95 Mass. 207 | Mass. | 1866
Under the system established by statute in 1859, regulating the practice of this court in matters of equity and of probate, a party aggrieved by any order or decree of a single judge in an equity or probate cause has the right of appeal to the full court, upon law and fact. St. 1859, c. 237, §§ 2, 4, 6; c. 196, § 53. Gen. Sts. c. 113, §§ 8, 10, 14, 21; c. 117, § 14. By a rule made by this court, in the exercise of the power conferred by St. 1859, c. 196, § 49, and Gen. Sts. c. 113, § 26, he cannot indeed have all the evidence reported, unless he had previously moved for the appointment of a commissioner to take it. 34th Rule in Chancery, 14 Gray, 359. But the report of the judge before whom this petition was heard, according to the usual and convenient practice in cases in which the judge is informed that an appeal is to be taken, states the facts on which his decree was based. All inferences of fact, and questions of discretion, as well as of strict law, involved in that decree, are therefore now before us for revision. The case of Higbee v. Bacon, 11 Pick. 423, cited for the appellee, was decided before the statutes of the Commonwealth had made any distinction in this respect between our equity or probate jurisdiction and our jurisdiction at common law.
The allowance which the judge of probate is authorized to make to a widow out of the personal estate of her husband is principally intended for the present support of herself and her family, if any, while the estate is in process of settlement, and is usually moderate in amount, and made by the judge of probate in a summary manner soon after her husband’s death. Washburn v. Washburn, 10 Pick. 375. Adams v. Adams, 10 Met. 171. Hale v. Hale, 1 Gray, 522. Williams v. Williams, 5 Gray, 25. Drew v. Gordon, ante, 122. No notice of the application of a widow for an allowance is required by statute, except upon a grant of special administration ; and the practice of the probate courts in the different counties has not been uniform upon
The reasons for not making notice an absolute prerequisite to the validity of an allowance also excuse the parties interested in the estate from closely watching the action of the probate court in the matter. The children and creditors of the deceased may be perfectly willing that any reasonable sum should be allowed, and may yet well suppose that no extravagant allowance wil. be made without notice to them, or at least until the condition of the estate is fully understood. Upon further deliberation, we are all satisfied that at the hearing of this petition the petitioners were held to too strict a rule of diligence. If the widow had caused notice to be given to them of her application to the judge of probate, the case would have stood differently. One of the petitioners was not in fact informed of the allowance until less than thirty days before they filed this petition, and all of them may have inferred from the information obtained from the judge of probate that they were without remedy.
The decree dismissing the petition must therefore be reversed, and the petition stand for further hearing upon the question whether justice requires a revision of the case.