| Mass. | Feb 26, 1947
The Essex Trust Company, executor of the will of Frank W. Butterfield, late of Swampscott, deceased, filed a first account in which in schedule B thereof the accountant showed a. payment of .$3,336.49 to the guardian of Marion B. Butterfield who was the widow of the decedent. After hearing, it was decreed "that item 21 of schedule B of $3,336.49 be disallowed: that the accountant be charged in schedule C with the amount of $3,336.49, arid
From the findings of fact, it appears that the will of Frank W. Butterfield was proved and allowed on February 10, 1944. It also appears from the findings of fact as follows: “A petition for authority to waive the provisions of the will was filed in behalf of the widow, an incompetent, by her guardian, July 3, 1944, and a waiver of said will was filed in her behalf on July 18, 1944. Hearing was had on the above mentioned petition on May 18, 1945, statements and evidence were offered as to the surrounding conditions and,. thereafter, on June 5, 1945, a decree was entered as follows: 'That said guardian, in behalf of Marion B. Butter-field, the widow of said deceased, be authorized to file a waiver of the provisions of said will as prayed for in said petition.’ ” It further appears that the only item in the executor’s first account objected to was item 21, schedule B, and that ''the court finds that the waiver filed July 3', 1944, has not been approved as required.” It is clear from the findings of fact that in the mind of the judge the fact that the waiver was not approved as required by law was the ground for the disallowance of item 21 of the executor’s first account.
General Laws (Ter. Ed.) c. 191, § 15, provides that a waiver of a will must be filed “within six months after the probate of the will.” The waiver of the will in this case was filed in behalf of the widow on July 18, 1944, within the six months’ period after the probate of the will on February 10, 1944. By G. L. (Ter. Ed.) c. 201, § 45 (see St. 1945, c. 338, § 2), the guardian of an incompetent widow is authorized in her behalf to waive the provisions of her husband’s will, but by that section it is provided that “no waiver of the provisions of a will under this section shall be valid until approved by the probate court after notice to such, persons, if any, as the court shall deem proper and a hearing thereon.”
The question for our determination, is whether, on the
The case, therefore, turns upon whether by the decree of June 5, 1945, the waiver of the will of the testator by the guardian of Marion B. Butterfield, his widow, was "approved” by the Probate Court within the meaning of G. L. (Ter. Ed.) c. 201, § 45. We are of opinion that by this decree the waiver was "approved” by the Probate Court.
The guardian in her petition, described in the findings of fact as a "petition for authority to waive the provisions of the will,” represented that it was for the interest of the ward “to waive the provisions of said will” and prayed that "in accordance with the provisions G. L. c. 201, § 45, she be authorized to file a waiver of the provisions of said will.” The "character of a pleading or other paper put upon the files of the court must be determined from its essential substance.” E. S. Parks Shellac Co. v. Jones, 265 Mass. 108" court="Mass." date_filed="1928-11-26" href="https://app.midpage.ai/document/e-s-parks-shellac-co-v-jones-6438685?utm_source=webapp" opinion_id="6438685">265 Mass. 108, 110. Boston v. Santosuosso, 302 Mass. 169" court="Mass." date_filed="1939-01-30" href="https://app.midpage.ai/document/city-of-boston-v-santosuosso-6443081?utm_source=webapp" opinion_id="6443081">302 Mass. 169, 175. It is to be assumed that the petitioner intehded by her petition "to accomplish something and not do a futile act.” Hays v. Georgian Inc. 280 Mass. 10" court="Mass." date_filed="1932-06-29" href="https://app.midpage.ai/document/hays-v-georgian-inc-6440437?utm_source=webapp" opinion_id="6440437">280 Mass. 10, 15. The substance of the petition is to secure action by the Probate Court “in accordance with the provisions G. L. c. 201, § 45,” specifically referred to in the petition. That section confers no authority upon the Probate Court to authorize a guardian of a widow to file a waiver of the provisions of her husband’s will. However, it impliedly authorizes the court to approve such a waiver. The petition clearly indicates that the guardian sought action by the court under said § 45, that is, approval of the waiver, and not merely authority "to file a waiver.” The purpose of the petition was to accomplish something, that is, to secure action by
Since we hold that the waiver of the will has been approved and since the lack of such approval appears to have been the only ground for disallowance of item 21 of schedule B of the account, the decree disallowing that item and modifying the account accordingly must be reversed and a decree entered allowing the account as presented.
So ordered.