Fuller v. Wilbur, 170 Mass. 506

Fuller v. Wilbur

170 Mass. 506 | Mass. | 1898

Morton, J.

The first question in these cases is, What interest did the widow of Elijah Wilbur take under her husband’s will? There is some ground perhaps for saying that, with the exception of the legacies to the children, she took the entire estate absolutely and in fee, subject to be devested of it if she married again; but we think that the better construction, and the one which is according to the weight of authority here and elsewhere, is that she took a life estate determinable on the happening of that event. Knight v. Mahoney, 152 Mass. 523. Loring v. Loring, 100 Mass. 340. Dole v. Johnson, 3 Allen, 364. Mansfield v. Mansfield, 75 Maine, 509, 512. Nash v. Simpson, 78 Maine, 142, 147. Evans’s appeal, 51 Conn. 435. Cooper v. Pogue, 92 Penn. St. 254, 257. 4 Kent Com. 26, 27. 2 Bl. Com. 121. 1 Washb. Real Prop. (5th ed.) 63.

The words “ so long as she remains my widow ” imply a continuance of the estate during widowhood, and no longer; and at most it could not extend beyond her life. Further, the estate is given to her for her “ use and benefit,” which are apt words in connection with a life estate, but which hardly would be used where the intention was to give an absolute estate, and to render it liable to be defeated on the happening of some future event. Neither are there any words which give her a power of disposition over the estate. It is true that an unqualified gift of the use, income, or improvement of personal property vests the property absolutely in the taker. But the gift here was not unqualified.

The next and remaining question relates to the effect of the paper which was signed by the heirs at law authorizing and requesting the executrix, who was the widow, “ to proceed in the administration of said estate without taking or filing an inven*508tory thereof, and without rendering any account of such administration in Probate Court.” We think that this exonerated the executrix from taking and filing an inventory, and from returning an account in the Probate Court so long as it continued in force, and that neither she nor the sureties on her bond would be liable for breaches of it occurring in the mean time in respect to such matters. But it did not transfer to her the rights of the heirs in the estate, or relieve her from the obligation to account for it if they at any time required her to do so, or justify her in dealing with the estate in. any other particular in a manner nob authorized by law. The agreement was revocable, and she was bound to render an account when required by the Probate Court to do so, on the petition of any of the parties interested. She failed to render a satisfactory account when so required, having previously received notice from the executor of one of the heirs that the agreement was revoked, and thereby committed a breach of her bond. Whether she also committed a breach in failing to administer the estate according to law, it is not necessary now to consider.

By reason of the death of Pella L. Wilbur a suit against her administrator could not be joined with a suit against, a surety on her bond. New Haven & Northampton Co. v. Hayden, 119 Mass. 361. Cochrane v. Cushing, 124 Mass. 219. And we- do not see how the agreement authorizing the executrix to proceed without filing an inventory or rendering an account operates to relieve the surety from liability on the bond. He was a party to the agreement himself. Further, the agreement was not a binding one. As already observed, it was revocable, and the executrix could have been compelled to render an account or file an inventory at any time when any of the parties interested saw fit to apply to the Probate Court to order her to do so.

In accordance with the terms of the report, there must be judgment in each case for the penal sum of the bond, and the cases must be sent to an assessor to determine the amount for which execution shall issue.

So ordered.