the will. The right sought to be established is not of dower in a particular parcel of land, but a right to be endowed of the husband’s lands, and would apply to lands conveyed by him with warranty, as well as to lands taken from him by execution. See Buffinton v. Fall River Bank, 113 Mass. 246. Exceptions overruled.