Bunnell v. Hixon
91 N.E. 1022
Mass.
1910
Check Treatment
Braley, J.

By the common law, unless acting under a power of appointment, a married woman could not make a valid will devising real property, although with her husband’s assent she could make a bequest of her personal estate to strangers. Nolin v. Pearson, 191 Mass. 288, 284. The St. of 1842, c. 74, however, modified the common law, enabling her, if the written consent of her husband was indorsed thereon, to make a testamentary disposition of any property held in her own right, “ provided, that the rights and interests of the husband to and in any such property shall in no way be affected thereby,” but gave to her the power of revocation which she could exercise at her pleasure. But a majority of the court having held in Morse v. Thompson, 4 Cush. 562, that under the statute she could not devise her real estate to him, the St. of 1850, c. 200, was passed, permitting married women to devise and bequeath their separate estates to their husbands. The St. of 1855, c. 304, § 5, and St. of 1857, c. 249, § 4, followed, which further enlarged the right, until by the Gen. Sts. c. 108, § 9, she could make a will as if sole, but unless her husband consented in writing, the testatrix could not deprive him of more than one half of her personal estate. The Pub. Sts. c. 147, § 6, while re-enacting this provision, enlarged the limitation by preserving the rights of the husband as tenant by the curtesy. In pursuance of a public policy which has constantly tended to abrogate the doctrine of the unity in person of husband and wife, the Sts. of 1884, c. 801, 1885, c. 255, and 1887, c. 290, were enacted, which materially amended Pub. Sts. c. 147, § 6, by conferring upon a married woman the power, after a decree had been entered that she had been deserted by her husband, or was living apart from him for justifiable cause, to dispose by will of all her property with the same effect as if unmarried. The amendatory acts, however, increased the husband’s rights by providing that if no issue were born of the marriage, he should hold for life, “ the use of one half of her real estate,” or her real estate not exceeding $5,000 in value, where no issue survived her. The Sts. of 1899, c. 479, and of 1900, c. 450, revising the laws relating to the distribution of the estates of deceased persons, and the rights *471therein of surviving husbands and widows, and repealing Pub. Sts. c. 147, § 6, as amended, never became operative. The period when the second statute, which repealed the first statute while re-enacting its provisions, was to become effective had not expired on December 31, 1901,* from and after which the Revised Laws took effect and expressly repealed the act. St. 1901, c. 461. R. L. c. 226, § 1; c. 227. Shelton v. Sears, 187 Mass. 455.

In accordance with the statutes then in force, the testatrix on October 30, 1901, executed, and published her will disposing of both real and personal property, to which her husband gave his written consent indorsed upon the instrument. No children appear to have been born of the marriage, and by its provisions he is deprived of any share in the distribution of his wife’s estate. But at the death of the testatrix on June 11, 1908, a further and radical change had been wrought in the rights of a surviving husband in the property of a deceased wife where she died testate. By R. L. c. 135, § 1, a married woman, if of full age and sound mind, can make a will with the same effect as if the marital relation did not exist, and by § 16, where no decree in her favor for separation has been entered under R. L'. c. 153, § 36, the surviving husband within one year after probate may waive the will and claim such portions of the estate as he would have taken if she had died intestate. The legislative purpose was to confer upon the surviving husband, not only a new, but an equal right with the surviving widow, to waive the will of the deceased spouse and participate in the distribution of the estate as a statutory heir. The validity of the will of the testatrix was not dependent upon the husband’s consent, but his act was only a waiver of his statutory rights as they then existed. Kelley v. Snow, 185 Mass. 288, 302. Before the will took effect the statute was repealed, and under R. L. c. 140, § 3, cl. 3, he became entitled, if she died *472intestate, to a much larger interest in her real and personal property. It therefore was not within her testamentary power at the time of her decease to deprive him of the right by proper proceedings to claim and receive the same share or interest which he would have taken upon intestacy. R. L. c. 135, §§ 4, 16. Burroughs v. Nutting, 105 Mass. 228. Johnson v. Williams, 152 Mass. 414.

Decree of the Probate Qourt affirmed.

Notes

St. 1900, c. 450, provided in § 12 that that act, with the exception of one section, should take effect on July 1, 1901. St. 1901, c. 461, extended this time until January 1,1902. The previous statute, St. 1899, c. 479, provided in § 14 that it should take effect on April 1,1900. St. 1900, c. 174, extended this time until January 1,1901, but before that date the act was repealed by St. 1900, c. 450, § 11.