273 Mass. 316 | Mass. | 1930
This is an appeal from a widow’s allowance decreed by the Probate Court to Margaret E. Hooker, widow of Allan A. Hooker who died October 21, 1927, intestate. Apart from his widow his only heir-at-law was his father. The petition for allowance was filed in January, 1930. The estate consisted of both real and personal property amounting in all to about $165,000. There were practically no outstanding debts against the estate except claims of the appellant in these proceedings, who has brought an action in the Superior Court based upon a promissory note for $100,000 and on two instruments alleged to be agreements to make mutual wills. The judge found that the widow was without funds at the date of her husband’s death; that the estate is in litigation and cannot be distributed by the administrator; that since the appointment of the administrator there has been advanced to the widow on account of her distributive share the sum of $5,000 in
The finding of the judge was based upon statements of counsel representing all parties in interest. G. L. c. 196, § 2, provides: “ Such parts of the personal property 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 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 six months next succeeding his death, shall not be taken as assets for the payment of debts, legacies or charges of administration.” In Dale v. Hanover National Bank, 155 Mass. 141, 144, the court said: “ The purpose of an allowance is to provide for the necessities of the widow and minor children for a short time, until they have an opportunity to adjust themselves to their new situation.” In Hale v. Hale, 1 Gray, 518, 521, the court, in referring to the statutes then in force, said that “ there is no implication even that a second allowance may not be made at any time before the personal estate is exhausted.” In Lisk v. Lisk, 155 Mass. 153, an allowance was confirmed when the petition asking for it was not filed until about two years and eight months after the appointment of the administrator of the husband’s estate. In this case after a statement of the rule quoted from Dale v. Hanover National Bank, supra, it was said at page 154: “ While the amount of the allowance cannot exceed what is required to meet these necessities, many considerations must enter into the determination of it, and there is a wide field for the exercise of judicial discretion.” Hollenbeck v. Pixley, 3 Gray, 521. Bush v. Clark, 127 Mass. 111. Chase v. Webster, 168 Mass. 228.
The facts that the estate was of a substantial size, that
Decree affirmed.