144 Mass. 160 | Mass. | 1887
By the Pub. Sts. e. 147, § 6, which was a substantial reenactment of the Gen. Sts. c. 108, §§ 9, 10, a married Avoman was empowered to devise her real estate as if she were sole, except that her will should not, without the written consent of the husband, operate to deprive him of his tenancy by the curtesy. The manifest intention of the Legislature was to confer on a married woman full testamentary capacity as to her real estate, subject only to the right of the husband as tenant by the curtesy. The consent of the husband is not necessary to give validity to the will or effect to its operation, except as it may deprive him of his right as tenant by the curtesy. Silsby v. Bullock, 10 Allen, 94. Burroughs v. Nutting, 105 Mass. 228.
While it is admitted that this was the effect of the statute before the enactment of the St. of 1877, c. 83, it is contended that the latter statute, which is reenacted in the Pub. Sts. c. 124, § 1, gives to the husband who is not tenant by the curtesy. a right in his deceased wife’s lands, of which she cannot deprive him by will. The provision is, that the husband who is not
We do not think that the statute can be so construed. The expression in the St. of 1877, c. 83, “ unless the wife shall by will pro.vide otherwise,” and in the Pub. Sts. e. 124, § 1, “ if his wife does not provide otherwise by her will,” does not intend a provision for the husband, but a provision in relation to the property. The apparent intention is, not to take from the wife the power of devising her land, but to direct the descent of lands of which she had made no disposition by will. Like the similar provision in regard to a widow, the statute is a modification of the statute of descents. Sears v. Sears, 121 Mass. 267. The words quoted from it above are equivalent to the words “ not having lawfully devised the same,” in the statute of descents. Gen. Sts. c. 91, § 1. St. 1876, a. 220. Pub. Sts. c. 125, § 1. The right of the husband does not attach to lands devised by the wife ; and it is subject to the creditors of the wife. In this respect, it corresponds with the interest given, in § 3 of the same chapter, to a wife in the lands of her husband who died without issue. The St. of 1885, e. 255, by striking out the words above quoted from § 1, made a material change in the statute, but cannot affect the rights of the petitioner.
The wife of the petitioner made a will, in which she gave a pecuniary legacy to the petitioner, and added the words, “ which is to be in full settlement of all his demands upon my estate,” and devised to others all of her real estate; she thereby did “ provide otherwise by her will ” than that her husband should have one half of her lands for his life.
Petition dismissed.