Philip Pugsley Will and Probate, Part 2

The appellant insists that this action of the court was erroneous, and, in support of her contention, relies upon section 3846, Rev. St. 1898, which, upon the subject of “Family Support,” provides: “When a person dies leaving a surviving wife or husband or minor children, they shall be entitled to remain in possession of the homestead and to the use of the property exempt from execution until otherwise directed by the court; and during administration shall receive such allowance out of the estate as the court may deem necessary and reasonable for their support. Such allowance may date from the death of the decedent, and in insolvent estates shall not continue for longer than one year after the granting of letters, and must be paid in preference to all other charges except expenses of the funeral and of administration.” It is contended for the appellant that, under this statute, the widow has an absolute right to a family allowance during the administration of the estate of her deceased husband, notwithstanding that a portion of the real estate was set apart to her as her share of the estate. The respondents insist that the setting apart and acceptance by the widow of such portion, she having renounced her rights under the will, is a waiver and bar to any subsequent allowance to her out of the estate, and that the purpose of family allowance is to provide for the “present support” of the widow or children until such time as the court may set apart to her her distributive share in the estate. We think the contention of the appellant is well taken and that the position of the respondents is not sound. We are not disposed to adopt such a narrow and rigid construction of the statute as is insisted upon by them—a construction so utterly at variance with the spirit of legislative liberality so manifest from the context. The construction insisted upon would do violence alike to the spirit and terms of the statute. The ground upon which this contention is based, that the widow has received her share of the real estate of the deceased, is not materially different in principle from that of instances where it is insisted that the widow is not entitled to family allowance because she has abundant means of her own for her support. The statute was not enacted merely for the purpose of providing properly for indigent widows and children during the administration of their decedents’ estates, but for all persons mentioned therein, regardless of their ability to provide for themselves out of their own private property. Such statutes, like homestead and exemption laws, are enacted because of a benevolent and humane consideration of the helpless condition and distress of families occasioned by the death of those who had furnished their support and protection, and they must be construed with the same spirit of liberality that prompted their enactment. By the enactment of such laws the Legislature under a wise public policy, seeks to guard and protect the family, which constitutes the foundation of the state itself, during the trying period of affliction and need caused by the death of the one who directed the family affairs. The statute under consideration, as will be seen by an examination of it, does not make dependence on an allowance a prerequisite to such an allowance. It grants to the surviving wife or husband or children who may constitute the family of the deceased the use of the homestead and property exempt from execution until the court shall otherwise direct, and then provides that during administration they “shall receive such allowance out of the estate as the court may deem necessary and reasonable for their support.”

To be continued…

Part 1