McGrath v. Quinn

Braley, J. The testatrix died without issue, and her husband, the petitioner, to whom she devised and bequeathed one third of her real and personal property, appeared by counsel and objected to the allowance of the will when offered for probate. By the provisions of the will the respondent, the executor, was exempted from giving a surety on his official bond. R. L. c. 149, § 3. But at some stage of the proceedings the counsel for the husband filed a writing stating that “in his behalf we withdraw all objection to proof of the instrument presented . . . and consent that said instrument may be allowed as the last will” of the testatrix, upon condition, that the executor furnish a bond in a certain sum with a surety company as surety. The bond having been furnished, and approved, and the will thereupon having been admitted to probate, the petitioner within one year thereafter availed himself of the right given by R. L. c. 135, § 16, by filing in the registry of probate his written waiver of the provisions made for him, and claiming such portion of his wife’s estate as he would have taken if she had died intestate. This election ordinarily would entitle him to his distributive share as provided in R. L. c. 140, § 3, cl. 3. Atherton v. Corliss, 101 Mass. 40, 47. He could not claim under the will on one hand, and on the other hand demand his rights as if he were a •statutory heir. Shelton v. Sears, 187 Mass. 455, 457. It is, however, contended by the respondent, that the withdrawal of further opposition to the probate of the will coupled with the condition, that the executor should give bond with a surety, constituted an assent to the testamentary disposition of [29] her property, which deprives him as the surviving husband of the right of waiver. The allowance of a will propounded for probate with the consent of the surviving spouse, who has appeared as the sole contestant, and the right to waive its provisions for his or her benefit are distinct. Bunnell v. Hixon, 205 Mass. 468. If the petitioner had indorsed on the will his assent to its terms, he would not thereby have relinquished his right to take his distributive share as if his wife had died intestate. Bunnell v. Hixon, 205 Mass. 468. A waiver moreover is the intentional relinquishment of a known right. Metropolitan Coal Co. v. Boutell Transportation & Towing Co. 185 Mass. 391, 397. And the question is one of fact. Taylor v. Cole, 111 Mass. 363. If we recur to the wording of the paper of withdrawal, the language previously quoted signifies, that all objections to proof of the will were withdrawn. It was on its face an arrangement for the termination of the contest over the petition for the probate of the will. But, if the conditional stipulation as to the bond raises any ambiguity, the intention of the parties may be shown by extrinsic evidence, and all doubt is removed by the testimony of counsel who acted for the executor, that the petitioner’s counsel when the agreement was entered into stated to counsel then acting for the executor, that after the probate of the will the petitioner intended to exercise his statutory right of election. Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104. DeMontague v. Bacharach, 187 Mass. 128, 132, 133. Wright v. Anderson, 191 Mass. 148. The present petition to enforce his rights having been properly brought in accordance with R. L. c. 135, § 16, to require the respondent to sell so much of the real estate of the testatrix as may be necessary to give him the amount to which he is entitled under R. L. c. 140, § 3, cl. 3, as amended by St. 1905, c. 256, the decree of the Probate Court ordering a sale, from which the respondent appealed, should be affirmed. So ordered.