In re Harriet C. Peck's Estate

• Decision Date: 16 January 1908
• Parties: IN RE HARRIET C. PECK'S ESTATE
• Court: Vermont Supreme Court

68 A. 433

80 Vt. 469

IN RE HARRIET C. PECK'S ESTATE

Supreme Court of Vermont

January 16, 1908

October Term, 1907.

C S. Palmer for the petitioner.

Present ROWELL, C. J., TYLER, MUNSON, and WATSON, JJ.

OPINION

WATSON

Harriet C. Peck, a married woman, died December 25 1903, testate. Probate of her will was granted, and Gardner S. Wainwright and Sayles Nichols, the executors named in the will, duly qualified as such. By the will the surviving husband, Edward W. Peck, was given a life estate, subject to the payment of certain annuities. Within eight months after the will was proved Edward W. made application to the probate court for an extension of time in which to elect to waive its provisions, and on hearing, the petitioner in this case and other beneficiaries under the will being there represented by their attorney, and objecting thereto, the application was granted and the time extended to the first day of January, 1905. Within the time thus extended he notified the court in writing that he had elected to waive the provisions of the will, and that therefore he was entitled by law to take the sum of two thousand dollars and one-half of the remainder of the estate requesting that his interest in the estate be assigned and set over to him. Edward W. died June 26, 1906.

On January 23, 1907, William H. Clark filed with the probate court his petition in these proceedings, praying that a time be appointed for hearing and determining the rights of the petitioner and all others interested, and that the waiver of Edward W. be disallowed and dismissed. Some days later the petitioner also filed a motion to dismiss the waiver on the ground that the right was personal to Edward W., and that the waiver never having been determined by the court, or established as a legal right, ceased at his death. On notice to all parties interested, and after executors Nichols and Wainwright had filed their answer to the petition, the court on hearing found and adjudged that Edward W. by his acts exercised his election to take and did take of the estate under and by virtue of the terms and provisions of the will and adjudged the waiver inoperative and void, and that the estate should be administered and decreed according to the terms of the will. From this order and decree the executors appealed, and the record being filed in the county court the petitioner, pleading in abatement, prayed that the pretended waiver be disallowed and dismissed because of the death of Edward W. before any hearing, order, or decree was had thereon. To this plea and to the motion to dismiss the waiver, filed in the probate court, the executors demurred. The objection made in the probate court to the order extending the time in which to make election, was overruled pro forma, as was the motion to dismiss the waiver; the demurrers to the motion to dismiss and to the so-called plea in abatement were sustained and the plea adjudged insufficient. The questions raised by exceptions to these several rulings are before us for consideration.

Three substantive points are stated by the petitioner as presented by the record: (1) Had Edward W. the statutory right to the extension of time granted him in which to make his election? (2) On his death did the right of waiver survive? (3) Did he by his acts accept the provisions of the will and thereby estop himself from taking under the statute by force of his waiver? The first two of these questions arise on the exceptions stated above and will be considered in their order.

That Edward W. had the right to make such waiver, if seasonably exercised, there can be no question. Whether he was precluded from taking the benefits resulting therefrom is another thing, a question to be considered on exceptions stated later.

