The effect of, the waiver of the provisions of the will of Henry Plympton by his widow was, to entitle her to such portion of his real and persona] estate as would have passed to her if her husband had died intestate, subject, how ever, to the limitation fixed by a recent statute, that she can receive the income only of the excess of her share of his personal estate above the sum of ten thousand dollars, during her natural life. St. 1861, c. 164. The renunciation by the widow of the provisions of the will does in the present case, as it must in most cases, materially affect other legatees, by reducing the amount of assets to be disposed of by the testator, and to some extent defeats the particular disposition of his property designed by the testator. This result is, however, to be avoided as far as practicable, and the bequests to the other legatees are to have full effect, so far as any estate remains from which they may be paid. Firth v. Denny, 2 Allen, 468.
In computing the amount of personal estate of which the widow is entitled to a distributive share, it is to be taken as if the husband had died intestate. Of course no diminution can arise from any legacies or gifts contained in the will. Hence the promissory notes of Edward A. Pierce and Charles H. P. Plympton, held by the testator, are to be regarded as assets of his estate, in setting apart to the widow her distributive share.
The personal property, for the purpose of ascertaining the portion of the widow, is to be estimated at its value at the time of the distribution or assignment to the widow of her share.
Under the 2d article of the 5th clause of the will, the "minor children, Susannah Ruggles Plympton and Mary Louise Plympton, who were made joint legatees with their mother of three *182fourths of the net income of the residue of the estate, after the payment of other legacies provided for, take the whole of said three fourths net income as cestuis que trust, the income to be paid to them in the mode indicated by the provisions of the will. By this legacy, the persons who are to take are to take jointly and collectively. The waiver by the wife of her interest therein defeated her right as one of the joint legatees to the benefit of this legacy. But it did not impair the rights of the other joint legatees, but, on the contrary, the effect was to leave them as the recipients of the entire sum given by the testator under this clause of the will.
At the death of the widow, or on her ceasing to be such widow, the three fourths of the net income above referred to, as also the amount of property over ten thousand dollars of which she had the income as a part of her distributive share, are to be disposed of agreeably to the provisions of the 4th article of the 5th clause of the will.
The provision of the 6th article of the 5th clause, “ but while my wife lives or remains my widow, no change in any investment to be made without her consent,” is not abrogated by the waiver of the widow of her personal rights under the will. This provision may be supposed to have been made for the benefit of the minor children, as well as his wife. The testator having so directed, and the same not being a personal benefit to be defeated by her waiver of the will as to any provisions for her use and benefit, this clause must be deemed to be still operative.