Opinion
No. 3968.
Decided December 5, 1950.
The right of a widow to waive the provisions of her husband's will in her favor is personal and does not survive her.
BILL IN EQUITY for instructions, and petition for declaratory judgment, filed January 16, 1950. This concerns the same estate, namely, that of John J. Hogan, late of Nashua, that was considered in Hogan, Ex'r v. Roche, G'd'n, 95 N.H. 368. The plaintiff is the administratrix of the estate of and an heir at law of Ellen M. Hogan, who died on June 5, 1949, widow of said John J. Hogan, who died September 19, 1947. The defendant, Robert C. Laing, was appointed guardian of said widow on May 13, 1949, she having been decreed to be mentally incompetent on October 17, 1947. The other defendant, John T. Hogan, is executor of and trustee under the will of said John J. Hogan.
A waiver of the will of John J. Hogan and release of dower and homestead was filed on October 31, 1947, by a former guardian on behalf of the widow, Ellen M. Hogan. R. L., c. 343, s. 3, as amended by Laws 1947, c. 151, s. 3. On January 20, 1948, this instrument of waiver and release was declared null and void and cancelled by the Superior Court. This decree was affirmed in Hogan v. Roche, supra.
The following questions of law were reserved and transferred without ruling in advance of further proceedings by Leahy, J.:
"1. Has the plaintiff, individually or as administratrix, any right to assert a claim to the Estate of John J. Hogan at this time, or to assert that others have a right to file a waiver and release at this time?
"2. May a waiver of the will of John J. Hogan and a release of dower and homestead now be filed on behalf of Ellen M. Hogan?
"3. May the defendant Laing as guardian now investigate the case of his deceased ward and file such waiver and release?
"4. May the plaintiff as administratrix now investigate the case of her decedent and file such waiver and release?
"5. May the Superior Court, in the exercise of its equity powers over a person under disability, now elect to make such waiver and release for Ellen M. Hogan"?
Upton, Sanders Upton and J. Leonard KillKelley (Mr. Richard F. Upton orally), for the plaintiff.
Robert C. Laing, pro se.
Sullivan Gregg and Hamblett, Griffith Moran (Mr. Sullivan and Mr. Hamblett orally), for the defendant John T. Hogan, executor and trustee.
The questions transferred in substantial effect present the issue whether there is any legal machinery whereby provisions of the will of John J. Hogan may now be waived.
The privilege that a widow has of waiving the provisions of her deceased husband's will in her favor and so acquiring certain other property and rights in his estate is stated in R. L., c. 359, ss. 10, 11. In the case of a mentally incompetent widow the same rights that his ward would have had if competent were given to the guardian by Laws 1947, c. 151, s. 3. In Hogan v. Roche, supra, 370, it was recognized that guardian of Ellen M. Hogan, during her lifetime, by placing "himself as nearly as possible in the position of the widow and [taking] such action as she would probably take if sane" could waive the provisions of the will of John J. Hogan in her favor with the results stated in the above cited statutes. This was not done, and it must now be determined whether under the present circumstances it is too late for such waiver.
Page v. Library, 69 N.H. 575, 577, is authority in this jurisdiction for the proposition that the right of waiver "is personal and does not descend to her representatives." The decision in this case was reached in spite of the fact that the widow was unconscious from the time of her husband's death and never could make election.
Subsequent to Page v. Library, supra, chapter 6 of the Laws 1901 was enacted. This granted to the guardian of an insane person "the same right that his ward would have if sane," with respect to waiving the provisions of the will. Undoubtedly, this statutory power of a guardian is subject to the same limitation of the definition of the term "personal" that was expressed in Page v. Library, supra, concerning the power of the court sitting in equity.
Accordingly, it follows that where the waiver cannot be exercised by the widow or for her benefit, there is no authority in this state for the exercise of the waiver. This is the situation where the widow has deceased. The election given by the statutes does not survive her. This view is not inconsistent with the statement of the duty of a guardian expressed in Hogan v. Roche, supra, that what the widow would have desired should be considered.
"On the death of the party who is entitled to make an election, his heirs and personal representatives can not elect in his place. . . ." 4 Page, Wills (Lifetime ed.) 33. The author cites in support of this proposition Page v. Library, supra, and cases from thirteen other jurisdictions.
The courts generally hold "that a spouse's right to elect to take under or against the will of the deceased spouse is a personal privilege, which must be exercised by the survivor during his or her lifetime, and may not, after the death of the surviving spouse without exercising it . . ., be exercised by his or her personal representative." 85 A.L.R. 856. Although our New Hampshire case is not included, decisions from thirteen other jurisdictions are cited.
Additional authority is found in the cases of In re: Knofler Estate, 143 Ohio St. 294, decided in 1944, and Grammer v. Bourke, 117 Ind. App. 151, decided in 1946.
The questions propounded are answered by the statement that the right of a widow to waive the provisions of her husband's will does not survive her.
Case discharged.
All concurred.