I am forced to dissent from the opinion of the majority of the court. That opinion places upon the statute in question a narrow and illiberal construction not in harmony with the practice which has formerly prevailed in this State and inconsistent with the doctrine generally announced by the courts of this country; that statutes of a similar nature shall be construed liberally in favor of the widow and family of the deceased. I think it may fairly be said that while the majority opinion deals at great length with matters which are not really in controversy it fails to adequately consider the matters and the legal questions which are at issue.
Our statute differs in its terms from similar provisions in other states. It is markedly unlike a statute of Massachusetts the construction of which is taken by the majority as the standard of construction to be applied to out provision. The Rhode Island statute directs that the probate court "shall make reasonable allowance out of the estate of the deceased for the support of his family, until the same can be otherwise provided for, not exceeding six months from the date of the decease, having regard to the situation of the family and the value and circumstances of the estate." What the clause "until the same can be otherwise provided for" should be construed to mean, in its application to every set of circumstances, is not clear. I think we can *Page 82 fairly say that under the liberal construction which should be given to every part of this statute, it does not mean that in all cases the duty of the probate court to provide for the support of the widow ceases if the widow has private means of her own. In the case of an insolvent estate and ample private fortune in the widow, under the direction that the allowance shall be made "having regard to the situation of the family and the value and circumstances of the estate" the probate court in making an allowance might take into consideration the fortune of the widow; but in any event that fact should not prevent an allowance to her, for a period of six months or less, until her own income is in her hands, if the same is not immediately available. Such, however, are not the facts of the case at bar, for the estate of the deceased was large and entirely solvent. The word "support" as used in the statute, in its application to an allowance to a widow from her deceased husband's estate, has somewhat the same meaning as when used with reference to the obligation of a husband to his wife. The wife is entitled to be maintained by the husband in accordance with his fortune and his station in life. So under the statute, the probate court shall grant to the widow maintenance in accordance with the value of the estate. She is entitled to subsistence even if the estate is insolvent; but if solvent it is not an abuse of the court's discretion to make an allowance to the widow for a period not exceeding six months which shall provide for her maintenance in accordance with what the wife of such deceased husband would be entitled if he was alive. The husband may not have completely observed his obligation during life, he may have entirely failed to do so; but that fact would not control the court's discretion; the court should, notwithstanding, grant to the wife support in accordance with the ample, legal, meaning of that word.
Thus, it will be seen that the Rhode Island statute is very liberal in its terms; and heretofore it has been liberally construed by probate courts without appeal to this court. *Page 83 The statute of Massachusetts, however, upon the construction of which the majority so largely relies, is quite different. Under that statute the judge of probate, having due regard to all the circumstances of the case, may grant to the widow such of the personal estate as he "may see fit to allow for necessaries." It appears that unlike the Rhode Island provision the duty of the probate court to make an allowance is not imperative, but merely discretionary, having due regard to all the circumstances of thecase, not as under our law having regard merely to the situation of the family and the value and circumstances of theestate. Regard for the circumstances of the case includes, as was held in Hollenbeck v. Pixley, 3 Gray, 521, so largely relied upon by the majority, a consideration of the former relations between the widow and her deceased husband, the amount of the wife's separate estate and many other circumstances which are excluded from the consideration of the probate court in Rhode Island; but which this Massachusetts case says should be considered there as part of the circumstances of the case. Thus it will be seen that while the Rhode Island probate court is positively directed to grant to the widow an allowance for her support, for the time limited, in accordance with the situation of the family and the value and circumstances of the estate, the Massachusetts probate court is simply given the discretion to make such allowance as it may see fit for necessaries. And the Massachusetts court in some cases has interpreted "necessaries" as meaning actual immediate necessities.
The majority takes some expressions, which are merely dicta, contained in the opinion of Chief Justice Shaw in Hollenbeck v.Pixley, supra, and from them draws the conclusion that the Massachusetts court has given a very restricted and narrow construction to the statute, an example of these is the expression "it is a question solely of her actual necessities;" but the majority opinion overlooks the fact that the Massachusetts court was not deciding that question at all, and the majority opinion fails to note *Page 84 the liberal practice, which has grown up in Massachusetts under the statute, as shown in the reports. The majority opinion refers to Hollenbeck v. Pixley as the leading case, but does not say as to what principle it is the leading case. The facts of that case were that the widow and her deceased husband had lived apart for many years before his death. Eight years before his death the parties entered into articles of separation by which they covenanted to live apart for the future and she and her trustee covenanted that she should not claim dower or distributive share in her husband's estate. In these circumstances the judge of probate declined to make an allowance to the widow and the case decides simply and solely that those facts were circumstances in the case which the probate court, under the statute, was entitled to consider. A large portion of the opinion in the Hollenbeck case, quoted at length by the majority had no bearing on the point which was at issue in that case and if those excerpts, which are purely dicta, are taken by the majority as showing that a narrow construction has been placed upon the Massachusetts statute in the practice of that state, such view is not supported by the later decisions.
