Tyler v. Wheeler

Knowlton, J. The principal question at issue is whether the defendant’s intestate, after having accepted the appointment [208] of executor of his wife’s will, was entitled to one half of her personal estate, under Pub. Sts. c. 135, § 3, and c. 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 to administer upon the estate. If some other person than the husband had been named in the will as 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 [209] 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 the extent and for the purposes for which it was made valid by the statute, and not for another and different purpose. We are of opinion, therefore, that his signature in these official proceedings was not a written consent to the will within the meaning of Pub. Sts. c. 147, § 6. Much of what we have said is applicable to the plaintiff’s contention that the defendant’s intestate is estopped from claiming his share by reason of an election to treat the will as valid. The doctrine is well established, that one who elects to take a devise or legacy under a will is estopped from setting up, a claim which would defeat the operation of the will. Hyde v. Baldwin, 17 Pick. 303. Smith v. Smith, 14 Gray, 532. Smith v. Wells, 134 Mass. 11. The reason of this rule is, that it would be unjust for him to claim property which the will assumes to dispose of, and which was treated by the testator as a part of his estate on which he relied to carry out his intentions expressed in the will, and at the same time to take under the will that which very likely would not have been given if the testator had supposed he would make such a claim. If by his claim he takes out of the estate a part of that which was treated by the will as belonging to it, it is reasonable that he should leave for those whose shares are diminished by his conduct the share which he would [210] have received if the estate had "not been diminished by his act. If he elects to take that share under the will, he is justly es-topped from making a claim against the will. But this rule has no application to a case where the claimant takes no interest, legal or equitable, under the will^In the present case, the testatrix left nothing by her will to her husband. The allowance which was made to him by the Probate Court for his services as executor was only a fair compensation. We are therefore of opinion, that no election was made which estopped the defendant’s intestate from claiming his share of the estate, or which amounted to a waiver of his claim. The case of Smith v. Wells, ubi supra, was decided on the ground that the husband had received and held a valuable property under the will, and was thereby estopped from making a claim at variance with any of the provisions of the will. We do not intimate that, if the law on this part of the case were different, the administrator de bonis non could recover in this form of action, in the absence of an account in the Probate Court, for assets which the executor appropriated and assumed to administer, and which could not be traced or identified as a part of his wife’s estate. A probate account cannot be settled in an ordinary action "at the common law, and in the present case it is agreed that the account as allowed does not correctly show the amount for which the defendant would be chargeable if the plaintiff’s theory of the law were adopted. See Brooks v. Brooks, 11 Cush. 18; Munroe v. Holmes, 9 Allen, 244; S. C. 13 Allen, 109 ; Prentice v. Dehon, 10 Allen, 353 ; McLane v. Curran, 133 Mass. 531; New England Trust Co. v. Eaton, 140 Mass. 532 ; Cobb v. Kempton, 154 Mass. 266. Judgment for the defendant.