Estate of Howe

DORAN, J.

This is an appeal from an order granting a family allowance and homestead in probate proceedings.

The record reveals the following as correctly recited in appellant’s brief:

“In January, 1946 the Court made an Order granting Mrs. Myra Howe, the widow of decedent a family allowance of $400.00 per month. Appellant, who is one of the legatees of the estate opposed the granting of this allowance but at the time of such opposition he had no knowledge of the existence of the pre-nuptial contract which only came to light sometime later, when he immediately took steps to obtain the cancellation of the Order granting the family allowance and repayment of the moneys paid under the Order. In March, 1946 the said widow Myra B. Howe petitioned the Court for a probate homestead and appellant opposed the granting of the probate homestead on the ground that she had waived her right thereto in the pre-nuptial agreement.

“These two matters came on for trial before the Court at the same time and after hearing the evidence of Mrs. Myra Howe, who was the only witness, the Court granted the probate homestead and denied the Petition for Termination of the Family Allowance and re-payment of the moneys paid under the Order of January 17th, 1946.”

[97]

The pertinent portion of the prenuptial agreement is as follows:

“That neither party shall at any time claim any interest in the separate property of the other, except that in the event of the death of either party hereto, the survivor shall be entitled to any devises or bequests, if any, in favor of such survivor made in the Last Will and Testament of the said deceased party. And this agreement shall in no wise be construed as a waiver of the right of either party hereto in or to any provision in favor of the survivor as to any devise or bequest made in such Will of such deceased one in favor of the other.”

In deciding in favor of respondent, the court commented as follows at the conclusion of the trial:

“There was only one question presented to the Court. That is whether or not there was a waiver, which is not free from difficulty. It is the policy of the law, as we all lmow, that a family allowance and setting apart of homestead are looked upon with favor under the law. A waiver of that right must appear in clear language. Because of those two rules I am constrained to believe that the agreement presented here does not waive that right.