21 Mass. 33 | Mass. | 1826
delivered the opinion of the Court. The appellants are the widow and brother of Benjamin Stebbins deceased, and are the principal legatees named in his last will and testament. They object as well to the probate of the will, as to the grant of administration to the defendant.
The objection first in order relates to the jurisdiction of the judge of probate, which, it is argued, did not attach until
By our law, whoever has a right to offer a will in evidence, or to malee title under it, may insist on having it
But the appellants contend that the provisions of the will have become void, first, by the refusal of the executor to accept the trust, and secondly, by the refusal of all the legatees and devisees to take under it.
As to the refusal of the executor, it is very clear that it does not malte void the legacies. The statute is express, that in such case administration shall be granted with the will annexed; and so is the law in England. Toller’s Law of Executors &c., (3d ed.) 42; Swinburne, pt. 6, § 12.
As to the other point, what would be the legal effect of a renunciation by all the devisees and legatees, we do not at present determine. Nothing appears amounting to a renunciation. But if this were doubtful, the question is not tc be settled in the court of probate. The respondent has a right to be heard on this point in a court of law, and he cannot be so heard if the grant of probate should be revoked. The most that appears at present is an intention to renounce: and even this is not very clear ; it is possible that the intention was merely to impede the creditors in the collection of their debts. Until the legatees shall actually renounce their legacies, their assent to the provisions of the will, which are apparently beneficial to them, will be presumed. Townson v. Tickell, 3 Barn. & Ald. 31. If they should persist in the intention to renounce the estate, the probate of the will will not restrain them. And then the question will be fairly raised, whether this can be done to the prejudice of creditors.
The grant of administration stands on a different footing.
By the St. 1783, c. 24, § 16, [see Revised Stat. c. 63, § 5,] it is made the duty of an executor of a will, knowing of his being so appointed, to cause such will to be proved within thirty days, or to present the said will and in writing declare his refusal. And upon such refusal the judge of pro bate shall commit administration of the estate of the deceased, with the will annexed, unto any widow or next of kin to the deceased, or one or more of the devisees, or in case of their refusal, to one or more of the principal creditors.
If the executor refuse the executorship, his renunciation should be entered and recorded. A refusal by any act in pais, as a mere verbal declaration to that effect, is not sufficient. Toller, 42.
The widow and next of kin now claim the right to administer, and as their right is paramount to that of the creditors, and as they have done nothing amounting to a relinquishment, that part of the decree which relates to the granting of administration must be reversed. The residue relating to the probate of the will is affirmed.
See Revised Stat. c. 62, § 14; Smith v. Moore, 6 G-reenl. 274.
See Williams on Executors &c. pt. 1, bk. 3, c. 6, vol.-l, p. 147
See Williams on Executors &c., pt. 1, bk. 5, c. 3. § 1, vol. 1,p 283; Jackson v Jeffries, 1 Marshall’s (Ken.) R. 88.
See Williams on Executors &c., pt. 1, bk, 3, c. 6, § 2, vol. 1, p. 153. The renunciation of an executor may be made by letter showing such m