In re Baker's Estate

Tyler, J. The county court, by agreement of parties, heard the case upon the facts found by the probate court and affirmed its decree. The probate court heard and decided the case upon the facts set forth in the petition of the administrator of Wm. A. Baker’s estate made to that court in Nov., 1905, and upon the evidence produced in its support. The petition alleges in substance that Mrs. Sarah J. Baker died in Feb., 1904, leaving a will in which certain provisions were made for her husband Wm. A. Baker, who survived her; that when the will was presented for probate the husband, by his attorney, gave notice of his intention to waive the provisions of the will made in his behalf and take his statutory rights in lieu thereof; that the said Wm. A. being sick and unable to attend court, his attorney, at his request, drew a formal waiver for him to sign; that he duly executed it and sent it by mail to the attorney to be filed in the probate court; that the attorney received it and took it to the probate court at the time he filed an application by the husband for the appointment of an administrator upon his wife’s estate, and supposed the waiver was filed with that paper until after the husband’s death which occurred in April, 1904, when he learned that it had never been filed. The probate court found the fact that the waiver was never filed in that court and that it never came to the knowledge of the court. It also found that its loss had been duly proved and held that the husband intended to waive the will and did waive it, and made a decree accordingly. Section 2935, P. ’S., provides that a husband may waive the provisions of his wife’s will,, when she dies leaving no issue, ‘ ‘ as a widow may waive the provisions of her husband’s will.” But section 2925 (III) requires that the widow shall notify the court [507] in writing of her election to make such waiver, and that the waiver shall be made within eight months after the will is proved, or after letters of administration have been granted upon his estate, or in such other time as the court in its discretion allows. It was held in re Peck’s Estate, 80 Vt. 469, 68 Atl. 433, that the words, “as a widow may waive the provisions,” * * * means “in the same manner.” That case is also decisive that notice of such election must be given to the probate court within eight months unless the time is extended by the court. In the present case, as the waiver was not filed in said court nor 'brought to its knowledge, and no extension of time was granted or prayed for, the statute was not complied with and there was in law no waiver. An intent to waive the provision of the will made known only by signing the paper was not sufficient. The acts of the husband and his attorney did not constitute an election, as a matter in pais, to waive the provisions of the will. In re Peck’s Appeal, supra, p. 487. The parol notice by the husband to the probate court, at the time he presented the will for probate, of his intention to waive the will can have no force, for, if for no other reason, the time when a waiver could be made had not then arrived. Judgment reversed and judgment that there was no waiver by William A. Baker in his lifetime of the provision of the will of his wife, Sarah J. Baker, and that her estate be distributed according to the provision of the will.