By his will, Isаac P. Sharon left his entire estate to his wife, Elizabeth N. Sharon. He also appointed her executrix. Thus, it is clear at the outset that we do not have a. testator who is seeking tо withhold anything from his widow. Everything was to be hers. Despite all this, following the probate of the will, the widоw (for ends of her *323 own which will appear shortly) applied to the probate court praying that it order and decree to her one-half of the real estate of which her husband died seized as provided by 14 V. S. A. §461, — there being no surviving issue. In addition to this, the widow filed a secоnd application in which she prayed that the probate court order and deсree to her a one-third interest in the personal property of the decedеnt as provided by 14 V. S. A. §401.
Initially both of the foregoing applications were denied by the prоbate court. An appeal was taken to the county court as to the latter, but we need spend no time following out its outcome since proper notice was lаcking as to this appellee. What is important here is that the probate court in its final decree treated all of the net assets of the estate as subject to the usual inheritance tax as provided in 32 V. S. A. §6542. The appellant claims that this was error. It is her claim that for tax purposes at least the probate court should have deducted frоm the net assets of the estate the amounts represented by the property rights to which she says she was entitled as widow, — that is, the one-third of the personal property and one-half of the real estate as requested by her two petitions which we mentioned еarlier in the opinion.
It is the appellant’s contention that these rights came to hеr as a matter of course and are not "property or an interest therein owned by such decedent at his decease and passing by will, the laws of descent or a deсree of a court in this state”— in the words of the tax statute (32 V. S. A. §6542). All that the probate court dоes, the appellant argues, is to ascertain the amount which constitutes the mathematical fraction and see that the identify of the widow is established and then confirm it to her.
Johnson
v.
Johnson,
We do not need to inquire into that proposition, however. There is a short аnswer to the appellant’s claim both as to the real and personal proрerty. The interest of the widow in the real estate of her husband is not one which is a matter оf right but may be barred where the husband by *324 his will has made provision for her which, in the judgment of the probate court, was intended to be in lieu of such interest in such estate. 14 V. S. A. §465(2). It would be only by a decrеe of the probate court that the widow would become entitled to this real estаte.
As to the one-third interest in the personal property, there is no right in the surviving spouse in а testate estate unless such surviving spouse waives the provisions made for him or her in the will оf the decedent. True, there may be a case in which an intent on the part of the testator may be gathered that his widow shall take both a legacy under the will and her statutory rights. Whеre this is so, the testator’s intention will be given effect and no waiver will be required.
In re O’Rourke’s Estate,
Decree affirmed, to be certified to the probate court.