Borden v. Jenks

• Decision Date: 11 January 1886
• Citation: 140 Mass. 562,5 N.E. 623
• Parties: BORDEN, Adm'r, v. JENKS and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

140 Mass. 562

5 N.E. 623

BORDEN, Adm'r,

v.JENKS and others.

Supreme Judicial Court of Massachusetts.

Filed January 11, 1886.

Bill in equity, by the administrator with the will annexed of the estate of Charles Jenks, alleging that the testator died on the seventeenth of February, 1882, leaving a will dated October 25, 1876, which was duly admitted to probate; that on May 5, 1882, letters testamentary issued to the plaintiff,-George A. Jenks, who was named in the will as executor, having declined the appointment; that the will contained the following provisions:

“First. I give and bequeath unto my wife, Amy Jenks, my new dwelling-house, and the garden lot belonging to the same, for and during her life; also her necessary fire wood, and the keeping of one cow, to be furnished to her from my homestead farm, by my executor hereinafter named. I also give to my said wife, absolutely, all my household furniture and in-door movables, and the sum of two thousand dollars. Second. I give and bequeath unto my son George A. Jenks my homestead farm, and also my new dwelling-house and garden lot, after the decease of my said wife, to him and his heirs, forever. I also give to the said George all my farming tools, live-stock, carriages, wagons, carts, harnesses, and the sum of three thousand dollars in money.”

The bill further alleged that the will also gave legacies to the other children and a grandchild of the testator, and the residue of his estate to his four children equally; that the widow accepted the provisions of the will in lieu of dower and other interests in the estate to which she would have been entitled if the testator had died intestate; that the estate is not sufficient to pay the debts and all the legacies in full, but is more than sufficient to pay the debts and the legacy to the wife in full; that the widow claims that the legacy given to her by the will must be paid by the plaintiff out of the estate, without regard to the other legacies given by the will; that George A. Jenks claims that, inasmuch as the estate is not sufficient to pay all the legacies in full, Amy Jenks was not entitled to the full amount of the legacy given to her, and objects to the plaintiff paying her said legacy, and avers that such payment, if made, would impair the amount of his and the defendants' legacies. The plaintiff asked that the several defendants might be ordered to interplead, and state their several claims upon the plaintiff in the execution of his trust, so that the court might instruct the plaintiff whether the claim of the widow, to the full amount of her legacy, should be allowed and paid her by the plaintiff out of the estate, or what proportion should be paid to her under the will; and for other relief. Hearing before FIELD, J., who found that the land devised and the personal chattels bequeathed to George A. Jenks by the will were not liable to abate or be taken for the payment of the pecuniary legacy of $2,000 given to the widow by the will; and from the decree Amy Jenks appealed.E.H. Bennett, for Amy Jenks.

T.M. Stetson, for George A. Jenks.

DEVENS, J.

The provision made for the widow by the testator is not in terms declared to be in lieu of dower; but by the statute of Massachusetts, when provision is made for a widow by the will of a deceased husband, she is not entitled to dower, unless it plainly appears thereby that such was the intention. Under Pub.St. c. 127, §§ 18, 20, her failure to waive the provisions of the will operated as an acceptance of them, and placed her in the same position as if such provisions had been expressly declared to be in lieu of dower. Towle v. Swasey, 106 Mass. 100. The widow is a purchaser for value, in accepting the provisions of the will, and is not treated as a gratuitous object of the testator's bounty. By a relinquishment of her dower, the estate acquires a valuable right of property. Whether the provisions be more or less, so far as the testator, the widow, and all pure beneficiaries under the will are concerned, it is the right of the testator to affix what consideration he pleases for the relinquishment of dower, and for the widow to accept or reject it. Whether, as against creditors, a provision in lieu of dower far exceeding its value could be held good need not now be discussed. The right of the widow to a priority in the payment of the legacy which she takes in consideration of relinquishment of dower is so well established that it hardly requires the citation of authorities. Burridge v. Bradyl, 1 P.Wms. 127; Blower v. Morret, 2 Ves.Sr. 420; Norcott v. Gordon, 14 Sim. 258; Williamson v. Williamson, 6 Paige, 298, 304;Pollard v. Pollard, 1 Allen, 490; Towle v. Swasey, ubi supra; Farnum v. Bascom, 122 Mass. 282, 289. It seems to be equally established that where a widow has no dower interest, as where she is provided for by a jointure or other settlement in lieu thereof, she obtains no precedence, but shares equally with other pecuniary legatees. Roper v. Roper, 3 Ch.Div. 714; Acey v. Simpson, 5 Beav. 35. It would follow from these principles that where a wife is entitled, as she is under the laws of Massachusetts, to a share in the personal property of the husband, of which she cannot be deprived by will, the relinquishment of such right would entitle her to receive the legacy given in consideration thereof, in preference to those who were pure beneficiaries. Farnum v. Bascom, 122 Mass. 289. The position which she occupies in regard to such a legacy may be different, so far as creditors are concerned, as her right is independent of theirs in the one case and subject thereto in the other.

It is not disputed, in ...