Phelps v. Phelps

16 Vt. 73

• Court: Supreme Court of Vermont
• Decided: January 15, 1844
• Status: Published

Opinions

The opinion of the court was delivered by

Hebabd, J.

“The widow shall be allowed all her articles of apparel and ornament, the wearing apparel of the deceased, and such other part of the personal estate of the intestate as the Probate Court may assign to her, according to her circumstances, and the estate and degree of her husband, which shall not be less, in any case, than one third, after the payment of the debts, and funeral charges, and expenses of administration.” Rev. St. 262.

The law has in no way limited the amount which the widow is entitled to receive, in- the case of solvent estates, except by the judgment and discretion of the Probate Court. The mode, by which that part of the personal estate, to which she is entitled, is to be ascertained and separated from the rest, is not provided by statute. The statute has made provision for the division of all the other parts of the estate. In case of setting off the dower in the real estate, commissioners are appointed, and the widow is restricted to one third; and for dividing the estate among the heirs commissioners are appointed, and they are required to divide the estate remaining equally among the heirs. But, in the case of assigning the personal estate of the deceased to the widow, the Court is left entirely to its discretion in fixing upon the quantity to which she is entitled, and the mode of designating the particular articles of property.

In the present case the Court fixed upon the amount to which the widow was entitled, and permitted her to select from the inventory of the estate articles, at their appraised value, sufficient to make up the amount. How far the amount that the widow received was to be regarded as a just and proportionate share of the property, to which she was justly entitled, is not a question for this Court. The amount of the assignment is a matter of discretion, to be exercised with reference to the circumstances and condition of the estate, subject to re-examination by the County Court upon appeal, but is not a subject of error for the consideration of this Court. The only question to be settled by this Court is in relation to the mode of designating the particular items of the estate, which were to constitute her assignment, — in other words, whether the assignment was void for want of the proper elements to make the decree legal and sufficient.

The widow is entitled to “such other part of the estate” as the Probate Court shall assign to her. The estate may consist of money, or specific articles, or both; and the law requires the Court to appoint appraisers, who are to make an inventory of the estate, and affix a value to the several articles; and this is to be done before the assignment is made; and, after this inventory and valuation of the property is made, the estate, for some purposes at least, is considered with reference to the inventory ; and it may be reasonable to suppose that the intention of the legislature was that the estate of the deceased, for this purpose at least, should be understood to mean the amount of the appraised value of the different articles of which the inventory is made up, and not the individual articles themselves.

If this view is correct, the judicial exercise of the power of the Court relates to the fixing the amount to which the widow is entitled, and not to the designating the particular articles which she shall receive. And this amount is to be determined by a variety of facts and circumstances. If there is a choice in the articles, either in regard to valuation, utility or convertibility into money, and these facts are known to the Court, the Court will take these facts into account in fixing upon the same, and, if he gives her the selection, he will fix upon a smaller sum; or, if he selects the articles himself, he will fix, the amount accordingly.

As the Legislature has left this subject in such general and undefined terms, to which the several Probate Courts for so long a time have given a practical construction, and one which has been acquiesced in so long, and one, too, which seems to us more objectionable in practice than in theory, we are disposed to leave it, where it properly belongs, for the legislature to correct whatever evils may have grown up in practice under a provision of the statute, which, perhaps, is not sufficiently explicit and guarded.

The judgment of the County Court is affirmed.