Smith

| Me. | Nov 2, 1910

Emery, C. J.

After the estate of Edward P. Page, deceased intestate, had been settled and the balance left in the hands of the administratrix, after payment of debts and expenses, had been ascertained, the judge of probate upon due petition and notice made a decree for distribution of the balance to the widow and children of the deceased. In his decree he awarded the widow a share equivalent to one-third of the gross personal estate before deducting debts paid, etc., instead of one-third of the net balance in the hands of the administratrix. One of the children thereupon entered this appeal to the Supreme Court of Probate.

Clearly, as practically admitted by counsel, there was error in the decree. The widow was entitled upon distribution to only one-third of the net balance in the hands of the administratrix after paying the debts, etc., R. S.., ch. 77, sec. 18. Fogg, Appellant, 105 Maine, 480.

Nevertheless, the widow contends that the decree should be affirmed because of the following circumstances: A year or more previous to the final settlement of the estate she petitioned for a widow’s allowance out of the personal property under R. S., ch. 67, sec. 14. At the hearing upon that petition both the widow and the heirs were present with counsel. The judge of probate, being then of the opinion that the widow would be entitled to one-third of the gross estate upon distribution instead of one-third of the net balance only, granted her a much smaller allowance than he otherwise would, and he so stated to the parties at the time. This opinion seems to have been shared by counsel for both parties. At least no dissent was expressed. Believing, from the judge’s un contradicted statement of the law in the presence of both counsel, that upon final settlement and distribution she would be entitled to one-third of the gross estate as stated, the widow did not appeal as, but for that assurance and belief, she would have done.

It should need no argument, or citation of authorities, to demonstrate that the children cannot now be forced to yield to the widow any of their legal rights or shares in the estate because of her mistaken views of the law, even though that mistake was owing to expressions of opinion as to the law by the judge of probate or by their counsel. She must, herself, bear the consequences of her mistake, and even of her acceptance of the erroneous opinion of others who she had reason to believe knew the law. The court is now sitting as the Supreme Court of Probate and, whatever the hardship to the widow and even the seeming inequity, the court must award the children their legal rights and shares in the estate as fixed by the statute. This is what "law and justice require.” (R. S., ch. 65, sec. 33.)

Decree below reversed. New decree to be made in accordance with this opinion and for costs of appeal, and case then remitted to the probate court for further proceedings.