In the later case of Slack v. Slack, 123 Mass. 443, the widow had lived apart from her deceased husband for fifteen years before his death, yet the court would not disturb an allowance of $350 to the widow, although the administratrix claimed that such allowance would exhaust the estate. In Chase v. Webster,168 Mass. 228, it appeared that the deceased husband had obtained a decree of divorce nisi against his wife which had not become absolute before his death; that they had lived apart for two years before his death; that she was a dissolute woman of the town, and that the estate amounted to but $900. An allowance of $100 to the widow was supported although, under the statute she would also share in the distribution of his estate. In Dale v.Hanover National Bank, 155 Mass. 141, it appeared that the estate of the deceased husband was insolvent; that the husband and wife at the time of his death were not *Page 85 keeping house, but that she was living with her father and was intending to live with him; that her father was a man of property who charged her nothing for board and loading; and that she had an income of $1,200 a year from her private property. The majority of the court allowed the widow $500, and the minority desired to make a much larger allowance. As illustrating the misconception that a strict practice prevails in Massachusetts of granting to widows an allowance merely to meet their actual temporary necessities it should be noted that at the hearing inDale v. Bank, supra, a certificate was in evidence from the assistant registrar of probate for Suffolk county showing that for twelve years before that time there had been about one hundred and twenty-five probate cases in Suffolk county in which widows' allowances had been fixed at $2,000 or over, the highest being $10,000. In Dale v. Bank, supra, Mr. Justice Morton, in a dissenting opinion reviews at length the Massachusetts practice and the course of decision with reference to widows' allowances in that state and says, "the statute has always been construed liberally in favor of the widow" and her claim has been regarded as higher than any other claims against her husband's estate except perhaps taxes. He points out that notwithstanding the allowance has been spoken of in illustration as "a temporary relief to her immediate necessities on her husband's death" . . . "in no case has the allowance been limited to her actual necessities, meaning by that food, clothing, shelter, and the comforts and attendance which her physical condition may have required, nor confined to her temporary necessities, using these words in their ordinary sense. The word `necessaries' has been construed in practice to include these and much more. Her actual necessities have been measured by her husband's wealth, his social position and her own, the demands which these would entail upon her her age, health, habits, mode of life, and other like matters. The interests of heirs and creditors have never been suffered to interfere with her claim." This view of the Massachusetts *Page 86 practice is amply supported by the evidence in the Dale case and the Massachusetts cases discussed in that opinion.
The majority opinion does not expressly decide, that because the petitioner at bar has some private means and an income of her own which may perhaps be sufficient for her bare subsistence, the probate court was not justified in granting the allowance; but said opinion does refer from time to time to the amount of her private estate and income as to a matter of important consideration and also to the fact that her husband made a certain gift to her in his lifetime. This gift was a very small one when we consider the large amount of the husband's fortune and income and appears to have been a gift without condition. It absolutely belonged to her at the time of his death. If the amount of her own separate estate would not bar an allowance by the probate court the frequent consideration of the amount of her own means tends to confuse the issue before us. If the majority, however, intend to hold that the possession of a personal income from her own estate in any way prevents the exercise of the discretion of the probate court in granting her an allowance from a large and solvent estate, such holding would be contrary to the weight of authority in this country and would insert into our procedure a limitation and condition not contained in our statute.
It therefore appears to me that the imperative language of the statute required the probate court to make a reasonable allowance for this widow's support, in any event, until the provisions made for her by her husband's will first becomes payable to her, and in case that is insufficient for the full support to which she is entitled under the statute then such allowance for the space of six months as shall together with the provisions under the will make up the full sum of an adequate allowance for six months' support.
The majority have disregarded the decree of the probate court and have reversed the finding of the jury and the decision of the justice of the Superior Court and have said *Page 87 that the petitioner is entitled to no allowance whatever. This appears to me to be unjustified in any view of the case. The deceased died on the 26th of April, 1913, the first payment of income to the widow under the testator's will was not due until July 26th, 1913, and was not in fact paid to her by the trustee until August 8th, 1913. So that from the 26th of April, 1913, until August 8th, 1913, the widow was entirely without means of support from her husband's estate. It is not enough to say that later, on July 26th, or on August 8th, she was to receive a provision for her support which she might apply to the period which had then elapsed. The purpose of these statutory provisions, universally recognized, is not to compensate the widow for a failure on the part of her husband to provide for her in his will, but to furnish her with immediate assistance and support. If the opinion of the majority states the true rule then in no case would the widow be entitled to an allowance if the testator had made provision for her in his will by bequest or devise or if she was to receive a distributive share of the estate, in either case sufficient in amount to cover six months' support; for it could then be said that when she received such benefit from her husband's estate she could apply it to her six months' support. This is entirely contrary to the authority of many well considered cases.
