DISSENTING OPINION
By SKEEL, PJ.This appeal comes to this Court on questions of law from a final order of the Probate Court overruling appellant’s motion for leave to file a claim against the Estate of Hazel M. Gogan, deceased. The appellant was the husband of the deceased.
Prior to her death, the appellant and the deceased entered into a separation agreement, whereby the appellant agreed to pay the deceased certain monies, the debt to be evidenced by notes and secured by collateral. By the agreement, the amount payable was contingent upon the life of Hazel M. Gogan.
The deceased died July 17, 1950. The appellant was pharged with murder in the first degree as a result of her death. He was confined in County Jail on such charge from July 17, 1950 until his acquittal on January 23, 1951.
The Probate Court appointed William C. Blaekmore, Administrator of the estate of Hazel M. Gogan on July 21, 1950 and later, to-wit on August 17, 1950, he was appointed administrator with the will annexed. The appellant was, by the will, named as executor as well as beneficiary. While in the County Jail, to-wit, on August 5, 1950, the appellant executed and caused to be filed in Probate Court on August 17, 1950, a declination to act as executor and renounced any right or claim to the estate, either under the will or by statute and reaffirmed paragraphs 7, 8 and 9 of the separation agreement, which provisions waived any right or claim to any part of the estate of Hazel M. Gogan.
*73After his acquittal, the appellant on February 24, 1951, filed a petition for authority to present claims against the estate of Hazel M. Gogan. The claims set out in the petition were three in number:
1. The return of two life insurance policies or endowment agreements with The Sun Life Assurance Company of Canada which had been deposited with the deceased as in part required by the separation agreement.
2. The return of certain promissory notes claimed to have been cancelled by the provisions of the separation agreement as a result of the death of Hazel M. Gogan.
3. The return of three pictures claimed to be the property of the appellant.
As to the first of these claims, the petition alleges that the administrator has collected the entire surrender value of the policies amounting to the approximate sum of $71,-000.00, although a part of the debt for which the policies were assigned to secure was cancelled under the terms of the separation agreement by the death of Hazel M. Gogan. There are, therefore, allegations in the petition, which if true, could not be reached by filing a claim against the estate.
Upon trial, the appellant in effect explained his failure to file his claim within the time prescribed by §10509-112 GC (four months) because he was under disability as defined by §10512-2 GC. That is, that being in the county jail awaiting trial for murder which under the circumstances was not a bailable offense, he was “in captivity.”
There was some evidence before the trial court and that court in its opinion commented upon the fact that the appellant did have access to the outside world through counsel and friends and could have filed such claim, knowing the administrator had been appointed, but did not do so because of the supposed detrimental effect it would have in the trial of the murder case. He, therefore, knowingly failed to file his claim.
The statute (§10509-134 GC) giving authority to the Probate Court to permit a claimant to file a claim with the administrator of an estate after expiration of the four months period from the date of his appointment, is permissive only and gives the court broad discretionary powers. It provides in part that:
“if * * * the claimant was subject to any legal disability enuring such period or any part thereof, then the court may authorize such claimant to present his claim •* *
The right to file such claim rests within the sound discretion of the court. While the right to have alleged claims *74judicially determined should transcend all other considerations, no matter what the surrounding circumstances may be, especially where no one’s rights have been prejudiced by the delay, the only grounds upon which a reviewing court can reverse an order refusing the right to file a claim, is by holding that such refusal constituted an abuse of discretion. Under all the circumstances of this case, there is no such showing. The order should, therefore, be affirmed.