Firth v. Denny

Merrick, J. The widow of the testator availed herself of her right under the statute to waive the provision made for her in the will; and she thereupon took all that portion of his real and personal estate to which she would have been entitled if he had died intestate. Gen. Sts. c. 92, § 24. St. 1861, c. 164, § 1. But this renunciation annulled only those provisions in the will 471 in which she had a personal interest. It could not revoke or invalidate the bequests to other legatees, nor in any way affect them except by causing a diminution of the remaining part of the estate out of which they were to be paid. In recurring to the will, it appears that the testator bequeathed to his wife the income of the sum of nine thousand dollars for and during her natural life; and at her decease he bequeathed one half of said sum of nine thousand dollars in different sums to several legatees, and the other half thereof to his residuary legatees. It does not appear exactly to what extent the election made by the widow left the residue of the estate in the hands of the executors less than it would have been if she had accepted the provision made in the will in her behalf. But this is not material, since it is agreed that after she had received all to which she became entitled in pursuance of her election, there remained sufficient estate to pay all the legatees the several specific sums bequeathed to them, and to leave still a balance to be received by the residuary legatees. And as.it is a consequence that, from the election and preference expressed by the widow, there was less estate left to be distributed among the legatees than there would have been if she had not waived the provisions in the will in her behalf, the loss must fall upon the residuary legatees, because no specific or definite sum was given to them, but they were to take whatever should be left otherwise undisposed of upon a final settlement of the estate. The consequence therefore is, that the fund of nine thousand dollars, of which the income was bequeathed to the wife of the testator, must be retained in the hands of his executors during her life, and on her decease be paid over, one moiety thereof to the several legatees to whom particular and specific sums are bequeathed, and the remaining moiety to the residuary legatees, who will also be entitled to receive during her life the entire income of the whole fund, as it shall from time to time accrue; and a decree must be entered accordingly.