Cochran v. Thorndike

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Devens, J.
• Citation: Cochran v. Thorndike, 133 Mass. 46 (Mass. 1882)
• Decision Date: 15 May 1882
• Parties: Sarah W. Cochran v. Samuel L. Thorndike & others, trustees

133 Mass. 46

Sarah W. Cochran v. Samuel L. Thorndike & others, trustees

Supreme Court of Massachusetts

May 15, 1882

Suffolk. Petition to the Probate Court by the widow of Samuel Q. Cochran, who died testate on March 21, 1881, leaving no issue living, alleging that, having waived the provisions of her husband's will, she was, under the St. of 1880, c 211, entitled in fee to real estate of her husband to the amount of $ 5000, and praying that it might be assigned and set off to her by metes and bounds. The judge of probate appointed commissioners to set off to the petitioner real estate of her husband in accordance with the prayer of the petition; and the respondents appealed to this court.

Hearing before Endicott, J., who ordered a decree to be entered reversing the decree of the Probate Court. The petitioner appealed to the full court.

Decree of Probate Court affirmed.

H. G Parker, for the petitioner.

F Dabney, for the respondents.

Devens, J. Endicott & Field, JJ., absent.

OPINION

Devens, J.

The petitioner, whose husband has died leaving no issue, has waived the provisions of the will in her favor under the St. of 1861, c. 164, and now claims real estate in fee to the value of $ 5000 by virtue of the St. of 1880, c. 211. The question presented is whether she is entitled to any greater portion of her husband's estate than she would be entitled to under the statutes, regulating the descent and distribution of intestate estates, which existed and were in force at the time the St. of 1861 was enacted.

Before the St. of 1861, c. 164, it had long been the law of this Commonwealth that a widow might waive the provisions of her husband's will in her favor, and thus entitle herself to such portion of the estate real or personal as she would have received if her husband had died intestate. Sts. 1783, c. 24, § 8; 1833, c. 40; 1854, c. 428. Gen. Sts. c. 92, § 24. At the time of its passage, the widow, there being no issue, was entitled to a life interest in one half the real estate, and one half the personal property absolutely. Gen. Sts. c. 90, § 15; c. 94, § 16.

The St. of 1861, c. 164, entitled the widow, on waiver of the will, to "such portion of his real and personal estate as she would have been entitled to if her husband had died intestate;" but it provided that she should only receive ten thousand dollars absolutely, with a life interest only in the excess. Its effect was, therefore, in those cases where the half of the personal property amounted to more than ten thousand dollars, to give to the widow less where she waived the provisions of a will than she would have received had her husband actually died intestate.

It is upon this that the respondents found their argument that inasmuch as a distinction is made in the St. of 1861 between the right of the widow in cases of actual intestacy and her rights where she has waived the...