Dexter v. Codman

• Decision Date: 05 January 1889
• Citation: 19 N.E. 517,148 Mass. 421
• Parties: DEXTER et al. v. CODMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 421

19 N.E. 517

DEXTER et al. v. CODMAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 5, 1889

January 5, 1889

HEADNOTES

COUNSEL

George O. Shattuck and Lewis S. Dabney, for proponent.

R.M Morse, Jr., J.H.P. Dodge, and Morton & Hamlin, for contestants.

OPINION

KNOWLTON J.

Under our law a widow has a direct pecuniary interest in the estate of her deceased husband, and a decree allowing his last will and testament affects that interest. Unless she takes action it divests her of the share of his property which the law gives her, and it leaves her with only such provision for her wants as the will makes for her. She can take measures to prevent that result by filing in the probate court, within six months, her waiver in writing of the provisions made for her in the will. Pub.St. c. 127, § 18. But the decree puts upon her the burden of doing this; and even then she does not get the same interest in the estate which she would have had if the will had been disallowed, for she only takes the income during her life of any sum exceeding $10,000 of personal property to which she would be entitled if her husband had died intestate, and she only gets that by doing a public act in apparent opposition to the deliberately expressed will of her husband, when perhaps she knows that the so-called will is a forgery, or is, for other reasons, at variance with her husband's wishes. We think, if she believes the will to have been improperly allowed, she must be deemed to be a person aggrieved by the decree of the probate court, within the meaning of Pub.St. c. 156, § 6. Lawless v. Reagan, 128 Mass. 592; Pierce v. Gould, 143 Mass. 234, 9 N.E. 568.

The court is not called upon to inquire whether, upon the settlement of the estate, it will be found that the will gives her more than she would take if there were no will, or more than another will of an earlier date, which, perhaps all parties agree must be allowed if this is set aside. It is sufficient that the decree of the court deprives her of property to which she is entitled, even though the law permits her to get an equivalent, or a greater amount, to which, if the facts were shown, she would have no title. She may well say that she wants what belongs to her under the law as applied to the facts, and that she wants nothing, the title to which is founded upon a falsehood. We are of opinion that the motion to dismiss the appeal was rightly overruled; but we do not intimate that if the widow had not been entitled to appeal, her joining with her daughter in the appeal would have required that it should be dismissed. What questions might have been raised as to her continuing in the case as a party, it is unnecessary to consider. The decision in McMasters v. Blair, 29 Pa.St. 298, that a widow cannot appeal from a judgment allowing her husband's will, rests upon local statutes. Moreover, there were other reasons for the disposition made of the case, which chiefly...