PEARL G. HANCHETT vs. FRED R. HILL.

DOLAN, J. This is an appeal from a decree entered in the Probate Court that a waiver of the will of Emma F. Hill filed by the respondent, her husband, was null and void and of no effect.

The case was heard by the judge upon statements of counsel as to which there was no controversy, in effect upon agreed facts (Dwyer v. Dwyer, 239 Mass. 188, 190), which the judge set forth in a report of material facts. They may be summed up as follows: Emma F. Hill died on October 5, 1942, leaving a husband, the respondent. Her will was duly allowed on October 29, 1942, and the executor therein named, Warren W. Fox, was duly appointed and qualified. The testatrix devised and bequeathed all the income from her estate to the respondent so long as he should live, with the privilege, after his own property had been exhausted in his support, of using so much of the principal of the estate of the testatrix "as he needs for his comfortable support and maintenance in sickness and in health," providing further that any portion of her estate not used was to go to her niece Pearl G. Hanchett, of Lowell, who is the petitioner. On November 5, 1942, the respondent, being of sound mind, filed in the probate registry a writing purporting to waive the provisions made for him in the will of his wife, the testatrix, and to claim such portion of her estate as he would have taken had she died intestate. Prior thereto by a decree of the Probate Court dated March 12, 1942, a conservator of the property of the respondent was appointed and qualified, and has served continuously since. That decree was entered upon the respondent's own petition on the ground of inability "to properly care for his property" by reason of advanced age only. See G. L. (Ter. Ed.) c. 201, Section 16. He was then about eighty-three years of age, and was confined to a hospital because he was seriously ill with pneumonia. He was without money to pay his expenses, and it became necessary for him to obtain funds from the sale or mortgage

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of his real estate or from some other source. Being mentally competent, he petitioned for the appointment of the conservator and a decree was entered as above set forth. The judge found that the waiver of the will was null and void and of no force and effect, and entered the decree in question.

It is the contention of the petitioner, relying upon G. L. (Ter. Ed.) c. 201, Section 45, that the waiver was void because it was not filed by the conservator of the respondent. Section 45 so far as here material provides as follows: "If property, rights or benefits given by will or by law depend upon the election, waiver or other act of a person incompetent by reason of insanity or minority to perform the same, his guardian may make such election or waiver or perform such act; provided, that no waiver of the provisions of a will under this section shall be valid until approved by the probate court after notice to such persons, if any, as the court shall deem proper and a hearing thereon . . .." Section 20 of c. 201 provides as follows: "A conservator shall have the same powers and duties, except as to the custody of the person, as a guardian of an insane person; and all laws relative to the jurisdiction of the probate court over the estate of a person under guardianship as an insane person, including the management, sale or mortgage of his property and the payment of his debts, shall be applicable to the estate of a person under conservatorship." The provision of Section 45 that no waiver of a will by a guardian of a person incompetent by reason of insanity in behalf of such a person shall be valid unless approved by the Probate Court was enacted by St. 1924, c. 8. But in Dolbeare v. Bowser, 254 Mass. 57, with relation to a waiver of a will filed by a guardian of an insane person, it was held that a guardian, in deciding whether a waiver of the will should be filed by him in behalf of his ward, must exclude from consideration all thought of eventual interests and consider only the immediate interest of the ward, and that if the "guardian does any act in his official capacity solely with a view to increasing the size of the estate which either he, members of his family, or others will inherit from the ward upon his death," and does not

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act solely for the benefit of the ward, a court of equity may declare the waiver to be null and void (pages 61, 62).

The obvious reason for the amendment requiring the approval of the Probate Court of the waiver of a will, sought to be exercised by the guardian of a person incompetent by reason of insanity or minority to exercise the right of waiver in his own behalf, was to determine, at the time the approval of the waiver is sought, its validity, that is, whether it is for the benefit of the ward alone and for his best interests, and to avoid future litigation over the subject matter. See Dolbeare v. Bowser, 254 Mass. 57.

This brings us to the question whether by virtue of the provisions of Section 20, hereinbefore set forth, Section 45 applies in a case, such as the present, where the inability of a ward under conservatorship to care for his own property arises solely from advanced age and the ward is of sound mind.

General Laws (Ter. Ed.) c. 201, Section 16, provides for the appointment of a conservator of the property of a person if by reason of advanced age or mental weakness he is unable to care therefor. Section 17 provides that where, as in the present case, the person for whose property the conservator is to be appointed is himself the petitioner or assents in writing to the petition no notice shall be required except to the United States veterans' bureau or its successor if such person is entitled to any benefit payable by the bureau.

When first enacted by St. 1898, c. 527, the statute authorizing the appointment of conservators related solely to persons incapacitated to care for their property by reason of advanced age, but by Section 2 of that statute it was provided that "all provisions of law relating to the management, sale or mortgage of the property of insane persons shall apply to such conservators." [Note 1] Statute 1915, c. 23, broadened these terms of St. 1898, c. 527 (see R. L. c. 145, Section 41; Jones v. Maguire, 221 Mass. 315), and provided in Section 1, "Conservators appointed under the provisions of section forty of chapter one hundred and forty-five of the Revised Laws

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and acts in amendment thereof or in addition thereto shall have the powers, and perform the duties, except as to the custody of the person, of guardians of insane persons. All provisions of law relating to the jurisdiction of the probate court over the estates of persons under guardianship as insane persons shall be applicable to the estates of persons under conservatorship." The statute has continued substantially in that form to the present. See G. L. (Ter. Ed.) c. 201, Section 20. It applies to cases where the conservatorship is based upon physical inability to care for one's property as well as to those based upon inability to do so because of mental weakness. It follows that the provisions of Section 45 relative to the waiver of wills apply in the present case notwithstanding that the respondent was of sound mind when he filed the waiver in question, and that the conservator was appointed upon the respondent's petition. Foss v. Twenty-Five Associates of Roxbury, Inc. 239 Mass. 295, 297-298. If the conservatorship of the property of the respondent at the time he filed the waiver was not necessary because of improvement in his physical condition, he had a remedy by applying for the discharge of the conservator. G. L. (Ter. Ed.) c. 201, Section 18, as amended by St. 1934, c. 204, Section 2. No such action having been taken by him, the only valid method by which a waiver of the will in question could have been executed was that required to be pursued by Section 45. No proceedings were taken thereunder.

Decree affirmed.