Caldwell v. Estate of Caldwell

6 N.W. 714, 54 Iowa 456

• Court: Supreme Court of Iowa
• Decided: October 6, 1880
• Status: Published

Opinion

Adams, Cu. J.

i. estate : widow^tiscourt. The application was made under section 2375 of the Code, which is in these words: “The court shall, if necessary, set off to the widow, and children under fifteen years of age, of the decedent, sufficient of his property, of such kind as it shall deem appropriate, to support them for twelve months from the time of his death.”

The plaintiff insists that under the facts of this case an allowance was necessary, within the meaning of the Code. She insists that whether the estate is large or small she and the children under fifteen years of age are entitled to a support from it for twelve months, if they have no other resources. It is said that in her inexperience and bereavement she should not be compelled to resort at once to earning money for the support of herself and children under fifteen years of age, if the estate is sufficient to support them, and that the law will not presume that they can live upon credit. We might concede the correctness of this position, and still it would not follow that the court erred in refusing the allowance. The burden was upon the plaintiff to show that the allowance was necessary. It was not shown that the children had no other resources. They may have been the heirs of other property. The plaintiff, while it appears that she had no other property, had other resources. She was administratrix, and entitled to compensation. Now, while we think that the court might properly have made a smalL allowance in addition to her compensation as administratrix, yet, in view of the consideration that courts ought to be exceedingly prudent in this respect, and the further consideration that they must be allowed the exercise of considerable discretion, we do not feel at liberty to interfere.

Affirmed.