Mathews v. Mathews

A widow, within six months after the probate of her husband’s will, filed in the Probate Court a writing, signed by her, stating that the will made provision for her, “ which provision she hereby waives and declines to accept, and hereby gives notice that she will claim her dower in the real estate of said deceased, and so much of the personal estate as she may be entitled to by law.” Held, that this was an election by her to take dower in her husband’s estate; and that she was not entitled to one half of said estate during her life, under the Gen. Sts. c. 90, § 15. Held, also, that the construction of this paper was not affected by a paper filed by her in the Probate Court, after said six months.

Petition for partition of certain-real estate in Boston. Trial in the Superior Court, without a jury, before Staples, J., who reported the case for the determination of this court, in substance as follows: The petitioner claims to be entitled to one half of said estate during her natural life, under the Gen. Sts. c. 90, § 15. The petitioner is the widow of Hugh Mathews, who died testate on August 11, 1875, seised of the real estate in question, and leaving no issue. His will was proved and allowed in the Probate Court, an executor thereof was duly appointed and qualified, and letters testamentary were granted on September 6, 1875. On September 13, 1875, the petitioner filed in the probate office a certain writing signed by her, as follows: “ Respectfully represents Sophia Mathews, widow of Hugh Mathews, late of Boston, in said county of Suffolk, deceased, that said Hugh Mathews, in his last will and testament, which was duly proved and allowed in the Probate Court for said county of Suffolk, on the sixth day of September, A. b. 1875, made provision for her, which provision she hereby waives and declines to accept, and hereby gives notice that she will claim her dower in the real estate of said deceased, and so much of the personal estate as she may be entitled to by law.” On December 7,1877, she filed another writing, signed by her, as follows: “ Respectfully represents Sophia Mathews, the widow of Hugh Mathews, hereby confirming and insisting on her waiver of the provisions of his will in her behalf, and to her claim for so much of the personal property as she may be entitled to if her husband had died intestate, hereby declares that her claim to the real estate therein is for such portion of the real estate as she would have been entitled to if her husband had died intestate, namely, one half of said real estate during her natural life; and that her claim is erroneously in her said petition called dower, and that she amends her said petition, and does not insist on a claim, if any she can make, for dower, but, instead thereof, waives the same, and claims her right to one half of the real estate for life.” The respondents are interested in said estate as the next of kin and devisees under the will of said Mathews. The judge found the following facts: The real estate in question is the only real estate of which said Mathews was seised or possessed in this Commonwealth during the coverture. By the terms of the will, the use, benefit, and improvement of this estate was given to the petitioner in lieu of her rights at law therein as long as she should remain unmarried, and, upon her marriage or death, said estate was to go to the brothers and sisters of the testate, their heirs and assigns by right of representation, the respondents in this action; >ut in case the widow should elect to waive the provision of the vill, the executor thereof is empowered and directed to sell and ispose of said estate, and to distribute the proceeds thereof as drected by said will. This is the nature of the respondents’ aterest in said real estate. There has been no change in the title to said estate since the .eath of said Mathews, and all the parties in interest are the same, except that, in 1878, or later, one of the devisees died, leaving one child and a widow surviving. By consent of all the parties in interest, the petitioner, as agent of all concerned, collected the rents of said estate for about two years succeeding her husband’s death. In December, 1877, she settled her account as such agent, paying over two thirds of the collections, and retaining one third to her own use; from the death of her husband to the present, she has received one third of the rents; but during the same time, however, she always contended that she was entitled to one half of said estate during her life; and, at the trial, her counsel contended that she intended and understood this to be her claim in her said waiver of the provisions of the will, filed in the probate office on September 13, 1875. Upon the foregoing facts, the judge ruled that the petitioner had elected to take, and was only entitled to, dower at common law in the premises, and that the petition could not be maintained ; and ordered the same to be dismissed for want of jurisdiction, with costs. If the above rulings were correct, the order was to stand; if incorrect, partition to be ordered as prayed for.