There is no doubt, and the plaintiff concedes, that under the will of George W. Goodrich, his wife, Susie J. Goodrich, would be entitled to the possession of the real estate described in the plaintiff's writ of entry against her, if she had not waived the provisions of his will in her favor. The question, therefore, for consideration is whether the action of the probate court, allowing her to withdraw the waiver and release, and ordering it canceled, can be sustained. If it can, the defendant is entitled to the possession of the real estate in controversy, and the plaintiff's suit fails.
The authority of courts to vacate, modify or amend their judgments for sufficient cause, has been upheld many times in this state. "As a general proposition, courts have power to set aside, vacate, modify, or amend their judgments for good cause shown." Adams v. Adams, 51 N.H. 388, 396; Judge of Probate v. Webster, 46 N.H. 518; Clough v. Moore, 63 N.H. 111; Moore v. Carpenter, 63 N.H. 65. This power is possessed by the probate *Page 217 courts, as well as by courts of general jurisdiction. Knight v. Hollings,73 N.H. 495, 502; Hood v. Montgomery, 73 N.H. 405; Reed v. Prescott,70 N.H. 88; McDermott v. Hayes, 60 N.H. 9; Ayer v. Messer, 59 N.H. 279. In the absence of prejudice to the rights of third parties, the probate court, for good cause shown, had authority to allow the defendant to withdraw her waiver and release, and to order it canceled. Whether sufficient cause was shown for the action of the court is a question of fact. Melvin v. Melvin,73 N.H. 602; Fulton Pulley Co. v. Company, 71 N.H. 384; Warner Bank v. Company, 58 N.H. 533.
The decisions give the judge of probate greater power than he was called upon to exercise in this case, for his act to the annulment of which objection is made, was not a judgment nor decree, but was simply an order that the waiver and release be filed in the probate office of the county. The only questions that could have come before the court in making this order were whether the waiver and release was in proper form, and seasonably filed. These facts are not questioned, and permitting the order to be withdrawn does not controvert either. The contention of the plaintiff that the court did not have authority to order the cancelation of the record of the waiver and release in the registry of deeds is of no consequence. The object of the record required by the statute (P. S., c. 195, s. 14) is to give notice. The plaintiff has notice, and so far as the present proceedings are concerned it is immaterial whether the record is or is not canceled.
The plaintiff's reason for appeal, that the defendant having made her election is bound by it, presents no question of law. She is not bound by her election, if the court's decision relieving her from it is based upon a good and sufficient reason. And this, as already pointed out, is a question of fact.
Relative to the plaintiff's suit against Randall, it is admitted by the plaintiff that the defendant under a deed from George W. Goodrich has a good title to the standing growth on the Chase farm.
The question of the proper disposition of the proceeds of Randall's note, if and when paid, is not really raised by these suits. But as some question relating thereto may arise, it is, perhaps, advisable to consider it briefly. The note should be paid to Susie J. Goodrich, the administratrix, with will annexed of George W. Goodrich. The provision in his will for his wife is as follows: "My wife, Susie J. Goodrich, is to have possession and right to use all income and profit [referring to his property] and if from any disaster or inability from sickness to use up the whole to her own help and comfort as *Page 218 need be." Consequently, upon the settlement of her account as administratrix, the proceeds of the note as well as any other funds or property then in her hands or belonging to the estate of her husband, except some items of personal property specifically bequeathed or provided for in his will, will go to her. She will be entitled to use the income therefrom for her own purposes during her life, and she can sell any or all of the property and use any or all the proceeds therefrom if, by reason of sickness or other misfortune, she needs it for her comfort and support.
As the conclusions reached relative to the withdrawal of the waiver and release and the admission of the plaintiff that the defendant, Randall, has title to the standing growth, dispose of these suits, a further construction of the wills is not required.
In the first suit, case discharged: in the second, judgment for the defendant.
All concurred.