JOHN N. BUNNELL v. CHARLES F. HIXON, executor & others.

PETITION , filed in the Probate Court for the County of Worcester on August 17, 1909, by the conservator of the property of John N. Bunnell, for and in the name of said Bunnell who was the husband of Harriet S. Bunnell, who died testate on June 11, 1908, and whose will was allowed on June 30, 1908, alleging that the petitioner had waived the provisions of the will of his late wife as permitted by statute, and that there was a balance of the estate of his late wife in the hands of the executor of her will, and praying that a partial distribution of such balance might be decreed to be made among such persons as might be entitled thereto.

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The following stipulation was signed by the respective counsel for the petitioner and the executor and was filed in the Probate Court:

"In the matter of the above named petition, it is stipulated and agreed as follows:

"1. That a partial distribution of the personal property of said estate can be now made without detriment thereto, and without endangering the rights of any creditors;

"2. That the only question raised is whether or not the petitioner, John N. Bunnell, is entitled to any interest or share in his wife's estate, he having signed his written consent to her will at the time of its execution, although he has duly waived any provisions that had been made in said will for him, and claimed such portion of her estate as he would have taken if she had died intestate, as is provided in R. L. c. 135, § 16;

"3. That if it shall be found that having filed said waiver and claim, he is entitled to the portion of her estate provided in said section, the court may order a partial distribution to be made of $5,000 on account of the distributive share of said John N. Bunnell in said estate."

The will of Harriet S. Bunnell was executed on October 30, 1901. It contained no devise or legacy to her husband or for his benefit. At the end of the will was written the consent of her husband, signed by him, and attested by the same three witnesses who attested the signature of the testatrix. This consent was as follows: "I John N. Bunnell husband of Harriet S. Bunnell hereby consent to the foregoing will."

In the Probate Court Forbes, J., made a decree that there should be a partial distribution as prayed for in the petition and that the executor of the will of Harriet S. Bunnell should pay to John N. Bunnell, her husband, the sum of $5,000. The executor of the will of Harriet S. Bunnell and other respondents interested in her estate as heirs at law and beneficiaries under her will appealed from the decree.

The appeal was heard in the Supreme Judicial Court by Loring, J., who made a final decree affirming the decree of the Probate Court and remanding the case to the Probate Court for further proceedings. The respondents appealed.

The case was submitted on briefs.

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J. E. Sullivan & D. F. O'Connell, for the respondents.

W. Williams & S. D. Vincent, for the petitioner.

Braley, J. By the common law, unless acting under a power of appointment, a married woman could not make a valid will devising real property, although with her husband's assent she could make a bequest of her personal estate to strangers. Nolin v. Pearson, 191 Mass. 283, 284. The St. of 1842, c. 74, however, modified the common law, enabling her, if the written consent of her husband was indorsed thereon, to make a testamentary disposition of any property held in her own right, "provided, that the rights and interests of the husband to and in any such property shall in no way be affected thereby," but gave to her the power of revocation which she could exercise at her pleasure. But a majority of the court having held in Morse v. Thompson, 4 Cush. 562, that under the statute she could not devise her real estate to him, the St. of 1850, c. 200, was passed, permitting married women to devise and bequeath their separate estates to their husbands. The St. of 1855, c. 304, § 5, and St. of 1857, c. 249, § 4, followed, which further enlarged the right, until by the Gen. Sts. c. 108, § 9, she could make a will as if sole, but unless her husband consented in writing, the testatrix could not deprive him of more than one half of her personal estate. The Pub. Sts. c. 147, § 6, while re-enacting this provision, enlarged the limitation by preserving the rights of the husband as tenant by the curtesy. In pursuance of a public policy which has constantly tended to abrogate the doctrine of the unity in person of husband and wife, the Sts. of 1884, c. 301, 1885, c. 255, and 1887, c. 290, were enacted, which materially amended Pub. Sts. c. 147, § 6, by conferring upon a married woman the power, after a decree had been entered that she had been deserted by her husband, or was living apart from him for justifiable cause, to dispose by will of all her property with the same effect as if unmarried. The amendatory acts, however, increased the husband's rights by providing that if no issue were born of the marriage, he should hold for life, "the use of one half of her real estate," or her real estate not exceeding $5,000 in value, where no issue survived her. The Sts. of 1899, c. 479, and of 1900, c. 450, revising the laws relating to the distribution of the estates of deceased persons, and the rights

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therein of surviving husbands and widows, and repealing Pub. Sts. c. 147, § 6, as amended, never became operative. The period when the second statute, which repealed the first statute while re-enacting its provisions, was to become effective had not expired on December 31, 1901, [Note p471-1] from and after which the Revised Laws took effect and expressly repealed the act. St. 1901, c. 461. R. L. c. 226, § 1; c. 227. Shelton v. Sears, 187 Mass. 455.

In accordance with the statutes then in force, the testatrix on October 30, 1901, executed, and published her will disposing of both real and personal property, to which her husband gave his written consent indorsed upon the instrument. No children appear to have been born of the marriage, and by its provisions he is deprived of any share in the distribution of his wife's estate. But at the death of the testatrix on June 11, 1908, a further and radical change had been wrought in the rights of a surviving husband in the property of a deceased wife where she died testate. By R. L. c. 135, § 1, a married woman, if of full age and sound mind, can make a will with the same effect as if the marital relation did not exist, and by § 16, where no decree in her favor for separation has been entered under R. L. c. 153, § 36, the surviving husband within one year after probate may waive the will and claim such portions of the estate as he would have taken if she had died intestate. The legislative purpose was to confer upon the surviving husband, not only a new, but an equal right with the surviving widow, to waive the will of the deceased spouse and participate in the distribution of the estate as a statutory heir. The validity of the will of the testatrix was not dependent upon the husband's consent, but his act was only a waiver of his statutory rights as they then existed. Kelley v. Snow, 185 Mass. 288, 302. Before the will took effect the statute was repealed, and under R. L. c. 140, § 3, cl. 3, he became entitled, if she died

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intestate, to a much larger interest in her real and personal property. It therefore was not within her testamentary power at the time of her decease to deprive him of the right by proper proceedings to claim and receive the same share or interest which he would have taken upon intestacy. R. L. c. 135, §§ 4, 16. Burroughs v. Nutting, 105 Mass. 228. Johnson v. Williams, 152 Mass. 414.

Decree of the Probate Court affirmed.