Monday, April 26, 2010

Philip Pugsley Will and Probate, Part 3

The language of the first part of this last provision is express and mandatory; that of the latter part, discretionary. Upon proper application therefor [sic], some allowance must be granted as of absolute right; but the amount thereof rests within the sound discretion of the court, and is not subject to interference by the appellate court, except in case of a clear abuse of discretion. The period for which an allowance must be granted, under this statute, is “during administration” of the estate. In fixing the amount of the allowance, the ages of the survivor or survivors, their health, their social position and standing, the education of the children, the value of the estate, and its solvency or insolvency, are proper subjects for consideration; but the court has no right to refuse an allowance altogether, and thereby make the support of the family out of the estate, while administration continues, depend upon conditions which the Legislature did not see fit to impose. “In determining,” says Judge Woerner, “the amount necessary for such purpose, regard may be had to the state of the health, age, and habits of the widow, the number and age of the children immediately dependent upon her, as well as the value of the estate, and of her dower and distributive share therein. It may also be considered whether or not she is accustomed to hard labor, and thus enabled to support herself, or if, by reason of ill health or other circumstances, she is unable to do so. A smaller amount will be proper in the former case than that which may be necessary in the latter. When the statute fixes the time for the duration of which the allowance is to be made, it must, of course, be sufficient to secure the reasonable comfort of the family during the whole of such period, if used with ordinary prudence and economy. If the estate is large, apparently solvent, and the allowance merely an anticipation of the widow's distributive share, a more liberal allowance will be justified than where it is small or insolvent; and what would be a reasonable allowance for one accustomed to privation and labor might be very unreasonable for one raised in affluence.” 1 Woerner, Am. Law Adm. § 79.

In the case of In re Lux, 100 Cal. 593, 35 Pac. 341, the Supreme Court of California, after holding, in reference to a similar provision of statute for family allowance, that “its language is express and mandatory,” said: “The allowance is to be sufficient to provide all the necessaries of life, and this will include all those things which are reasonable and proper for use in the home and in social intercourse, in view of the condition and value of the estate and the station and surroundings of the family.” The question here presented was before the Supreme Court of Vermont in Sawyer’s Heirs v. Sawyer, 28 Vt. 245. There the statute provided that “the widow and children constituting the family of the deceased, shall have such reasonable allowance out of the personal estate, as the probate court shall judge necessary for their maintenance during the progress of the settlement of the estate, according to their circumstances.” It was urged that the widow was not entitled to an allowance, because since her husband’s death she was in receipt of a pension from the United States, and was living with her father, who was a man of wealth, and made no charge against her for support. The court held that the financial ability of the widow to support herself without aid from the estate was immaterial, that the statute was one of general application, and that the probate court had a discretion only as to the amount of the allowance, and could not refuse it altogether.

To be continued...

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