O'Hara v. Donovan

• Citation: 303 Mass. 393,21 N.E.2d 984
• Parties: O'HARA v. DONOVAN et al.
• Decision Date: 29 June 1939
• Court: United States State Supreme Judicial Court of Massachusetts

303 Mass. 393

21 N.E.2d 984

O'HARA

v.DONOVAN et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 29, 1939.

Suit by Elizabeth F. O'Hara against John J. Donovan and others to have declared null and void a waiver of the will of Catherine Donovan, deceased, filed by the named defendant as the husband of deceased, in which he claimed the portion of the estate which he would have taken if she had died intestate. From a final decree dismissing the petition, petitioner appeals.

Decree affirmed.Appeal from Probate Court, Middlesex County; Leggat, Judge.

M. Caro, of Boston, for petitioner.

No argument of brief for respondent.

DOLAN, Justice.

This is a petition in equity by the sole legatee and devisee under the will of Catherine Donovan, late of Lexington, deceased, in which the petitioner seeks to have declared null and void a waiver of said will filed by the respondent husband of the deceased, in which he claimed ‘such portions of the estate of the deceased as he would have taken if * * * [she] had died intestate.’ See Porter v. Spring, 250 Mass. 83, 145 N.E. 52;Dolbeare v. Bowser, 254 Mass. 57, 149 N.E. 626; G.L.(Ter.Ed.) c. 215, § 6. The respondent's demurrer was sustained and the case comes before us upon the appeal of the petitioner from the final decree dismissing the petition.

The allegations of the petition may be summarized as follows: On September 23, 1929, the deceased and her husband entered into an agreement with one Evarts, as trustee, whereunder the husband covenanted and agreed with the said trustee to deliver to him a power of attorney ‘running to’ the deceased ‘to release his right of curtesy in and to a certain lot of land’ and the buildings thereon situated in Lexington, and to pay to the trustee the sum of $2,055.10, and whereunder the trustee covenanted with the husband and the deceased to deliver said power of attorney and turn over said money forthwith to the deceased. The deceased in turn covenanted with the trustee that she would not ‘in any event make any further claim * * * for support or maintenance.’ On the same day the husband executed a power of attorney to the deceased constituting her his ‘true and lawful attorney’ for him and in his stead to ‘release in connection with and in and on a deed, mortgage, and instrument of conveyance of the premises * * * [before referred to] which may at any time hereafter be given, made, or executed by my said wife, Catherine H. Donovan, all my rights of curtesy and homestead and all other interests [therein] * * *.’ The power of attorney was under seal and was expressed to be given for consideration and to be coupled with an interest on the part of the deceased ‘in the subject matter of the power * * * [thereby] conferred on her’ and to be irrevocable by her husband. It further conferred upon her as said attorney full power and authority in the husband's name and behalf ‘to sign, seal, acknowledge, and deliver any and all deeds and other instruments in writing relating to the premises' which she might ‘deem necessary or proper * * * as fully and effectually as * * * [he] might do if personally present.’

The deceased died and, under her will which has been duly proved and allowed, she provided that all the real and personal property of which she died seized and possessed should go to her sister, Elizabeth F. O'Hara. The will contains the following statement: ‘I expressly omit my husband from the provisions of this my last will because of our separation since September 23, 1929 under a written agreement.’ The will was executed on October 4, 1932. It is alleged in the petition that the waiver of the will, before referred to, was filed in the Probate Court on July 28, 1937.

The demurrer sets forth as grounds that the petition ‘does not state facts sufficient to constitute a cause of action: 1. Because the right to waive a will by a surviving husband is a statutory and an absolute right. (G.L. Chap. 191, Sec. 13) 2. The only exception to the above is provided in G.L. Chap. 209, Sec. 35. ‘If a court having jurisdiction has entered a decree that a married woman has been deserted by her husband or is living apart from him for justifiable cause * * * the surviving husband shall not be entitledunder section fifteen of chapter one hundred and ninety-one to waive the provisions of a will made by her or to claim such portion of her estate as he would take if she had died...