Friedman v. Andrews

• Decision Date: 05 March 1936
• Citation: 293 Mass. 566,200 N.E. 575
• Parties: FRIEDMAN v. ANDREWS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 566

200 N.E. 575

FRIEDMAN

v.ANDREWS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1936.

Lee M. Friedman, administrator with the will annexed of the estate of Irving Solby, late of Boston, filed a petition for instructions. From the decree, Julius Andrews, administrator of the estate of Wilhelmina Solby, appeals.

Affirmed.

Appeal from Probate Court, Suffolk County; Dolan, Judge.

L. M. Friedman, of Boston, for Friedman.

C. W. Spencer, of Boston, for Julius Andrews.

J. M. Maloney, of Boston, for respondents Rose Sobotky and others.

FIELD, Justice.

The question for decision is whether, on the agreed facts in this case, Wilhelmina Solby, surviving wife of Irving Solby, late of Boston, waived the provisions of his will.

G.L.(Ter.Ed.) c. 191, § 15, provides that ‘the surviving * * * wife of a deceased person * * * within six months after the probate of the will of such deceased, may file in the registry of probate a writing signed * * * by her, waiving any provisions that may have been made in it * * * for her, or claiming such portion of the estate of the deceased as * * * she would have taken if the deceased had died intestate, and * * * she shall thereupon take the same portion of the property of the deceased, real and personal, that * * * she would have taken if the deceased had died intestate,’ with certain exceptions which need not be stated.

Irving Solby, of Boston, died March 26, 1934, leaving a will which was filed in the registry of probate on March 30, 1934. On July 3, 1934, a petition for probate of the will was filed by Wilhelmina Solby, surviving wife of the deceased. On the same day she signed a writing waiving the provisions of the will, and delivered such waiver to her counsel with the petition for probate. From the time of such delivery she had no communications with counsel. Wilhelmina Solby died December 4, 1934. On December 5, 1934, counsel to whom she had delivered the waiver filed it in the registry of probate. A decree was entered on December 31, 1934, allowing the will and appointing an administrator with the will annexed.

The probate court entered a decree that the purported waiver is of no force and effect and instructed the administrator with the will annexed to administer the estate strictly in accordance with the terms of the will. The administrator of the estate of Wilhelmina Solby appealed.

The decree was right.

The language of the governing statute naturally interpreted indicates that filing a signed writing is an essential part of a waiver-that the waiver becomes effective only upon such filing. The surviving wife ‘may file in the registry of probate’ a ‘writing signed * * * by her’ and she shall ‘thereupon’-that is upon such filing-‘take the same portion of the property of the deceased’ that she would have taken if he had died intestate. Beforethe General Statutes a surviving wife might, under Rev.Sts. c. 60, § 11 (see, also, St.1783, c. 24, § 8), ‘make her election’ whether she would take the provisions for her under the will of her deceased husband or her common law dower, or, under a later statute (St.1854, c. 428), ‘waive’ such provisions and take, with some limitation, the portion of her husband's property which she would have taken if he had died intestate. She was required to make her election (or waive) within six months after the probate of the will, though no method of election or waiver was prescribed by the statutes. But it was said in Reed v. Dickerman, 12 Pick. 146, 150-a case arising under St. 1783, c. 24, § 8-that ‘there is some positive act to be done by the widow, indicating her election.’ Gen.Sts. c. 92, § 24, however, prescribed the method to be followed in waiving the provisions of a will in substantially the terms now incorporated in G.L.(Ter.Ed.) c. 191, § 15. See Atherton v. Corliss, 101 Mass. 40;Shelton v. Sears, 187 Mass. 455, 73 N.E. 666. It seems clear that the method prescribed by statute is exclusive (compare Georgetown National Bank v. Ford, 215 Ky. 472, 285 S.W. 218, 82 A.L.R. 1495) and that filing a signed writing in the registry is the only positive act which can effectively manifest the intention of a surviving wife to waive the provisions of the will of her deceased husband. It would be reading something into the statute to substitute, for the statutory filing in the registry, delivery of the signed writing to counsel.

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