Tyler v. Wheeler

• Citation: 160 Mass. 206,35 N.E. 666
• Parties: TYLER v. WHEELER.
• Decision Date: 29 November 1893
• Court: United States State Supreme Judicial Court of Massachusetts

160 Mass. 206

35 N.E. 666

TYLER v. WHEELER.

Supreme Judicial Court of Massachusetts, Worcester.

November 29, 1893

COUNSEL

Jonathan Smith and Frank P. Goulding, for appellant.

C.F Baker and Herbert Parker, for appellee.

OPINION

KNOWLTON J.

The principal question at issue is whether the defendant's intestate, after having accepted the appointment of executor of his wife's will, was entitled to one-half of her personal estate, under Pub.St. c. 135, § 3, and chapter 147, § 6. The last-mentioned statute is as follows "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 more than one-half of her personal estate." The defendant's intestate gave no written consent, and there is no doubt, under the law, that before the will was presented for probate it was a will which could take effect only upon one-half of the personal estate of the testatrix after the other half had been reserved for her husband, who was entitled to it by force of the statute. The plaintiff contends that by applying for an appointment and giving a bond as executor the husband lost his right to the share which he should otherwise have received. The grounds of this contention are, in substance, two: First, that his signature to the petition for the appointment and to the bond was a written consent to the will; and, secondly, that his conduct in assuming the position of executor was an election that the will should be given full effect, and was a waiver of his rights under the statute, or an estoppel against his claim.

First. Did his action constitute a written consent to the will? Manifestly not the kind of written consent contemplated by the statute, for it is evident that what is meant is a formal, express consent in writing. Conceding that consent may be given informally if it is in writing, and its meaning is clear, we have to consider the nature of his action in accepting the trust of executor. In the first place, it is to be remembered that the will was legal and valid, except that it took effect only upon a part of the estate of the testatrix. It was the duty of the person appointed in it as executor to present it for probate, to take out letters testamentary, and administer upon the estate. If some other person than the husband had been named in the will for executor, he would have presented a petition, and signed a bond, as the husband did. In his petition he would have set forth truly that the testatrix left a will, and he would have signed a bond agreeing to administer the estate "according to law and the will of the testator." This would have meant a will which did not affect that portion of her estate which the law gave her husband. To administer according to law and the will of the testator would have meant to turn over to the husband his share, and to dispose of the remainder under the will. There would have been no implication that it would deprive the husband of his share, or that it was a will which could have any more extended operation than that permitted to it under the law. We see no reason why the husband's act should have any different meaning in this respect than that of any other person who might have been appointed executor. He took no beneficial interest under the will. Mere probate of the will, whether on his petition or on that of another person, could not affect his legal rights. There was nothing inconsistent in his proving the will, and at the same time claiming his share of the property which was not affected by it. His performance of his official duty as executor was entirely apart from consent to the will for the purpose of giving it an effect which the law did not otherwise give it. It was a recognition of it as a valid instrument to...