Elliot v. Elliot

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Colburn, J.
• Citation: Elliot v. Elliot, 137 Mass. 116 (Mass. 1884)
• Decision Date: 08 April 1884
• Parties: Mehitable Elliot v. Eliza A. Elliot & others. Same v. Same

137 Mass. 116

Mehitable Elliot v. Eliza A. Elliot & others. Same v. Same

Supreme Court of Massachusetts

April 8, 1884

Essex.

Judgment in each case affirmed.

S. B Ives & G. B. Ives, for the respondents.

H Wardwell, for the petitioner.

Colburn J. W. Allen & Holmes, JJ., absent.

OPINION

Colburn, J.

The husband of the petitioner died on January 17, 1881, testate, but leaving no issue living; and she duly waived the provisions made for her in the will, and claimed such portion of the estate as she would have been entitled to if her husband had died intestate. The respondents are the heirs at law of the testator. The testator left unincumbered real estate, appraised in the inventory at $ 20,550, and personal estate exceeding by more than $ 10,000 all his indebtedness.

The petitioner brought her first petition in the Probate Court, asking that real estate of the deceased, to the amount of $ 5000, might be assigned to her in fee; and her second petition, praying that an estate in lieu of dower, namely, one half for life of such lands as are not assigned to her in fee, might be assigned to her.

It appeared to the Probate Court that, by adverse claims on the part of the heirs, the shares of the petitioner were in dispute, and he thereupon ordered both petitions to be removed to the Superior Court; and they were removed accordingly. Pub. Sts. c. 178, § 46.

The Superior Court granted the prayers of both petitions, and appointed commissioners, who set off and assigned to the petitioner the lands as prayed for, and their reports to that court were accepted, and judgments ordered thereon; and in both cases the respondents appealed to this court.

The St. of 1861, c. 164, provides that a widow may waive the provisions made for her in her husband's will, and that she shall, in such case, be entitled to such portion of his real and personal estate (with certain limitations as to personal estate) as she would have been entitled to if he had died intestate.

The petitioner's rights under this statute are to be determined by the law regulating the descent and distribution of intestate estates, as they existed at the time of her husband's decease; and she is entitled to the benefit of the provision of the St. of 1880, c. 211. Cochran v. Thorndike, 133 Mass. 46.

The Gen. Sts. c. 90, § 15, provide that, "when a man diesseised of lands, tenements, or hereditaments, or of any right or interest therein in fee simple, not having lawfully devised the same, and leaving a widow, but no issue, the widow in lieu of dower shall be entitled to one half of said estate during her natural life."

The St. of 1880, c. 211, § 1, provides that, "whenever any person shall die intestate, without leaving issue living, and shall leave a husband or wife surviving, such husband or wife shall take in fee the real estate of such deceased to an amount not exceeding five thousand dollars in value."

The respondents contend that these two provisions for a widow are not cumulative; that she cannot take advantage of the St. of 1880 without waiving the benefit of the provision of the General Statutes, or take her estate in lieu of dower without waiving the provisions of the St. of 1880. We see no ground for this contention. No right of election is given in the statute, in terms or by implication. The St. of 1880 must be regarded as conferring an estate in addition to the estate in lieu of dower, or as a substitute for that estate.

There is no inconsistency in the two provisions; and we are of opinion that it was the intention of the St. of 1880 to confer upon a widow a right in addition to that she had before. This, we think, is the natural...