Dolbeare v. Bowser

• Decision Date: 01 December 1925
• Citation: 149 N.E. 626,254 Mass. 57
• Parties: DOLBEARE v. BOWSER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 57

149 N.E. 626

DOLBEARE

v.BOWSER.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 1, 1925.

Appeal from Probate Court, Middlesex County; John C. Leggat, Judge.

Petition by Harris M. Dolbeare, executor of the will of Rebecca E. Parker, deceased, against Eden K. Bowser, administrator of the estate of Moses P. Parker, to have declared null and void waivers of provisions of the will filed by Samuel T. Parker, as guardian of Moses P. Parker and to enjoin defendant from prosecuting demand against the estate. From an order sustaining the demurrer and dismissing the petition petitioner appeals. Reversed and decree entered overruling demurrer.

T. Eaton, of Boston, for appellant.

G. M. Poland, of Boston, for appellee.

SANDERSON, J.

This is a petition filed in the probate court, by the executor of the will of Rebecca E. Parker, to have declared null and void the waivers of the provisions of her will, filed by Samuel T. Parker as guardian of her husband, Moses P. Parker, an insane person; and to enjoin the defendant, administrator with the will annexed of Moses P. Parker from prosecuting his demand for $10,000 and interest, alleged to be due under said waiver, and for instructions to distribute the balance of the estate in his hands, as executor, as though no waiver had been filed. It appeared that two waivers were filed, one in the name of Samuel T. Parker, guardian, and the other in the name of Moses P. Parker by Samuel T. Parker, guardian, On March 26, 1925, the date when the demurrer was sustained, the following entry appears to have been made on one of these waivers: ‘Motion allowed. John C. Leggat, Judge of Probate Court.’

Rebecca E. Parker died January 31, 1923, testate, leaving no children. Her estate in the petitioner's hands after paying debts is about $18,000. The provision for her husband in her will would give him the use and income of all her property for life; and in case that should not be sufficient, he would have the right, after his own property was exhausted, to use as much of the principal as might be necessary for his comfort and pleasure.

Samuel T. Parker, a brother of Moses P. Parker, was appointed guardian March 19, 1923, upon a petition dated January 1 of that year, and on March 29, 1923, he filed in the probate court the waivers hereinbefore referred to. When this appointment was made, Moses P. Parker was in such a condition both mentally and physically that his death was expected within a short time, and the guardian knew, or was informed by the attending physician, that there was no chance that the ward could live more than a few weeks. He died May 8, 1923, leaving a will in which Ruth M. Wells and Marguerite S. Carlisle are residuary legatees, and his estate is sufficient to pay all debts, charges and legacies, and leave a substantial balance for the residuary legatees. During the period between the date of the death of Mrs. Parker and that of her husband, his heirs presumptive were his brother, who was appointed guardian, his sister, and a niece (Marguerite S. Carlisle), who is one of the residuary legatees.

It is alleged that if the waivers are effective the defendant as administrator is entitled to $10,000 together with interest on one half the balance of the estate from January 31, 1923, to May 8, 1923, and that he has made demand for the payment of $10,000 and interest thereon due the estate of Moses P. Parker under the waiver.

[1] The grounds for relief alleged in the petition are that the guardian in filing the waivers was not acting in good faith or in the exercise of his discretion as guardian, or for the benefit of the ward, but was acting fraudulently for the purpose of increasing the estate of his ward in which he expected to share as heir at law or in which his daughter expected to share as one of the residuary legatees; and that the guardian gave no consideration to the interests of his ward or to the action which his ward would have taken in respect to his wife's will had he been in his right mind, but considered wholly the interests and benefits of whose who would be entitled to share in the estate of Moses P. Parker after his death. The demurrer admits the truth of these allegations. The grounds for sustaining the demurrer argued by the respondent are: (1) Want of equity; (2) that the facts alleged do not show fraud by the guardian; and (3) that if such a contention as the petitioner makes is open, the same matter may be pleased in the probate court in defense to a petition by the administrator to obtain his distributive share, and that such defense is an adequate remedy.

[2] The right given to the surviving spouse to waive the provisions for his or her benefit in a will is a personal privilege, and not a property right which passes to personal representatives or next of kin. The motives by which a surviving husband or wife might be influenced are not likely to be the same as those which would be controlling with the heirs of such survivor. Sherman v. Newton, 6 Gray, 307;Jones v. Maguire, 221 Mass. 315, 108 N. E. 1073. It was held in Pinkerton v. Sargent, 102 Mass. 568, that if the widow was insane neither she nor her guardian could waive the provisions of her husband's will. Soon after this decision the statute authorizing a guardian to waive the provisions of a will for his ward was enacted. St. 1871, c. 97, now G. L. c. 201, § 45. It was not until 1924 that the statute was so amended that no waiver of a will by a guardian is valid until approved by the probate court, after notice to such persons, if any, as the court shall deem proper, and a hearing thereon. St. 1924, c. 8. It is not contended that ...