Allen v. Allen, 117 Mass. 27

Allen v. Allen

117 Mass. 27 | Mass. | 1875

Gray, C. J.

It is well settled in this Commonwealth that the allowance to be made by the Probate Court to a widow out of the estate of her husband is to be limited to what is reasonably necessary for her support for a moderate period after his death. Rev. Sts. c. 65, § 4, and note of commissioners. Gen. Sts. e. 96, § 5. Adams v. Adams, 10 Met. 170. Drew v. Gordon, 13 Allen, 120. But there is nothing to show that this rule was transcended in the present case. There is no evidence as to the time of the filing of the widow’s application, or the cause of the delay of the action of the Probate Court thereon. And nothing appears, upon the report before us, as to the age or state of health of the widow *29or the mode of life to which she had been accustomed — all of which, as well as the amount of property of her husband and of herself, and the question whether she has children dependent upon her, are to be taken into consideration in determining the amount of her allowance. Washburn v. Washburn, 10 Pick. 374. Hale v. Hale, 1 Gray, 518. Hollenbeck v. Pixley, 3 Gray, 521.

The fact that the administrator, without any requirement or authority of law, paid some of the widow’s expenses, and advanced her some money out of the estate, for both of which he may hold her to account hereafter, does not defeat or affect her right to an allowance under the statute.

In Washburn v. Washburn, 10 Pick. 374, it was said that “ the court of appellate jurisdiction is to revise the case upon the evidence produced, uninfluenced by the decision of the court below.” But in that case the appeal from the judge of probate was heard by the full court; the only appeal then known to our statutes (except from the Probate Court) was at common law, opening the whole case, both in law and in fact; St. 1820, c. 79, § 4; Rev. Sts. c. 82, § 6 ; Commonwealth v. Richards, 17 Pick. 295; and the decision of a single justice of this court upon a probate appeal was not subject to further appeal in matter of fact. Higbee v. Bacon, 11 Pick. 423. Under the existing statutes, no appeal is permitted in actions at law, except for matter of law apparent on the record; St. 1840, c. 87, §§ 4, 5; Gen. Sts. e. 114, § 10; and the decision of a single justice of this court in a probate cause is put upon the same footing as in a suit in equity, and while it is made subject to appeal in all matters of fact as well as of law, is not to be reversed upon a question of fact unless clearly shown to be erroneous. Gen. Sts. c. 113, §§ 8, 10, 14, 21; c. 117, § 14. Wright v. Wright, 13 Allen, 207. Mason v. Lewis, 115 Mass. 334. Reed v. Reed, 114 Mass.

It may also be observed that the whole estate is larger, and the amount finally allowed to the widow less, in this case than in that of Washburn v. Washburn.

The widow having prevailed upon two successive appeals against a decree granting her an allowance, the decree of the justice of this court, affirming the decree of the Court of Probate, should be Affirmed, with costs.