61 N.H. 596 | N.H. | 1882
Upon the death of Oliver W. Penhallow, in 1873, the plaintiff, as his widow, had her election to accept the provisions made for her in his will, or, waiving such provisions, to take her distributive share in his estate. No laches can be imputed to her on account of the delay in filing this bill, for she has been incapable of making an election since the decease of her husband by reason of her mental condition. The prayer of the bill is, that the court will elect for her to take her distributive share in the estate of her husband.
At common law it has always been held that a lunatic cannot elect. Ashby v. Palmer, 1 Mer. 296; In re Wharton, 5 De G. M. G. 33. Nor can an infant. Carr v. Ellison, 2 Bro. Ch. 56; Van v. Barnett, 19 Ves. 102; Burr v. Sim, 1 Whart. 252, 265. Nor a married woman. 1 W. T. Lead. Cas. Eq. 272, and authorities cited in note. See, also, note to lady Cavan v. Pulteney, 2 Ves. Jr. 544 (Sumner's ed.). The right of election is personal, and can be exercised only by the person entitled to elect, or in case of incapacity, by a court of chancery acting for him. Merrill v. Emery, 10 Pick. 507; Sherman v. Newton, 6 Gray 307; Atherton v. Corliss,
A husband's right to dispose of his estate by will is limited by his widow's right to waive any provision in her behalf, and to take under the statute. The right to elect to take under the will or under the statute is given to her, and not to those who may inherit from her. G. L., c. 202, ss. 7-10. The right does not pass to her representatives at her decease. It is not necessarily a question of mere pecuniary advantage. Her knowledge of the family arrangements and of the motives and wishes of her husband, and other considerations better known and appreciated by her, may have weight and influence with her in determining her election. Pinkerton v. Sargent,
In England the court of chancery has the care of the persons and estates of idiots and lunatics, and in cases of election the jurisdiction is generally exercised by that court. 2 Maddock Ch. 48-60; 2 Sto. Eq. Jur., ss. 1075-1085, 1097, 1098, 1362-1365; Cauffman v. Cauffman, 17 S. R. 16, 24-26; Kennedy v. Johnston, 65 Pa. St. 451. When necessary the matter is referred to a master to inquire what will be most beneficial to the lunatic. The practice as to infants is the same; also as to married women in jurisdictions where their common-law disabilities have not been removed. Streatfield v. Streatfield, reported cas. temp. Talb. 176 (1 W. T. Lead Cas. Eq. 273); — see, also, Chetwynd v. Fleetwood, 1 Bro. P. C. 300; Ashburnham v. Ashburnham, 13 Jur. 1111; Gretton v. Haward, 1 Swanst. 409, 413; 1 W. T. Lead. Cas. Eq. (Hare Wallace's notes) 420; Addison v. Bowie, 2 Bland 606, 623; McQueen v. McQueen, 2 Jones Eq. 16.
Equity as a branch of the law has always existed as a part of the common-law, in its broadest sense, in New Hampshire. Wells v. *599
Pierce,
If, in this case, it is found that the effect of an election to waive the provisions of the will will be to divert property from the channel in which the testator intended it to go, and if the diversion is not required by the wants and circumstances of the widow, the prayer of the bill cannot be granted. The case will be heard at the trial term.
Case discharged.
CARPENTER, J., did not sit: the others concurred.