155 Mass. 141 | Mass. | 1891
The decision of this case involves two questions: first, what is the true construction of the statute in regard to allowances to widows by probate courts; secondly, what is the application of that statute to the facts agreed by the parties. The language of the law relied on by the petitioner is as follows: “Such parts of the personal estate of a deceased person as the Probate Court, having regard to all the circumstances of the case, may allow as necessaries to his widow, for herself and for his family under her care, or, if there is no widow, to his minor children, not exceeding fifty dollars to any child, and also such provisions and other articles as are necessary for the reasonable sustenance of his family, and the use of his house and of the furniture therein for forty days after his death, shall not be taken as assets for the payment of debts, legacies, or charges of administration.” Pub. Sts. c. 135, § 2.
By the revision of 1835, the previous statutes on this subject were materially changed, and put in a form very similar to the law now in force. Rev. Sts. c. 65, §§ 4, 6. The intention of the revisers is expressed in a note of the Commissioners, as follows: “This allowance for necessaries is not intended to compensate the widow for any apparent injustice to which she may in any case be exposed by the statute rules of distribution, or by the will of her husband; but merely to furnish her with a reasonable maintenance for a few weeks, and with some articles of necessary furniture, when she is not otherwise provided with them. This being the ground on which the allowance is made, it is evident that it ought to be made in all cases, and without regard to the claims of creditors or kindred; it being understood at the same time that it should always be of small amount, so as not to be sensibly felt by any others- who are interested in the disposition and distribution of the estate.” Report of Commissioners, Part II. c. 65, note.
The St. of 1838, c. 145, is in harmony with the Revised Statutes as interpreted by the Commissioners, and the language as thus amended, except for the addition of a clause providing an allowance for each minor child where there is no widow, is identical with that of the General Statutes and of the Public Statutes.
In Adams v. Adams, 10 Met. 170, Chief Justice Shaw cites,
This being the true construction of the statute, it should be applied to the facts of each particular case, with a very careful
In the case at bar it appears that the estate of the deceased is insolvent; that the widow, at the time of her husband’s death, had an income of $1,200 a year from her private property; that there were never any children by the marriage; that she and her husband were not then keeping house, but she was with her father, and was intending to live with him, and that he was a man of property, who charged her nothing for board and lodging.
On these facts, it is certain that the petitioner, after her husband’s death, was not entitled to any considerable allowance to supply her immediate necessities. There is nothing in his estate that she can take under the statute of distributions, and it would be a wrong upon the creditors to take from them a part of the assets, if she were not in need of money to meet expenses immediately following his death, before she could readily adapt herself to her changed circumstances. It is not clear that she is entitled to anything. In some particulars the case is similar to Hollenbeck v. Pixley, ubi supra, in which an allowance to the widow was refused. But in view of the fact that the husband had in his possession personal property which was valued at over $163,000, although he owed a much larger sum, and that the parties were of high social standing, and apparently accustomed to a costly mode of living, we may infer that she had temporary pecuniary calls, which she could not conveniently meet, connected with her husband’s death and her change from a wife entitled to support to a widow dependent on her own resources. Giving the petitioner the benefit of the most favorable inference to be drawn from the facts agreed, we are of opinion that $500 is as large an allowance as can properly be made, and the decree of the Probate Court must be modified so as to give her that sum. Decree accordingly.
I am unable to agree with the opinion of the majority of the court. If the statute regarding allowances to widows had been enacted recently, and its construction were now before the court for the first time, it is possible this case might stand differently. But statutes relating to allowances have been upon the statute-books since 1783. The statute in its present form has been in force since 1838. These statutes have been applied repeatedly by this court in cases coming before it on appeal, beginning with Brazer v. Dean, 15 Mass. 183, decided in 1818. It is probably safe to say that scarcely a month has passed during all that time that some judge of probate has not been required to act on an application for a widow’s allowance. In late years these applications have been much more frequent. In only a single instance, so far as the reported cases show, has this court reduced an allowance made by a probate court. That was the case of Washburn v. Washburn, 10 Pick. 374, which will be referred to again later. A construction has thus been given in practice by the Probate Court to the statute which has received the sanction of this court, and which has prevailed for many years. The views of the Commissioners on the revision in 1835, and the general expressions to be found in some of the decisions, are to be considered in the light of what this court actually has done. The allowances heretofore made, and the reasons for making them, and the circumstances under which they were made, must be looked at in order to determine whether the allowance in this case should or should not be affirmed. The point is not whether this allowance would be too large were the question wholly new, but whether it is too large in view of the construction that actually has been adopted and the practice that has been sanctioned by this court.
