Old Colony Trust Co. v. Coffman

• Decision Date: 03 March 1961
• Citation: 172 N.E.2d 609,342 Mass. 153
• Parties: OLD COLONY TRUST COMPANY, administrator, v. Ralph J. COFFMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 609

172 N.E.2d 609

342 Mass. 153

OLD COLONY TRUST COMPANY, administrator, v. Ralph J. COFFMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1960.

Decided March 3, 1961.

M. James Zelman, Boston, for petitioner.

Paul B. Sargent, Boston, for respondent.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE and CUTTER, JJ.

WILLIAMS, Justice.

This is a petition originally brought by the conservator of the property of Charles C. Saben, late of Winthrop, for the approval by the Probate Court of his waiver in behalf of his ward of the provisions of the will of Anna H. Saben, the ward's deceased wife. Mrs. Saben died on August 26, 1956. Her will was allowed by decree of the Probate Court on December 3, 1956, which decree on appeal to this court was affirmed February 5, 1958. See Coffman v. Saben, 336 Mass. 696, 147 N.E.2d 759. Mr. Crehan, the original petitioner, had been appointed conservator on October 18, 1956. The will of Mrs. Saben contained no provision for her husband and on December 26, 1956, the conservator filed a waiver of her will and a petition under G.L. c. 201, § 45, that the waiver be approved. His ward died on January 8, 1958, before the rescript of this court on the contested allowance of Mrs. Saben's will. The conservator's waiver of the will was approved by decree of the Probate Court on November 16, 1959, and is before us on the appeal of Ralph J. Coffman, as executor of the estate of Anna H. Saben and individually as legatee under her will. By order of the Probate Court Old Colony Trust Company, administrator with the will annexed of Charles C. Saben, was on November 16, 1959, substituted as petitioner for Mr. Crehan.

It is not contended by the appellant that the waiver by the conservator was not for the advantage and benefit of the ward or was not filed in good faith. See Minnehan v. Minnehan, 336 Mass. 668, 671, 147 N.E.2d 533. He concedes that the petition could be allowed if the ward were alive and that the sole question is whether the court had jurisdiction to approve it after his death.

A conservator has the same powers and duties, except as to the custody of the person, as a guardian of an insane person. G.L. c. 201, § 20. Such guardian could, in the circumstances here described, have waived the provisions of the will provided that the waiver was approved by the Probate Court. G.L. c. 201, § 45. The right of waiver is personal to the surviving spouse, Sherman v. Newton, 6 Gray, 307; Jones v. Maguire, 221 Mass. 315, 108 N.E. 1073; Friedman v. Andrews, 293 Mass. 566, 569, 200 N.E. 575, and if exercised under the statute by a guardian or conservator requires the approval of the Probate Court. The reason for such requirement is to determine whether the waiver is for the benefit of the ward alone and for his best interests. Hanchett v. Hill, 316 Mass. 673, 676, 56 N.E.2d 590. While the waiver must be filed within six months after the probate of the will of which the provisions are waived (G.L. c. 191, § 15), the approval of the court need not be given within that period. Essex Trust Co. v. Averill, 321 Mass. 68, 70-71, 71 N.E.2d 767; Miller v. Miller, 339...