| Mass. | Dec 3, 1931
This is an appeal by the respondent, executor of the will of Bridget Hurley, from a decree overruling his demurrer and denying certain requested rulings, and from the entry of a decree declaring null and void a waiver of the will of Daniel Hurley filed by his widow, Bridget Hurley. By his will he left his estate to his widow for life and at her death to his niece, Catherine Clare. His widow continued to live in his home from his death until June 15, 1930, when at her request she was taken to the house of her brother where she remained until her death on June 26, 1930. On June 18, 1930, a paper, dated June 12, 1930, purporting to be a waiver of the provisions of her
In October, 1930, the petitioner, executor of the will of Daniel Hurley, joined with Catherine Clare in a petition in equity to have the waiver filed by Bridget Hurley declared null and void on the ground that she was physically and mentally incompetent to waive the provisions of her husband’s will. The judge ruled that the petitioners to prevail must prove that Bridget Hurley was mentally unable to comprehend and understand that she had a right to elect to waive the provisions made for her under her husband’s will at the time she signed the waiver and that the petitioners could not. prevail unless they proyed by a preponderance of the evidence that Bridget Hurley was insane on June 12, 1930, the date when she signed the waiver.
There was testimony from her family physician that when her husband died she did not seem to realize the fact; that in April and June, 1930, when the witness attended her, Mrs. Hurley was- not capable of transacting ordinary business and not mentally capable of understanding the nature and consequences of her own acts; that on June 15, 1930, she did not have the mental capacity to transact any business that had to do either with her estate or with that of her husband. There was other testimony tending to prove that for the last year of her life she failed mentally, did not seem to remember anything, talked to herself in an incoherent manner, and showed a lack of understanding; that she had had a slight shock in 1929, and was suffering from diseases of the heart and other ailments.
■The trial judge stated his findings, in part, as follows: “I find that said Bridget Hurley was about eighty years of age. She had marked arteriosclerosis, chronic myocarditis, sclerosis of the brain, and interstitial nephritis. She was disoriented during the illness of her husband and when his death occurred did not realize that he had passed on. On June 15, 1930, three, days after she signed the
There was evidence warranting- the finding that the mentality of the deceased was impaired, and that at the time of. signing the waiver of the provisions of her husband’s will she did not realize the significance of her act. We cannot say that the judge was not warranted in believing the testimony tending to support.the conclusion which he reached, and in not giving weight to the evidence tending to prove that she had sufficient mental capacity to waive the provisions of the will. Waiver is an intentional relinquishment of a known right. The fact that a will purporting to have been executed by her on June 19, 1930, had been allowed was not controlling on the.issue of her capacity to execute a valid waiver of the provisions of her husband’s will. It does not appear that any contest was made on the question of her sanity in that case, and it may well be that a person having capacity to make a will on one day might not have capacity to waive the provisions of a will on another. See G. L. c. 191, § 1, and G. L. c. 201, § 45.
The bill sufficiently set forth grounds for equitable relief. It was not essential to its maintenance that the word “insanity” should be used. The allegation that Bridget Hurley was mentally and physically incompetent to waive the provisions of her husband’s will and that she was unable to understand the nature and consequences of her acts was enough. The findings are sufficient to establish such insanity that no valid waiver of her husband’s will could be made unless by a guardian acting under G. L. c. 201, § 45, as amended by St. 1924, c. 8. The judge found specifically that when she signed the waiver she did not realize
One of the petitioners testified that he did not know of the alleged waiver until the first of July. Only three days elapsed between the date of allowance of Mr. Hurley’s will and the date of Mrs. Hurley’s death. The petition to declare the alleged waiver null and void was filed October 2, 1930. Neither upon the facts alleged nor upon those found could this court say that the petitioners had lost their right to maintain the suit by reason of loches.
The question whether Bridget Hurley was fully advised by counsel respecting her rights when she signed the waiver was for the trial judge to decide.
For reasons sufficiently stated the order overruling the demurrer was right.
We find no error in any of the rulings or refusals to rule and we cannot say that the findings of the trial judge were clearly wrong. Upon those findings Bridget Hurley did not have sufficient mental capacity to waive the provisions of her husband’s will.
Decree affirmed.