Piper v. Piper

34 N.H. 563

• Court: Supreme Court of New Hampshire
• Decided: January 15, 1857
• Status: Published

Opinion

Fowler, J.

Upon the facts found by the auditor’s report, and shown by the copies in this case, the first question presented is that raised by the second reason of. appeal assigned by the appellant, namely, whether the appellee was estopped, by receiving the legacy of one dollar and giving her receipt therefor, under the circumstances stated by the auditor, from afterwards waiving the provisions of the will, and claiming her allowance out of the personal estate of her deceased husband.

It might well be doubted whether a nominal legacy of one dollar only to the widow is such a provision as the law contemplates it to be necessary for her to waive before being entitled to claim an allowance for her present support. It would seem, that in order to render a provision for the widow equivalent to her right to an allowance, it should be something substantial, affording to her the means of subsistence and decent attire at least, until dower in the real estate could be assigned to her. Laws of 1830, 337, sec. 17; Rev. Stat., chap. 165, sec. 2; Laws of 1844, chap. 138.

But, admitting the construction of the law in accordance with which the parties in this case have acted, we think it quite clear that the mere receipt of the nominal legacy could work no forfeiture of the right to an allowance, unless it were received understandingly, and with the intention of effecting that result. And all the facts in the present case go to prove conclusively, that neither the appellee nor the appellant so understood or intended the payment and receipt of the dollar legacy. The great age of the appellee, the fact that nó provision whatever for her support had been made in the will, or otherwise,-except upon a condition repugnant to her' self-respect and personal independence, her entire destitution, and her conduct in at once tendering back the money and demanding the surrender of the receipt, together with her application for the allowance within five days after the receipt had been given, all satisfy us fully that there could have been no intention of the appellee to relinquish her claim to the personal estate, when she received the nominal legacy. The evidence before the auditor indicates quite decisively that the legacy was paid and received under a misapprehension — an idea that it was necessary, to facilitate the settlement of the estate, as a mere matter of form — and with an understanding by both parties, that the rights of the appellee were to be in no way prejudiced thereby. We have, therefore, no hesitation in holding that the receipt of the legacy by the appellee, under these circumstances, did not preclude her from waiving the provision made for her in the will, and demanding an allowance out of the personal estate for her present support.

The only remaining question relates to the reasonableness of the allowance of two hundred and fifty dollars.

The discretion vested’ in the judge of probate, to make from the personal estate of the deceased husband an allowance for the present support of the widow, is a legal discretion, to be exercised judiciously and discreetly, subject to he revised and corrected by this court as the supreme court of probate. Hubbard v. Wood, 15 N. H. 74; Mathes v. Bennett, 1 Foster 188; Adams v. Adams, 10 Metcalf 170; Kingman v. Kingman, 11 Foster 182.

For about sixty years the testator and appellee, commencing life poor, lived and labored together, nurtured and educated respectably a family'of ten children, acquired an estate of more than twenty-five thousand dollars, and distributed sixteen thousand dollars’ worth of it to their children, as they were married and settled in life. Then, because the appellee refused to relinquish her interest in the old family homestead to a son who had already received one or two thousand dollars more of the family property than any other child, the testator abandoned her to the tender charities of that son, without the slightest means of support except the use, by sufferance, of a scanty supply- of household furniture, ever afterwards rudely and harshly refused to live with her, in his will made no provision whatever for her support, and died leaving more than four thousand dollars in real estate, and one thousand dollars’ worth of personal property, and claims against the estate to the amount of only five hundred and forty dollars. We all think it was not, under these circumstances, an indiscreet or injudicious exercise of the discretion vested in the judge of probate, for him to allow the appellee two hundred and fifty dollars out of the personal estate, for her present comfortable subsistence and clothing. Indeed we can hardly conceive of a stronger case, for a liberal exercise of the legal discretion which the statute reposes in that tribunal, than was here presented ; and we are unable to perceive that any party in interest has just cause of complaint against the proceedings in the probate court.

The decree of the judge of probate must therefore be affirmed, with costs to the appellee.