28 Vt. 245 | Vt. | 1856
The opinion of the court was delivered, at the circuit session in September, by
This is an appeal from the court of probate in the matter of allowing maintenance to the widow of the intestate during the settlement of the estate; and comes into this court upon exceptions to the decision of the county court, affirming the decree of the court of probate.
The statute, upon the subject of this allowance, is very specific and unlimited. It is “ the widow and children, constituting the “family of the deceased, shall have such reasonable allowance out of “ the personal estate, as the probate court shall judge necessary for “ their maintenance during the progress of the settlement of the “ estate, according to their circumstances.”
Here, it is obvious, no discretion is given the probate court to disallow such maintenance, in any case, unless upon the interpretation of the word reasonable, or as the court shall judge necessary. And it would certainly be a very unusual interpretation to put upon such terms, in their connection here, to say they were intended to regulate the discretion of the court in what cases to allow such maintenance, when, from their relation to other members of the sentence, it is obvious that the only question intended to be referred to the court, under the terms, was the amount of the allowance, according to the circumstances of the family. We can only
The exceptions claimed in the present case are, first on the ground of the pension which the widow obtained, as such, upon the decease of her husband. This is not different, in principle, from her being possessed of ability to maintain herself in any other mode, so as not to require assistance from the estate. And indeed the general ability of the appellee, or the widow in this case, from her living with her father, and the wealth of the family, and the very great improbability of his making any personal claim against his daughter for her hoard, was also alluded to in the argument, and is stated in the case, and seems to us to come fairly under consideration, in the same connection. But we are not prepared to say that any such exception can fairly he engrafted upon the statute, If it had been the purpose of the legislature to allow maintenance only in the case of such widow and children as were without the means of subsistence, in any other mode, it is difficult to conjecture how it occurred that the provision should have been expressed in the general and unlimited manner it here' is. It is incomprehensible that, if the provision were intended only for the indigent and necessitous, it should have been made general. It is, at all events, 'sufficient for us that, the provision being general, it must be allowed to have a general application.
II. Some question was made in the argument, whether the statute did not require the allowance to be made by the court in advance of the expenditure. We do not think that indispensable, or 'that in practice it is generally done, or that, in the majority of cases, it would be the desirable mode of accomplishing the thing. It is probable, in practice, that the administrator would make the expenditure, as the necessity occurred, and have such sum allowed, in the settlement of his account, as the court deemed reasonable; and this seems to us the fair exposition of the statute.
Ill A question is made, whether, there being no children, thewidow is entitled to such allowance. This would certainly be adopting the most literal construction of the statute; and, in pursuance of the same line of argument, it might almost be inferred, perhaps, that
In regard to the amount of the allowance, that is a matter resting altogether in the discretion of the probate court, or of the county court upon appeal; and not ordinarily subject to revision, in this court, upon exceptions, the case coming here only, as upon a writ of error. Judgment affirmed.
