The St. of 1861, c. 164, provides that the widow of a testator “ may, at any time within six months after the probate of the will, file in the probate office, in writing, her waiver of the provisions made for her in the will; and shall in such case be entitled to such portion of his real and personal estate as she would have been entitled to if her husband bad died intestate.” “ If she makes no such waiver, she shall not be endowed of his lands, unless it plainly appears,” &c.
In this case the widow did file what was unquestionably intended to be a waiver of the provisions of the will of her husband. We do not consider the misrecital of the fact as to the probate of the will to be of any consequence. But the waiver was filed, and the widow herself died, before the will was in fact admitted to probate. So that, if she did not make a good waiver in her lifetime, none could afterwards be made for her by her representatives. Sherman v. Newton, 6 Gray, 307.
The important question in the case is upon the interpretation of the phrase “ within six months after the probate of the will.” Is the reference to the probate of the will for the purpose of fix ing merely the terminus ad quern ? or does it also fix the termi nus a quo ? The main purpose undoubtedly is to fix a time *45when her right of election shall cease, and the presumption of the statute become absolute. But the words used, in strictness, would seem also to limit the right in the other direction, and confine it to the specified period subsequent to the actual probate of the will. If the provision related only to the right of the widow to claim her distributive share of the personal estate, regardless of the will, we should be disposed to give it this narrower construction. There is much force in the argument of the counsel for the appellant in favor of thus limiting the right of the widow to disturb the provisions of the will in respect of the personal estate.
But the same provision applies indiscriminately to her right of dower as well as to her right to a share of the personal estate. The interpretation, therefore, which we are to adopt, must be one which is consistent with the rights of the widow and the rules of law relating to dower. .
Dower is an estate or interest in the lands of her husband with which the common law invests the wife, by virtue of their mutual relations. As widow, she takes it by operation of law, unless barred in some mode recognized by law. This right is confirmed by statute. Gen. Sts. c. 90, § 1. Such being the case, it is not to be supposed that it was the intention of the legislature to so change the law as to make the right dependent upon the filing of any paper in the probate office. The right is complete from the death of the testator, and may be enjoyed and enforced forthwith. It is argued that practically this is not so, because, until the will is proved, it cannot be known from whom, as tenant of the freehold, the dower is to be demanded. But this difficulty affects only the remedy; and even in that respect it does not apply to the whole right, for her dower is not limited to lands of which the husband died seised. We cannot hold that the statute deprives the widow of her right altogether until, by the termination of all controversies respecting the allowance of the will, (in which she may take no part, and over which she may have no control,) she is enabled, “ after the probate of the will,” to file her waiver of its provisions. Her right of dower is not acquired by her waiver of the will; but her *46acceptance of the provisions of the will operates to bar her dower. By permitting the will to stand for six months after its probate, without any declaration of purpose to reject its provisions in her favor, she is taken to have accepted those provisions; and thus to have barred her right to have dower. The statute fixes the time when this presumption of acceptance shall become absolute; and the mode in which it may be met, and the right of dower preserved. So far as the right of dower is concerned, this is clearly the whole scope and intent of the statute; and to construe the phrase quoted as fixing a time before which the widow could not elect to exercise her right would be plainly inconsistent with the nature of the right, and with the well settled rules of law by which it is governed.
This view is confirmed by the history of the law upon the subject. At common law the right of dower was not affected by a devise or bequest to the widow, unless it plainly appeared by the will to be intended in lieu of dower. By St. 1783, c. 24, § 8, it was provided that “ the widow, in all cases, may waive the provision made for her in the will of her deceased husband, and claim her dower and have the same assigned her.” Under this statute it was held that the waiver must be made in a reasonable time, or she would be presumed to have accepted the provisions of the will and thus waived her right to have dower assigned. Reed v. Dickerman, 12 Pick. 146. The provision in the Rev. Sts. c. 60, § 11, is as follows: “ If any provision be .node for a widow in the will of her husband, she shall, within six months after 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,” &c. In Pratt v. Felton, 4 Cush. 174, it was held that the neglect of the widow to waive the provisions of the will was conclusive evidence of her election to accept them, and a waiver of her right af dower. The right of the widow, upon waiving the provisions of the will, to claim the same portion of the personal estate “ as she would have been entitled to if her husband had died intestate,” was introduced into the law by the St. of 1854, c. 428. The evidence of such waiver is required by the Gen *47Sts. c. 92, § 24, to be in writing, filed in the probate office. That statute also provides that, “ If she makes no such waiver, she shall, not be endowed of his lands, unless it plainly appears,” &c. The change by the St. of 1861, c. 164, is merely to limit the quantity of interest which the widow may take in the personal estate, in .case of her waiving the will.
The effect of the waiver, since the St. of 1854, is to give to the widow a new and additional right, in respect to which a strict construction might be required, if it stood alone. But the phraseology relating to the time for exercising the right of waiver is substantiafiy the same in that and in the subsequent statutes as in the Revised Statutes. We think the construction must be the same now as if the right of dower only were affected by the exercise or failure to exercise the right of waiver; and, in that view, that the right may be exercised at any time after the decease of the testator and before the expiration of six months after the probate of the will. To such a waiver the St. of 1854 attached an additional result; but the character of the act and the conditions upon which it may be legally performed are in no respect changed.
The result is, in this case, that the right of waiver was properly and seasonably exercised, and the representatives of the widow are entitled to her distributive share of the personal estate, under the statute. Having waived the provisions of the will, her rights are the, same as if her husband had died intestate, subject however to the limitations imposed by the St. of 1861. Her interest in the personal estate was therefore such a vested right as would pass to her representatives.
A question is made that the decree was premature, inasmuch as there were debts outstanding against the estate, and two years from the date of letters testamentary had not then expired. It is undoubtedly within the power oí the court of probate to order distribution within the two years, taking care to protect the executor or administrator by bonds, if there is any reason to apprehend that other liabilities may exist. Gen. Sts. c. 97, § 21. We do not doubt that the court may, in like manner, order the payment to the widow of her limited portion of the estate, *48without waiting until a final distribution can be made, provided it is made clearly to appear that the surplus, after covering all probable liabilities, will be more than sufficient to entitle her to that amount. This is apparently what was done in the present case. Upon the hearing in this court, which was after the expiration of two years from the probate of the will and letters testamentary, it did not appear that there were any liabilities which could, in any event, reduce the surplus so that the widow would not be entitled to her full share of ten thousand dollars.
Upon this reservation, the question whether the waiver was filed by her authority is not open.
The question of interest is settled by the case of Sullings v. Richmond, 13 Allen, 277. The widow is entitled to receive the sum of ten thousand dollars at the time when an effectual order for its payment shall have been made.
The decree of the probate court ordering that amount to be paid to her representatives is now Affirmed.