It is impossible to lay down any general rule by which the amount to be allowed to a widow may be determined with certainty in all cases. For that reason, no doubt, the Legislature has left the matter entirely to the sound and reasonable discretion of the court. The statute was designed to give to the Probate Court the power (which it had not without it) to assist out of the estate during its settlement a widow suddenly deprived of the aid of her husband, and placed by his death in a
The widow?s claim upon her husband’s estate has been regarded as higher than any other claim against it, except perhaps taxes. It has taken precedence of debts and legacies, and of the expenses of the last sickness and funeral and of the settlement
In only two reported cases has this court, following the Probate Court, denied an allowance. The first was Currier, appellant, 3 Pick. 375, where the allowance was refused because the husband had died testate and solvent, the widow being entitled to an allowance, as the law then stood, only in cases of intestacy and insolvency. The other was Hollenbeck v. Pixley, ubi supra, which this case does not resemble.
In Maine, where the statute authorizes an allowance to the widow “ according to the degree, and estate of her husband and the state of the family under her care,” in a case where the husband’s estate amounted to between five and six hundred thousand dollars, mostly personal, the Probate Court allowed the widow $75,000, which the Supreme Court, on hearing, increased to $85,000. Gilman v. Gilman, 53 Maine, 184. In another case in Maine the husband’s estate consisted of personal, $7,250, rights and credits, $3,250 more, and real estate, $4,750. The debts were $3,500. The widow had $10,000 in personal property, received from her father’s estate. The Probate Court allowed her $2,000. The Supreme Court reduced this to $1,500, but on condition that a gift of $2,000 by her husband to her should remain undisturbed. Walker, appellant, 83 Maine, 1.
The statute of New Hampshire allowed the judge of probate to make to the widow “ a reasonable allowance out of the personal estate for her present support.” Comp. Sts. of N. H., c. 175, § 1. In the leading case of Kingman v. Kingman, 31 N. H. 181, the personal estate was $14,699.75, and the real $10,420. Dower was assigned to the widow of a rental value of $366 per annum. The widow then petitioned for an allowance. The Probate Court gave her $1,250. The Supreme Court, on appeal, thought this too much, but gave her $750.
In Vermont, a statute provided that the widow and children constituting the family of the deceased should have such reasonable allowance out of the personal estate as the Probate Court should judge necessary for their maintenance during the progress of the settlement of the estate according to their circumstances. Comp. Sts. of Vt., c. 48, § 29. In Sawyer v. Sawyer, 28 Vt. 245, the estate of the husband was $18,000 to $20,000, of which
The Supreme Court of Connecticut has given a narrower construction to a similar statute existing in that State, and one which tends to support the view taken by the majority in the present case. Leavenworth v. Marshall, 19 Conn. 408. The statute of Rhode Island is somewhat different from the other statutes referred to, and does not appear to have been construed by the Supreme Court of that State. Pub. Sts. of R. I., c. 185, § 4, c. 186, § 11.
I have not thought it worth while to pursue this investigation beyond the States named. I think the result of this examination is to show plainly that the decision by the majority of the court in the present case is not sustained by the practical construction which has been sanctioned by this court, or by the practical construction generally adopted in other Hew England States where similar statutes exist.
Mr. Dale’s estate amounts to over $163,000. It is all personal, and is insolvent. The widow, as already observed, will get neither dower nor distributive share. The history of the legislation on the subject shows that insolvency, instead of weakening her claim to an allowance, strengthens it if anything. The cases which have been cited also tend in that direction rather than the opposite. The position of Mr. and Mrs. Dale was that of high social standing. There is nothing in the facts to indicate their style of living except what may be inferred from that fact and from the apparent wealth of Mr. Dale. Nothing appears concerning the state of Mrs. Dale’s health, and her income without extravagance on her part may fall far short of providing for expenditures which her situation and mode of life
The amount allowed in the present case, although a large one, is not an unusual one, as is shown by a list of allowances for the last ten years made by the Probate Court in this county. The fact that these apparently have been acquiesced in tends also to support what has been said above as to the construction that has been given to the statute in practice.
It is also a circumstance, not perhaps without weight, that 115,000 of insurance on her husband’s life, which ordinarily would be expected to come to his widow or family, has gone into and helped swell his estate for the benefit of his creditors.
I think that the decree of the Probate Court should be affirmed, and I am authorized to state that Mr. Justice Allen concurs in the views expressed above, and the result arrived at.
See Lisk v. Lisk, post, 153.