Mcgrath v. Quinn

• Decision Date: 22 May 1914
• Citation: 105 N.E. 555,218 Mass. 27
• Parties: McGRATH v. QUINN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

218 Mass. 27

105 N.E. 555

McGRATH v. QUINN.

Supreme Judicial Court of Massachusetts, Middlesex.

May 22, 1914

COUNSEL

William H. Bent, of Lowell, for appellant.

Qua Howard & Rogers and Stanley E. Qua, all of Lowell, for appellee.

OPINION

BRALEY J.

The testatrix died without issue, and her husband, the petitioner, to whom she devised and bequeathed onethird of her real and personal property, appeared by counsel and objected to the allowance of the will when offered for probate. By the provisions of the will the respondent, the executor, was exempted from giving a surety on his official bond. R. L. c. 149, § 3. But at some stage of the proceedings counsel for the husband duly filed a writing stating that 'in his behalf we withdraw all objection to proof of the instrument presented * * * and consent that said instrument may be allowed as the last will' of the testatrix, upon condition that the executor furnish a bond in a certain sum with a surety company as surety. The bond having been furnished, and approved, and the will thereupon having been admitted to probate, the petitioner within one year thereafter availed himself of the right given by R. L. c 135, § 16, by filing in the registry of probate his written waiver of the provisions made for him, and claiming such portion of her estate as he would have taken if she had died intestate. This election ordinarily would entitle him to his distributive share as provided in R. L. c. 140, § 3, cl. 3. Atherton v. Corliss, 101 Mass. 40, 47. He could not claim under the will on one hand, and on the other hand demand his rights as if he were a statutory heir. Shelton v. Sears, 187 Mass. 455, 457, 73 N.E. 666.

It is however, contended by the respondent that the withdrawal of further opposition to the probate of the will, coupled with the condition that the executor should give bond with surety constituted an assent to the testamentary disposition of her property, which deprives him as the surviving husband of the right of waiver. The allowance of a will propounded for probate with the consent of the surviving spouse, who has appeared as the sole contestant, and the right to waive its provisions for his or her benefit, are distinct. Bunnell v. Hixon, 205 Mass. 468, 91 N.E. 1022. If the petitioner had indorsed on the will his assent to its terms, he would not thereby have relinquished his right to take his distributive share as if his wife had died intestate. Bunnell v. Hixon, 205 Mass. 468, 91 N.E. 1022. A waiver moreover is the intentional relinquishment of a known right. Metropolitan Coal Co. v. Boutell Transportation 3 Towing Co., 185 Mass. 391, 397, 70 N.E. 421. And the question is one of fact. Taylor v. Cole, 111 Mass. 363.

If we recur to the wording of the paper of...