Burroughs v. Nutting

105 Mass. 228

Opinion

Wells, J.

The will takes effect from the date of the death of the testatrix. At that time the Gen. Sts. c. 108, § 9, were in force. Under that statute, the assent of the husband is not required to give validity to the will, but only to make it effective to deprive him of more than one half of the personal estate of the wife.

The devise to the heir is inoperative, because it purports to give him precisely the same interest that he would take as heir, if he had been intentionally omitted from the will. All the devises and bequests in the will, therefore, are to the husband, and for his benefit solely. The St. of 1850, c. 200, in express terms, makes such a will valid, although previously executed, if the testatrix was then living.

Upon appeal, this court must proceed to affirm the decree appealed from, or pass such decree as the probate court ought to have passed. The case is not to be sent back for . a new trial in the probate court, but must be tried in this court before a decree can be entered either affirming or reversing the decree in the probate court. Ordered accordingly.