In re Estate of Switzer

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 91-242

                           SEPTEMBER TERM, 1991


In re Estate of                   }          APPEALED FROM:
Laverne B. Switzer                }
                                  }
                                  }          Windham Superior Court
                                  }
                                  }
                                  }
                                  }          DOCKET NO. S051-90Wnc


             In the above entitled cause the Clerk will enter:

      Executrix of estate appeals from a superior court decision, affirming
a probate court ruling that allowed testator's wife to elect statutory
homestead and personal property rights, while at the same time claiming an
interest in decedent's real estate under his will.  We reverse and remand
for further proceedings in accordance with this opinion.

     Decedent died in 1987 and was survived by his wife of two years and
five children from his first marriage.  After allowance of the will by the
Marlboro District Probate Court, the surviving spouse filed a notice with
that court requesting that court to set out the homestead pursuant to 27
V.S.A. { 105, waiving the provisions of the will in order to claim a share
of decedent's real estate, pursuant to 14 V.S.A. { 461, and waiving the will
provisions in order to claim a share of the decedent's personal estate,
pursuant to 14 V.S.A. { 402.

     The probate court denied her election under { 461 with respect to the
real property but granted the election under { 402.  The court also allowed
the surviving spouse to claim under Article Fourth of the will, which
bequeathed her a one-sixth share in the decedent's residual estate, which
consisted largely of real estate.  The executrix, a daughter of decedent,
appealed to the superior court, which affirmed the probate court's decision,
concluding that a surviving spouse who elects to waive the provisions of a
will is not automatically barred from taking under the will.  The present
appeal followed.

     This Court has held that a surviving spouse may, in an appropriate
case, take both a legacy under the will and a statutory right, unless it
clearly appears that such election was not intended by the testator.
Phillips v. Northfield Trust Co., 107 Vt. 243, 247 (1935).  At issue in the
present case is the effect of the following language in the will, which was
executed prior to decedent's marriage to his surviving spouse:

          SEVENTH:  The provisions in this Will made for my wife
          to be, Andrea M. Duffy, are intended to be in lieu of
          any statutory dower or other rights which she may have
          in my estate.  (Emphasis in original).

That language clearly and unequivocally expresses the testator's intent to
bar his wife from both claiming a legacy under the will and asserting the
right to personalty under 14 V.S.A. { 402.  The surviving spouse argues that
the phrase "or other rights" cannot logically refer to statutory personalty
or homestead rights, since these rights cannot be barred by a provision of
the will.  But the issue is not whether they can be barred by the will, but
whether the testator can, by clear and unequivocal language, compel his
surviving spouse to elect between rights under statute that he cannot bar,
or legacies under the will.  This testator has expressed his intention with
clarity, and that intention must be honored.

     While the decision of the superior court must be reversed, we
acknowledge that the surviving spouse, having made her initial elections,
may wish to reassess her position, and in fairness and equity ought to be
able to do so.  We therefore direct that the court conduct further
proceedings to allow the surviving spouse to reconsider her statutory
elections in light of this opinion.  The time within which to make such
elections within the meaning of V.R.P.P. 13(b) shall be deemed extended, and
the superior courts shall in such proceedings set a reasonable time certain
within which the elections shall be made.

     The decision of the superior court is reversed and the matter remanded
for further proceedings in accordance with this opinion.







                                   BY THE COURT:


                                   _______________________________________
                                   Frederic W. Allen, Chief Justice


                                   _______________________________________
                                   Ernest W. Gibson III, Associate Justice


                                   _______________________________________
                                   James L. Morse, Associate Justice
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