Pinkerton v. Sargent

102 Mass. 568

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1869
• Status: Published

Opinion

Colt, J.

The power of testamentary disposition, which is given to all persons of sound mind and full age, is controlled, to a limited extent, by the privilege which the testator’s widow has of waiving the provisions of the will in her behalf and taking instead her distributive share of his estate. Gen. Sts. c. 92, § 24„ St. 1861, c. 164.

This privilege of waiver is a purely personal right, and its exercise rests in her personal discretion alone. It is not a question of mere pecuniary advantage. The widow’s knowledge of the family arrangement, the wishes of her husband, equitable considerations known and appreciated only by her, may all have weight and influence in determining her election. It is a privilege which cannot he regarded as a portion of her estate.

There is nothing in the statutes which discloses any purpose to impair the right to dispose of property by will, any further than the exercise of the right by the widow in her sane mind may do it. It is not to be inferred, without express provision, that when, through loss of reason, the waiver can no longer be intelligently made by the widow, a stranger, who may be appointed guardian, may do it in her name, or in his own name as guardian.

It has been already decided that, where the widow died a few days after the decease of her husband, and before the probate of the will, her administrator and the children by her former husband could not exercise the right of waiver, which it was said was personal to her, and could not pass to her representatives. Sherman v. Newton, 6 Gray, 307. And it has been more recently held that the waiver was sufficient, if made by a widow who died before the probate of the will. Atherton v. Corliss, 101 Mass. 40.

It is not necessary to decide whether a waiver in form, made by an insane person, is such an act as can be made effectual by a subsequent ratification after sanity is restored. If so, it would seem that the ratification must occur before the lapse of the time limited by the statute. It cannot be made valid by the subsequent act or approval of the guardian alone. This would be practically to confer the right upon the guardian. The case cited of Brown v. Hodgdon, 31 Maine, 65, seems to hold that, if an insane widow waives the provisions of the will, and at no lucid interval evinces a disposition to avoid the waiver, which is confirmed by her guardian, it cannot be objected that it is inoperative. The waiver in that case was made before the appointment of a guardian; and the case assumes that there was a ratification of the act by the widow during lucid intervals. Here it is agreed that Mrs. Sargent had been for many years before and was at the time when the several waivers were made an inmate of an insane asylum, under guardianship as an insane person, and so continued until her death. Allis v. Billings, 6 Met. 415. Decree reversed.