Mathews v. Mathews

141 Mass. 511 | Mass. | 1886

W. Allen, J.

The St. of 1861, c. 164, reenacting, with additional provisions, not material to this case, the Gen. Sts. c. 92, § 24, provided that, when a man died, having disposed of his estate by will, and leaving a widow, the widow might, at any time within six months after the probate of the will, file in the probate office in writing her waiver of the provisions made for her in the will, and should thereupon be entitled to such portion of his estate as if he had died intestate. The petitioner did this, ■and, if that had been all, she would have been entitled, under the Gen. Sts. e. 90, § 15, to one half of the estate of which her husband died seised, and could have maintained this petition for partition. Sears v. Sears, 121 Mass. 267. Cochran v. Thorndike, 133 Mass. 46. The Gen. Sts. c. 90, § 15, provided that, when a man died seised of land in fee simple, not having devised the same, leaving a widow, but no issue, the widow, in lieu of dower, should be entitled to one half of said estate during her life. Section 16 provided that the widow might have her dower instead of the provision of the preceding section, if, within six months of the date of the letters of administration, she filed in the probate ■office her election to claim dower. Section 15 established a rule •of inheritance, and created an estate very different from dower. Under it a widow, on the death of her husband, became seised in common with the other heirs of an undivided half of the land of which her husband died seised, and she could maintain a petition for partition. As dower, the widow could be entitled to have one third of the land of which her husband was seised during .coverture (and in which she had not received her dower) set off to her, but she would have no seisin and could not have partition ■until assignment of dower. The dower estate might be more valuable to her than the statutory estate, and therefore the election to take it was given to her. The only question in this case is whether she exercised that election. If she did not, the statute gave her seisin of one half of the land, and the right of partition.

Within a week after the granting of letters testamentary, the •petitioner filed a writing in the probate office, by which she gave “ notice that she will claim her dower in the real estate of said deceased.” This was clearly, unless qualified in some way, filing in the probate office her election to claim dower. But this was contained in the same paper in which she waived the provisions of the will in her favor, and immediately followed the words, “ which provision she hereby waives and declines to accept; ” and the contention for her is, that the whole paper is to be ■construed as a waiver of the provisions of the will only, and as ■declaring an intention to take such estate in dower, or in lieu of dower, as the law would give her upon such waiver.

The petitioner possessed two rights, each to be asserted by filing a declaration in the probate office. The paper filed by her contains a clear and definite declaration as to each of those rights, conforming to the language of the statute respecting them ; she waives and declines to accept, as the statute provided she might waive, the provisions of the will; and she gives notice that she shall claim her dower, as the statute provided she might file her election to do. The words in relation to dower cannot be rejected as surplusage, and they cannot be read to mean anything but an election to take dower. The fact that they are contained in the same paper with the waiver of the provisions of the will, does not give them a different meaning from what they would have if filed in a separate paper. That fact might aid in construing doubtful words, but cannot change the plain meaning of the language used.

The declarations of the petitioner, whether verbal or in writing, and filed in the probate office more than two years after the granting of the letters testamentary, are incompetent to control the effect of the written claim of dower filed within the six months limited by the statute.

Order affirmed.