Conservator. Waiver. Election. Guardian. Husband and Wife. The right of a surviving husband under R.L.c. 135, § 16, to elect whether he will accept or waive the provisions made for him in the will of his deceased wife, is a personal privilege and not a property right, and therefore before the enactment of St. 1915, c. 23, could not be exercised by the conservator of the property of an insane surviving husband appointed under R.L.c. 145, § 40, as amended before 1915, although by R.L.c. 145, § 33, a guardian of an insane person is given such a power.
BRALEY, J.
By the R.L.c. 145, § 33, "If property, rights or benefits given by will or by provision of law depend upon the election, waiver or other act of a person incompetent by reason of insanity or minority to exercise or perform the same, his guardian may make such election or waiver or perform such acts."
But the petitioner, who had been appointed only as a conservator, was not clothed with this authority when the right of his insane ward to elect under R.L.c. 135, § 16, whether he would accept or waive the provisions made for him in the will of his deceased wife, accrued. R.L.c. 145, § 40, as amended by Sts. 1903, c. 96; 1905, c. 127; 1907, c. 169, § 3. Chase v. Chase, 216 Mass. 394. See St. 1915, c. 23.
While charged with the entire management of his ward's estate, the right of election or waiver is not a property right. It is purely a personal privilege, the exercise of which rested in the discretion of the surviving spouse, although by reason of insanity he was legally incapable of the power of choice. Sherman v. Newton, 6 Gray, 307. Pinkerton v. Sargent, 102 Mass. 568, 570. Kent v. Morrison, 153 Mass. 137, 140.
The decree of the court of probate dismissing the petition should be affirmed.
Ordered accordingly.