Whitcomb v. Taylor
| Decision Date | 05 September 1906 |
| Parties | WHITCOMB et al. v. TAYLOR. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas A. Merrill, for appellants.
Daniel W. Haskins and Marvin M. Taylor, for appellee.
This is an appeal from a final decree of a single justice of this court, reversing a decree of the probate court which gave an allowance to the widow out of the personal estate of Samuel Taylor, deceased. Although there is some language in the report that is appropriate to a reservation of a case for the full court under Rev. Laws, c. 159, § 29, which may be made instead of entering a final decree, it appears that a report was asked for by the party against whom the decree was entered, and we must treat it as made under Rev. Laws, c 159, § 23, which authorizes and requires a report to complete the record in such cases. Worcester v. Lakeside Manufacturing Company, 174 Mass. 299-300, 54 N.E. 833; Cleveland v. Hampden Savings Bank, 182 Mass. 110, 65 N.E. 27; Crocker v. Crocker, 188 Mass. 16, 73 N.E 1068.
The inventory showed personal estate to the amount of $136.78, which was afterwards increased to $657.16. This was found insufficient to pay the debts and expenses of administration, and the executors were licensed to sell all the real estate for the payment of the debts. The real estate brought the sum of $1,125. From the personal estate and the proceeds of the real estate the executors paid lawful debts of the testator to the amount of $1,671. They paid other debts, most if not all of which appear to have been valid, amounting to $45. There was also a charge of $50 for services of counsel and a charge of $50 for the executors as expenses of administration, which latter charge the judge found to be reasonable. He also found that by these payments the entire assets of the estate had been exhausted before the decree of the probate court, making an allowance to the widow, was entered.
The appellants conceded at the hearing before the single justice 'that if the decree of the probate court was valid, it should be affirmed, as the amount of the allowance was not excessive'; but they asked the judge 'to rule that, because the entire estate had been exhausted by the executors in the payment of debts which could not be recovered back, and in reasonable charges of administration which have been incurred prior to said decree, the granting of which would render said estate insolvent, the petition should be dismissed.' The judge so ruled, and entered a decree reversing the decree of the probate court. The appeal opens all questions of law and of fact which appear upon the record; but the particular question on which the decision turns is whether the decree of the probate court making the allowance was invalid by reason of the previous payment of debts which exhausted the estate.
It is found that the petitioner, at the time of her husband's death, was nearly 84 years of age, feeble in health and unable to contribute to or earn her own living. She has never received anything from the estate of her husband, as legatee or otherwise. These facts, with no contradiction or explanation, even without the concession of the appellants, would make it the duty of the court to order an allowance for her, if there were personal estate from which it could be made. There is nothing in the case to affect adversely the petitioner's rights, except the payment of debts by the executors.
The statute, which is found in Rev. Laws, c. 140, § 2, provides that 'such parts of the personal property of a deceased person as the probate court, having regard to all the circumstances of the case, may allow as necessaries to his widow for herself, * * * shall not be taken as assets for the payment of debts, legacies or charges of administration.' The term 'personal property' means the personal property left by the deceased at the time of his death, and as to this property, upon the...
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