Hardy v. Smith

• Decision Date: 05 January 1884
• Citation: 136 Mass. 328
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John Hardy v. Orissa J. Smith, executrix, & others. Winslow Warren & another, executors, v. John Hardy & another. Orissa J. Smith, executrix, v. John Hardy

136 Mass. 328

John Hardy v. Orissa J. Smith, executrix, & others.

Winslow Warren & another, executors, v. John Hardy & another.

Orissa J. Smith, executrix, v. John Hardy

Supreme Court of Massachusetts

January 5, 1884

Argued November 23, 1883

Decree affirmed.

C Houghton, for Hardy.

N. B Bryant, for the executrix.

No counsel appeared for the executors.

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

OPINION

W. Allen J.

These are appeals from a decree of the Probate Court upon the petition of John Hardy, praying to be allowed one half of the personal estate of Mary M. Hardy, also called Mary M. Perkins, deceased, as a legatee under her will, and one half as her husband, alleging that he did not consent in writing to the will. The other parties are the executrix of the will of Mary M. Hardy, and the executors of the will of Ezra G. Perkins, who died after the decease of said Mary M. The decree found that John Hardy was the lawful husband of the testatrix; that he was not a legatee under the will; that he did not consent in writing to the will, and was as husband entitled to one half of the personal property under the statute of distribution; and ordered that one half of the personal property should be paid to him. John Hardy appealed from so much of the decree as refused his petition for the bequest, and the other parties severally appealed from the other parts of the decree.

The material parts of the will are as follows: "The last will and testament of Mary M. Perkins, wife of Ezra G. Perkins, of Boston, Massachusetts." Then follow various devises of real estate, and small bequests of personal property. The sixth clause is, "I give and bequeath to my husband one half of all my personal property." By the seventh clause she gave all the residue of her personal property to her brother. The eighth clause was, "I authorize my husband to remain in possession of my house for three months after my death;" and the last clause, "I appoint my husband and my sister Orissa joint executors of this my last will and testament."

In no view can the petitioner be entitled to more than one half of the personal property of the testatrix. If he has the rights of her husband, she has exercised her statutory right to will one half of the personal property away from him. Whether he takes one half as legatee under the will, or as distributee under the statute, the will operates to deprive him of the other half. The language of the statute is explicit: "A married woman may make a will in the same manner and with the same effect as if she were sole, except that such will shall not, without the husband's written consent, operate to deprive him of his tenancy by the curtesy in her real estate or of more than one half of her personal estate." (Pub Sts. c. 147, § 6. Gen Sts. c. 108, §§ 9, 10.) This is perhaps a sufficient answer to John Hardy's appeal, which is only from the finding of the Probate Court that he was not entitled to take as legatee. If we should hold that that finding was wrong, and that he is entitled to take one half of the personal estate under the bequest, we could not change the decree, which is that one half of the personal property shall be paid to him. We think, however, that the finding was right. The evidence from the will itself, as well as the extraneous evidence, shows clearly that the testatrix did not intend to designate the petitioner as her husband when she used that word in her will. The objection made by the petitioner is not to the weight, but to the competency, of the evidence. It is contended that there is a conclusive presumption, which no evidence is competent to rebut, that by the word "husband," in her will, the testatrix meant her lawful husband. We think that it is a question of the intention of the testatrix, to be determined by evidence competent to show intention. The word is used to designate a particular person. The fact that a person is the lawful husband is strong, and of itself plenary proof that he was the person intended; but it is not conclusive, and may be...