Smith v. Wells

• Decision Date: 03 January 1883
• Parties: Elishabetha Smith v. Elisha Wells, administrator
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 11

Elishabetha Smith v. Elisha Wells, administrator

Supreme Court of Massachusetts

January 3, 1883

Argued September 19, 1882

Franklin. Appeal from a decree of the Probate Court, granting to Elisha Wells, the administrator de bonis non, with the will annexed, of the estate of Emily Smith, leave to sell the real estate of the deceased for the payment of debts and legacies, on a petition dated January 21, 1882. The case was submitted to the judgment of this court upon an agreed statement of facts, in substance as follows:

Emily Smith, who was a married woman, died on November 9, 1873 leaving a will, in which her husband was named as executor and which, after giving several legacies, one of which was a sum of money and all her furniture and wearing apparel, and providing for the erection of a monument to herself contained the following clause: "I give and bequeath to Roland Smith, my dear husband, all the residue of my estate, both real and personal, except my household furniture and wearing apparel. Said Smith is to keep in good repair all the buildings during his lifetime." On December 2, 1873, the will was duly proved and allowed, and Roland Smith was appointed executor, and gave bond as required by law. The testatrix, at the time of her decease, was seised and possessed of a certain messuage and buildings, with land adjoining, as a homestead, in which she dwelt with her husband, the value of which, at the time of her decease, exceeded the amount of the legacies and reasonable charges of administration. She was not possessed of, and did not leave, any other property or estate, real or personal, which has come to the possession or knowledge of the appellant or appellee. She left no debts to be paid out of said estate; and her executor never filed an inventory or rendered an account in the Probate Court. Roland Smith continued to occupy said estate until his death, which occurred on November 16, 1881. He never paid the legacies bequeathed by the will, or in any way assented to them; and no demand was at any time made upon him by any of the legatees for the payment of the legacies, or any action or proceeding at law or in equity brought to enforce or obtain them. No monument was ever bought or erected, as provided by the will. Roland Smith, on April 20, 1874, was married to the appellant, who has since lived on said homestead. Roland Smith, as directed by the will, kept the buildings in good repair during his lifetime, and paid out, in addition, a certain sum for improvements. He died on November 16, 1881, and by his last will, duly executed, devised said estate and his other property in trust for the use of his widow and his sister for life. The will has been filed in the Probate Court, but has not yet been proved. The appellant has not relinquished her right of dower in the premises. Since the death of Roland Smith, administration has been duly granted to the...