Pratt v. Felton

Wilde, J.

This is a writ of dower, in which the only question to be decided is, whether the demandant’s claim is not barred by her acceptance of the provision made for her by the will of her husband in lieu of dower. The provision in the will is not expressly declared to be in lieu of dower but this, by the Rev. Sts. c. 60, § 11, is not required. By that section, it is provided, that “ If any provision be made for a widow in the will of her husband, she shall, within six months after the probate of the will, make her election, whether she will take such provision, or be endowed of his lands; but she shall not be entitled to both, unless it plainly appears, by the will, to have been the intention of the testator, that she should have such provision, in addition to her dower.” No such election was made, in the present case, by the demandant; and this omission we consider as conclusive evidence of her acceptance of the provision made in the will, and a waiver of her right of dower; for by the express words of the statute, she is not entitled to both; there being nothing in the language of the will, by which it can be inferred, that the testator intended she should have the provision in addition to her dower. 1 Cruise, (Greenl. ed.) 181, note 1; Thompson v. Mc Gaw, 1 Met. 66; Adams v. Adams, 5 Met. 277.

But it has been argued for the demandant, that although she has made no express election, yet her demand of dower was an implied election. We are of opinion, however, that the facts agreed will not warrant the implication, for soon after her demand of dower, she leased the home place which was devised to her in fee, and which the lessee still occupies. The inference from these facts is, that it was the demand-ant’s intention to accept the provision made in the will, and to claim also her right of dower. This certainly is no evidence of an election as required by the statute. Whether any implied election would be such as the statute requires, or whether an express election should be filed in the probate office, are questions not necessary to be decided in this case; as the demandant’s election cannot be inferred from the facts agreed, if an implied election would be sufficient.

Judgment for the tenant.