Bennett v. Brown

222 Mass. 283

• Court: Massachusetts Supreme Judicial Court
• Decided: November 24, 1915
• Status: Published

Opinion

Carroll, J.

William A. Bennett died December 7, 1911. By his will dated October 29, 1902, he bequeathed to each one of his three children the sum of $5.* The remainder of his estate he devised and bequeathed to his wife Melinda J. Bennett, who died May 14, 1911. The will was duly admitted to probate on January 5, 1912. This petition seeks to vacate the decree of the Probate Court allowing the will, because the will “had been revoked by implication of law resulting from changes in the condition and circumstances of the said William A. Bennett which occurred subsequently to the execution of said instrument.”

H. E. Fales, for the petitioner. H. E. Tiepke, (A. Fuller with him,) for the respondents.

The fact that Mrs. Bennett died before her husband is relied on to show a change of circumstances sufficient to revoke the will. R. L. c. 135, § 8, provides tho,t a will can be revoked “by subsequent changes in the condition or circumstances of the testator from which a revocation is implied by law.” Warner v. Beach, 4 Gray, 162, is directly in point. It decides that the death of the wife during the lifetime of the testator is not such a change in condition or circumstances as to revoke a will by implication of law.

Decree,

* affirming the decree of the Probate Court dismissing the petition, affirmed.

* Made by Pierce, J.

The whole estate after the payment of debts was about $17,000. The testator during his lifetime had advanced $2,500 to Melinda L. Brown, who was one of his three children. If the will was vacated this amount would be deducted from the share of that child and the shares of the other children would be increased.