15 N.H. 74 | Superior Court of New Hampshire | 1844
It is unnecessary in this case to consider any other than the fourth reason for the appeal; for if the question whether the appellee be legally entitled to an allowance, be answered in the negative, the other reasons will become immaterial.
The law by virtue of which this allowance was made, is the 1st section of ch. 165 of the Revised Statutes. This section provides that the judge of probate may make to the widow of an intestate a reasonable allowance out of the personal estate, for her “ present support.” It purports to have been made under the 17th section of the act of July 2, 1822, N. H. Laws 337, (Ed. of 1830,) which contains a provision that an allowance may be made for the “ present support and comfort” of the widow, and a “ similar allowance” whore it is manifest that the testator was deceived in the condition of his estate. But that section was repealed, with the act of which it is a part, when the Revised Statutes were enacted, and neither that -nor a similar provi
It has been a prevalent impression that at any time before a final decree of distribution it was competent for the judge of probate to decree an allowance to the widow, however long a period might have elapsed between the death of her husband and the time when the allowance was petitioned for. It appears to have been thought that the widow in her forlorn condition was an object for the kindness and charity of the court, rather than a person whose rights were defined by law, and for whom the law had made a reasonable provision. Perhaps the error, if one must exist, has been in the right direction; but there need be no error where the statute is administered with proper reflection. The allowance is made for the present support of the widow; that is, for her support presently upon and immediately after the death of her husband ; at a time when the affairs of the estate are not supposed to have been examined, and when there is no specific property which the widow has a right to appropriate for her support. By the common law no such provision was made for the widow, unless we may so regard that clause in Magna Oharta, by which she had a right to remain in her husband’s capital mansion house for forty days, during which time her dower was to be assigned. The statute intends the allowance for the supply of those present and immediate wants for which she has in general no other resource immediately upon the decease of her husband. In the present case it was made four years after the death of the appellee’s former husband, and we think the judge of probate had no power to make it after so long a time had elapsed. It was made, also, after the sale of the personal estate and a decree of distribution ; and these facts would deserve consideration in determining the question before us, if the time when it was made were not a sufficient reason for our conclusion.
Deco'ee reversed.