It is contended that the waiver was not seasonably made. Section 2543 of Vermont Statutes reads: "If a married woman dies, leaving no issue, but leaving a will, her husband may waive its provisions as a widow may waive the provisions of her husband's will." One definition of the word as is, "In the same manner with or in which." Webster's International Dictionary. In this sense it is used in that section, the law having the same meaning as though it read, her husband may waive its provisions in the same manner in which a widow may waive the provisions of her husband's will. The question then is, In what manner may a widow waive the provisions of the will of her husband? By V. S. 2419 when the widow waives the provisions made for her in the will of her husband, in case he dies without issue, she may take estate as is now provided in like cases of intestate estates. By Laws of 1896, No. 45, sec. 1, real and personal estate of a deceased person, not lawfully disposed of by will, and not otherwise appropriated and distributed in pursuance of law, shall descend: "If the deceased is a married person and leaves no issue the surviving husband or wife, as the case may be, * * *, if either waives the provisions of the will of the other, shall be entitled to the whole of the deceased's estate forever, if it does not exceed two thousand dollars. But if it exceeds that sum, then the survivor shall be entitled to two thousand dollars and one-half of the remainder. " And by Laws of 1896, No. 44, sec. 5, in amendment of V. S. 2532, "The widow may be barred of such one-third part of the lands of her husband in the following ways: * * * Second, where her husband by his last will and testament made provision for such widow, which, in the judgment of the probate court, was intended to be in lieu of said one-third or her dower interest in said estate. * * * But the widow may, within eight months after the will of her husband is proved, or after letters of administration are granted on his estate, or in such further time as the court in its discretion allows, waive * * * the provisions made for her by the will of her husband, * * * and notify the court of her election in writing; and the court shall thereupon order said one-third set out as in other cases."

Notwithstanding the section last quoted did not contain all the statutory provisions touching the widow's right to waive her husband's will, it contained the only provisions prescribing the mode or manner of exercising that right; and in this respect it was by the law, giving the husband the right of waiver,--V. S. 2543, recited above,--made applicable to him as well. We hold therefore that the right of waiver in question was exercised in the manner provided by law; that it was within the discretionary power of the probate court to allow further time to the surviving husband in which to make his election; and since it was made within the extension of time granted, it was seasonably done. Hathaway v. Hathaway, 44 Vt. 658.

It is urged, however, that under the law by which a husband takes two thousand dollars and one-half of the remainder of his wife's estate in case she dies intestate and without issue, he takes by descent as heir; and that when she dies testate if he would waive the will and take of her estate in the same way, he must file his waiver, and appeal from the decree establishing the will within the time allowed therefor, otherwise he, as all others, is bound by the decree, and the will operates absolutely on all the property of the estate. This argument is based on what is claimed to be the force of the common law: that when the will of a femme covert is offered for probate the surviving husband is put to his election; that he must protest against its probate or he is bound by its provisions. And it is contended that this is the waiver contemplated by No. 45 of the Laws of 1896. But an examination of the law touching the subject shows the fallacy of this position.

At common law a married woman was utterly incapable of devising lands,-- In re Polly Carey's Estate, 49 Vt. 236,--and since this incapacity did not arise from any interest of the husband in her property, it could not be cured by his renunciation of interest. Dye v. Dye, 13 QB 147. Also with some exceptions not material here, she lacked ability to make a valid testamentary disposition of chattels without the assent of her husband. But this disability arose by virtue of the husband's marital rights, and her testament could have force only because assented to by him, and to be operative the consent must be to the particular will and continue to the probate. The question was not whether he protested against the will, but whether he consented to it; and the probate was conclusive not only as to its proper execution, but as to the husband's assent also, where such assent was necessary to give the will effect. Yet then it amounted to a gift from the husband, and his interest in the property thereby passed according to the will, but not merely by force of it, nor because his consent added anything to her testamentary ability. In re Polly Carey's Estate, 49 Vt. 236; Morton v. Onion, 45 Vt. 145; Fisher v. Kimball, 17 Vt. 323; Cutler v. Butler, 5 Fost. 343; Hodsden v. Lloyd, 2 Brown Ch. 534; Ex Parte Fane, 16 Sim. 416, 39 Eng. Ch. 406, Am. Ed.; 1 Williams Exrs. 7th Am. Ed. 46; George v. Bussing, 15 B. Mon. 558.

At the time of the execution of the will in question, every married woman, the same as all other persons of age and sound mind had the power by statute to dispose of her real and personal estate by will. V. S. 2346. Whatever may be said concerning the conclusive effect at common law of the probate of the testament of a married woman as a waiver of the husband's marital rights in her personal estate, the doctrine has no force here, by analogy or otherwise. For since the wife's testamentary power under the statute does not in any degree arise from the assent of the husband, neither the validity of her will, nor...