Dunn v. Kelley

69 Me. 145, 1879 Me. LEXIS 26

• Court: Supreme Judicial Court of Maine
• Decided: February 5, 1879
• Status: Published

Opinion

Walton, J.

Gyrene E. Dunn applied for an allowance out of the personal estate of her deceased husband. The judge of probate allowed her §600 out of the property inventoried, and §404 drawn from the Masonic Belief Association, amounting in all to §1,004. Being dissatisfied with this allowance, she appealed. At the hearing at nisiprius in this court the presiding judge allowed her $2,000, and all of the furniture claimed by her, not inventoried, which was in the dwelling-house of the deceased at the time of his death. To this allowance the heirs except; and the question is whether the exceptions can be sustained.

We think not. The amount of a widow’s allowance, and the kind of property of which it shall consist, are questions which must be determined by an exercise of judgment and judicial discretion ; and it is well settled that to such decisions exceptions do not lie. True, the B. S., c. 77, § 21, declare that, when the court is held by one justice, “ a party aggrieved by any of his opinions, directions or judgments ” may except; but this provision has always been construed to include only opinions, directions and judgments upon questions of law, and not to include such opinions, directions or judgments as are the result of evidence, or the exercise of judicial discretion. Scruton v. Moulton, 45 Maine, 417. Crocker v. Crocker, 43 Maine, 561. Call v. Call, 65 Maine, 407. Higbee v. Bacon, 11 Pick. 423.

Exceptions overruled.

Appleton, C. J., Barrows, Virgin, Peters and Libbey, JJ., concurred.