Hathaway v. Hathaway's Estate

The opinion of the court was delivered by Wheeler, J. Erom the pleadings in this case, it appears that a pecuniary provision was made for the petitioner by her husband, with her agreement, before marriage, to have effect after his death, and was expressed to be in lieu of dower, and that in the agreement she stipulated not to claim any part of his estate otherwise, unless some part thereof should be given to her by his will, or some act done by him after the execution thereof. This express agreement not to claim any part of the estate otherwise than according to' the agreement, would bar her claim to homestead, without doubt, unless she should waive the provisions of the agreement, and elect to give up those, and take homestead and other provisions made by law, instead of them. Meech v. Estate of Meech, 87 Vt. 414. And this pecuniary provision was, by express statute, a bar to her claim for dower, unless she should make her election to waive it within eight months after administration taken, or should procure an extension of the time for making election in the probate court, and make the election within the extended time, and notify the court of her election in writing. Gen. Sts. 412, §§ 5, 6. Laws of 1864, No. 66, 74. Gen. Sts. 1870, 854. As she was not the first wife, and there was no issue, the probate court could deny dower, although she should elect and undertake to waive the pecuniary provision and to take dower, if the provision was sufficient for her comfortable support during life. Gen. Sts. 412, § 6. But the probate court had not power to give, without waiver of the pecuniary provision and notice of it in writing, although the provision was wholly inadequate to her support. The pleadings further show, that she has received the pecuniary provision made for her, and although they show that she was induced to receive it by the fraud, artifice, and connivance of the administrator, and by his representing to her that this provision was all that she would ever be entitled to out of the estate, they do not show but that she has continued to hold it, nor that she has offered to restore it to the estate, nor that she has made any elec [242] tion to waive it, nor that slip has procured any extension of the time for making election to waive, nor that she notified the probate court of any election by her to waive this provision and take dower and claim homestead. The pleadings do show that the probate court, on her application, caused homestead and dower to be set out to her, and this proceeding may, perhaps, be considered as equivalent to a decision that the provision was not sufficient for her support, and to an extension of the time for making election. But the appeal to the county court was from that proceeding, and that appeal is this case; and that proceeding could not supply the want of an act to be done by the petitioner herself, that was necessary to perfect her right to what she claimed in the proceeding, and is still claiming on the appeal. The election to waive, waiver, and notice of it in rvriting to the probate court, wore acts to be done by her herself, and were indispensably requisite to her right to either homestead or dower, and are all lacking. The judgment' of the county court, denying the prayer of the petitioner’s petition, was, therefore, correct. As the petitioner did not elect to waive the pecuniary provision made for her in the agreement by which she agreed not to claim any part of her husband’s estate otherwise, which would include an agreement not to claim homestead, it is not necessary to decide whether by waiver of the provision she could entitle herself to homestead or not, as the statute in relation to waiver applies to dower and not to homestead in terms, and there is no statute provision expressly giving a right to waive a provision that is in lieu.of homestead and take homestead. Judgment affirmed.