Kingman v. Kingman

| Superior Court of New Hampshire | Jul 15, 1855

Eastman, J.

The provisions of the statute under which this allowance was made are as follows: “ The judge of probate may make to the widow of any person deceased, intestate or testate, the widow not being mentioned in such deceased person’s will, a reasonable allowance, out of the personal estate, for her present support; and in the decree of distribution of the estate, the whole, or such part thereof as the judge may deem reasonable, shall be accounted as part of her share.” Comp. Stat., ch. 175, § 1.

Upon the facts, as presented by the case, two questions arise; first, was the allowance seasonably claimed and decreed ? and, second, was it reasonable, such as was contem- ■ plated by the statute ?

Unless there be good and substantial reasons for the delay, an allowance ought to be prayed for as soon as the inventory of the estate is returned. It is frequently necessary to sell the personal property at once, to prevent waste and diminution in value, especially if any considerable portion of it be neat stock or animals that it may be bad economy to keep. Delay in making the application will oftentimes embarrass and retard the settlement of the estate, and be injurious to all that may be interested therein. In Hubbard v. Wood, 15 N. H. Rep. 74, it was held that the judge of probate has no authority to decree an allowance to the widow, after the lapse of four years from the death of her husband. That decision was placed upon the ground of lapse of time merely, the learned judge who delivered the opinion of the court, remarking that the facts that the decree was made after the personal estate had been sold, and a decree of distribution passed, were matters that would deserve consideration, in determining the question, if the time when the application was made was not a sufficient reason for their conclusion.

The intestate, in this case, died on the 31st day of May, 1854. Letters of administration on the estate were taken out on the 6th of June following, and an inventory returned on the 5th of July of the same year. On that day the administrator requested the counsel of the widow to apply for an allowance, but he declined so to do. License was then obtained to sell the personal property at auction, and on the 21st and 29th days of that month, sales were made, to the amount of $795 75. Before the sale, however, the widow, with the consent of the administrator, made a selection from the personal estate, to the amount of $335 50, and gave him a receipt for the same, as a part of her allowance. On the first day of August following, the judge of probate made the decree, allowing her $1250, and after this allowance was made, the administrator sold, under his license, the bank and railroad stocks, and the rest of the personal property.

From these facts, it appears that this allowance was made about two months after the decease of the intestate, within thirty days after the inventory was returned, and when only a part of the personal estate has been sold; and although the application ought to have been made at the time requested, when the inventory was returned, yet we do not think that it was so unseasonably made as to be denied, on that account alone, or that the settlement of the estate had so far progressed as to make that a sufficient ground for its denial.

The receipt of the $335 50 could not estop her from making the application, for it was taken with the proviso that it was only a part of the allowance. And the assignment of the dower could not affect the power of the court to make the allowance. The dower and the allowance are given to a widow upon entirely different grounds, and although the amount of dower, and the time when it is set off, and its income, are considerations that may well be taken into the account, in making the allowance, yet they do not estop the widow from making the application, or the judge from granting the allowance. We think, therefore, that the decree should not be reversed on the ground that it was unseasonably made.

But, second, was the allowance reasonable — such as is contemplated by the statute 1

In Hubbard v. Wood, already cited, it was held that the allowance made by the judge of probate to a widow, under the statute which we have quoted, is intended by the statute to be for her support immediately after the death of her husband. In the opinion there given, it was said that it has been a prevalent impression that at any time before a final decree of distribution, it was competent for a 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; that 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. That perhaps the error, if one must exist, has been in the right direction; but that there need be no error, where the statute is administered with proper reflection. That 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 the right to appropriate for her own support; that 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 Mathes v. Bennett, admix., 1 Foster’s Rep. 188, the principles of Hubbard v. Wood were fully indorsed, and it was there held that an allowance to a widow, under the statute, is made for her “ present support,” that is, for her support presently upon and immediately after the death of her husband. That it is not a free gift to the widow, but is intended to enable her to support herself until her interest in the estate can be set out to her.

In Massachusetts, the doctrine must now be regarded the same as that stated in the cases cited, if not indeed even more stringent. In Adams & a., ex'rs v. Adams, 10 Met. 170, it was held that the provision of the statute was intended for the personal and temporary relief of the widow-The learned Chief Justice Shaw, who delivered the opinion of the court in that case, says: We are satisfied of the correctness of the views of the revising commissioners on this subject, in their report, wherein they say: “ 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-”

And again he remarks as follows: “ On the whole, though there may have been some fluctuating views on the subject, we are of opinion that this provision was intended for the present relief of the widow, for the maintenance of herself and children; that it is temporary in its nature, and personal in its character, and confers no absolute or contingent right of property, which can survive her, or go to her personal representatives. Upon no other ground could this provision be rescued from the imputation of injustice; as it would, in many cases, operate to take property even from creditors already suffering from the insolvency of their debt- or — a class always most highly favored. As a small, temporary, personal allowance to a widow left in distress by the decease of her husband, out of articles of little value, most useful to her, but which would do very little towards increasing the fund for creditors, till some arrangement can be made, it is an equitable provision.”

These authorities, we think, place the question upon the true ground; that the allowance contemplated by the statute is for the “ present support” of the widow, and not in the nature of a gift, nor intended to compensate her for any apparent injustice to which she may, in some cases, be exposed by the statute of distribution or the will of her husband.

In this case, the judge of probate allowed the widow §1250. Was that, under the circumstances, too large an amount? Her dower had been assigned to her; from the income of the land, she received that year §186, and she rented a part of the buildings for §180 more. This would give her, ordinarily, an income of §366 a year. But supposing she expended the first year §170 for repairs and the aqueduct water, she would still have left about §200; and the buildings would be in a good state for future renting. It is suggested in argument that there is a litigation in regard to the personal estate, and the records of this court show it. This litigation may perhaps continue for some time, before the estate shall be finally settled, and the widow know what she is to receive. The estate, also, is respectably large, for a gentleman residing in a country town in this State. Bu| we are all of opinion that the allowance is too large; and it was probably made under a misapprehension of the true rule of law governing such cases. Considering the income from the dower, twelve hundred and fifty dollars would seem to be altogether more than the “ present support,” or the immediate necessities or comforts of the widow would require. The estate will, in all probability, be settled in three years at farthest, and if an allowance of $750, which would be $250 a year, for three years, is made to the widow, it appears to us that it will be quite as large a sum as a proper construction of the statute will permit.

Our opinion, therefore, is that the decree of the judge of probate should be reversed, and that the sum of $750 be allowed the widow for her present support.

We are also of opinion that neither party should have costs; for the appellee has prevailed in relation to the most important matters in controversy. Leavitt v. Worster, 14 N. H. Rep. 565; Mathes v. Bennett, 1 Foster’s Rep. 188; Griswold v. Chandler, 6 N.H. 61" court="None" date_filed="1832-10-15" href="https://app.midpage.ai/document/griswold-v-chandler-8503850?utm_source=webapp" opinion_id="8503850">6 N. H. Rep. 61.