Whitehead v. Kirk

Mar 15, 1914
Versions:64 So. 658
106 Miss. 706
Cook, J.,

delivered the opinion of the court.

W. J. Kirk died, leaving a Avill devising all of his property to his sisters, to the exclusion of his wife. The wife’s name is not mentioned in the will. Appraisers of the estate of the testator were appointed, and set aside to the widow who had no children, one thousand two hundred dollars in money for a year’s comfortable support. Exceptions were taken to this report by appellants, devi-sees under the will, which exceptions were overruled. *713Prom the action of the chancellor, confirming the report of the commissioners, this appeal is prosecuted.

The contention of appellants is that the widow is entitled to no allowance under section 2052, Revised Code of 1906, the decedent having’ died testate as to his entire estate, and the allowance, if she is entitled thereto at all, is grossly excessive. In support of the contention that in cases where the decedent leaves a will the widow is not entitled to one year’s support, counsel for appellants cite McGaughey v. Eades, 78 Miss. 853, 29 So. 516. In that case the widow, by the will of the decedent was left a legacy of one thousand dollars, and he expressly stipulated in his will that said sum of one thousand dollars should be in lieu of all exemptions and other demands or interest in his estate, both real and personal. “In the eighth item of his will be directed the legacy given to his wife to be paid before all other legacies, and in the twelfth item of his will he declared that it had been his aim to make his wife equal to any one of the other heirs and no more.” The above quotation is taken from the opinion of the court, and to make clear what the court did decide we quote from the opinion this statement, viz.: “To permit the widow to take the leg’aey under the will of her husband, and at the same time to receive the benefit of an allowance of one year’s provision, directly against the will of the testator, would be to allow her to affirm the will as to the one thousand dollar legacy, and repudiate it as to the year’s provision. This may not be done. Shafer v. Shafer’s Ex’r, 129 Ind. 394 [28 N. E. 867].”

It may be conceded, and for the purposes of this decision it is conceded, that this court in the McGaughey Case, inferentially, at least, overruled Turner v. Turner, 30 Miss. 428, and McReary v. Robinson, 12 Smedes & M. 318. We think that the rule of construction announced in the last-named cases is the better rule, and in our opinion the reasoning correctly interprets the legislative in*714tention. “The allowance for a year’s provision stands upon different ground — that of the immediate necessities of the widow and children. It interferes with no right of disposition which the testator could be presumed to make of his property, and therefore, from its peculiar nature, is allowed as a privileged claim upon his estate, whether he has left a will or not. . . . It is intended as a humane provision for the support of herself and her children, when she is presumed to be left in a condition in which she is unable to provide for herself.”

In regard to the contention that the allowance was grossly excessive, we cannot see that this is so. This was left to the sound discretion of the chancellor, and in determining the amount he could properly take into account the manner of living to which the widow during the life of her husband had been accustomed — her station in life and the demands which such station imposed upon her.

Affirmed.