Chase v. Webster

46 N.E. 705, 168 Mass. 228, 1897 Mass. LEXIS 200

• Court: Massachusetts Supreme Judicial Court
• Decided: April 1, 1897
• Status: Published

Opinion

Barker, J.

A decree of divorce entered nisi does not dissolve the marriage. Wales v. Wales, 119 Mass. 89. Graves v. Graves, 108 Mass. 314. Noble v. Noble, L. R. 1 P. & D. 691. A decree nisi having been entered, the death of either party before the decree has been made absolute, and before the time when it can be made absolute, puts an end to the suit; and thereafter the divorce cannot be made absolute, either by order of court or by the operation of St. 1893, c. 280, § 1. The petitioner is therefore the widow of the testator.

The power to make allowances from the personal estate of a deceased person is given by Pub. Sts. c. 135, § 2, and the direction given by the statute is that the petition shall be dealt with “ having regard to all the circumstances of the case,” with a necessary implication that the allowance shall be given only to relieve what, under the circumstances, are fairly to be deemed necessities. See Washburn v. Washburn, 10 Pick. 374; Hollenbeck v. Pixley, 3 Gray, 521; Slack v. Slack, 123 Mass. 443; Dale v. Hanover National Bank, 155 Mass. 141. These cases hold that the allowance is not to be given with the design of taking the estate from creditors, or of modifying the provisions of a will, or of changing the course which property would take under the statute of distributions, and that the allowance may be given, although the widow at the time of her husband’s death is living separate and apart from him ; and the decisions cited say that the fact that the parties were separated, or the question which party was the culpable cause of the separation, may have little application to the question of the allowance, and that it is not made as a reward for faithful service as a wife, but is a question of the widow’s actual necessities.

In the present case the allowance was of one hundred dollars only. The will of the testator left all of his property away from his widow, and his estate amounts to nine hundred dollars, so that, having waived the provisions of his will, she will take under the statute of distributions all of his property not needed for the payment of debts and charges of administration, and it did not appear at the hearing whether there were any debts. The making of the allowance is therefore not shown to have been contrary to the provisions of the statute as construed and interpreted by the decisions cited. The petitioner was found by the justice who made the decree to have been in necessitous circumstances, and entitled to the small allowance given her by the Probate Court.

The decision of a single justice of this court in a probate matter is not to be reversed unless clearly shown to be erroneous. Allen v. Allen, 117 Mass. 27, 29. Slack v. Slack, ubi supra. In the opinion of a majority of the court, we cannot say, as matter of law, that the circumstances were such as to make the allowanee erroneous.

jDecree affirmed.