In the case, In re Walkerley, 77 Cal. 642, it appeared that "By the codicil, executed shortly before his death, deceased, on learning that a child was to be born to him, and as is therein stated for the purpose of providing for such child, `and to make a more liberal provision for my said wife than I have made in my will,' annulled the provisions in the original will relating to his wife, and in lieu thereof gave and bequeathed to her the sum of one hundred thousand dollars, to be paid to her when certain property is sold as by the will directed, and in the meantime to be and remain a lien upon such property, bearing interest at five per cent. per annum, said interest to be paid to her semi-annually." The court considers the California statute with reference to *Page 88 allowances for widows and finds therein its power to "provide for the decent support and maintenance of the family, until, in due course of administration, they can become the recipients of the share of the estate to which they are entitled as heirs, or otherwise." The court then says: "That this provision should cease when the widow comes into such share of the estate as renders it no longer necessary, is no argument against the power to make and continue it until that event happens, which we may well assume will be upon receipt of the first installment of interest."
In Williams v. Williams, 5 Gray, 24, while Chief Justice Shaw who wrote the opinion of the court in the Hollenbeck case was still a member of the court, the court held that: "Under St. 1838, c. 145, the probate court may grant an allowance to a widow out of the personal estate of her deceased husband, although a provision has been made for her by will in lieu of dower and accepted by her, and although the executor, being also residuary legatee, has given bond as such to pay debts and legacies." It may be noted in passing that the provision in her husband's will for the petitioner in the case at bar was in lieu of dower and accepted by her as such.
In Allen v. Allen, 117 Mass. 27, it appeared that "An intestate left a widow, five children by a former wife, personal estate amounting, after payment of debts, to $9,000, and real estate of the value of $13,000 or somewhat more, in which the widow had dower. The widow remained in his house for ten weeks, and the administrator paid the expenses out of the estate. He also provided her from time to time with all the money she wished, and charged it to her distributive share. The probate court, two years after the death of the husband, upon the application of the widow, made her an allowance of $800." It was held that the decree of the probate court should be affirmed.
In Meech v. Weston et al., 33 Vt. 561, "The oratrix was bequeathed a legacy and annuity by her husband's will. She, in good faith, appealed from the allowance of the will *Page 89 by the probate court, and during the pendency of the appeal the probate court allowed her unconditionally a certain sum from the estate for her support under Sec. 29, Chap. 48, Comp. Stat. page 330; and the same was accordingly paid to her. The will was subsequently established. Held, that this allowance was independent of her legacy and annuity under the will, and that the executors or heirs could not treat it is in part payment thereof."
The majority has reversed the special finding of the jury, approved by the justice of the Superior Court, and by its final action in effect says that said finding is entirely without evidence to support it. The special finding was that the provision of the will of Lyman R. Hopkins contemplating the payment to his widow of $2,000.00 and the use of the house in Brooklyn and its furnishings during the first six months after his death, is not a reasonable provision for continuance of her support during that period. This was a material question, it was so considered by the appellant, the Trust Company, for said special finding was requested by it. It seems plain that unless the provision referred to in the special finding constituted a reasonable provision for the widow's support during said period of six months then she was unprovided with reasonable support from her husband's estate during said period. This was purely a question of fact peculiarly within the province of the jury; it was a question presented to their sound discretion as men of experience in the ordinary affairs of life. Their finding should not be reversed unless it clearly appears that there has been an abuse of discretion. It is not enough to say that the finding is contrary to the conclusion which this court might make upon the evidence, for then this court might order a new trial, but to order a judgment, contrary to the finding of the jury, this court must go farther and say that there is no legal evidence upon which a rational mind could so find. The jury's finding, however, is in accordance with the determination of the judge of probate, and it has been approved by the justice of the Superior Court. After a *Page 90 consideration of all the circumstances shown in the testimony I would not disturb the jury's finding that $2,000 did not amount to a reasonable support for the widow during said period. The personal property of this estate, consisting almost entirely of interest bearing bonds and stocks, was inventoried at one million one hundred and ninety-three thousand two hundred and six dollars, upon what the officer of the appellant said was a conservative valuation. There was some real estate owned by the deceased at the time of his death. There does not appear to have been any debts due from said estate. With an estate of over twelve hundred thousand dollars, having an annual income of over fifty thousand dollars, upon the widow's application, the probate court in the first instance, and later the jury, were called upon in their discretion to say what was a reasonable allowance from said estate in accordance with its value for the widow's six months' support. The point we are now considering is whether the finding that $2,000 and the use of the homestead is not such a reasonable allowance, is a finding that no reasonable mind could fairly make. The appellant urges that the standard of support to be applied in this case is the manner of support that the deceased imposed upon himself and his wife during his life. And the majority have adopted that doctrine. It does not appear to me that we have sufficient evidence to satisfactorily determine what was Mr. Hopkins' expenditures for the support of his family; although it does clearly appear that his manner of living was far below that of the ordinary man having his large fortune and income; and that he deprived himself and his wife of many of the comforts, conveniences and the reasonable enjoyments of life to which this petitioner was entitled as the faithful partner of a husband having such great wealth. From the testimony the jury might believe the following facts: Mr. and Mrs. Hopkins lived in what is described as a fine residential section of Brooklyn, N.Y., in a very large house, entailing much care and work for its proper keeping; although the *Page 91 petitioner was not in vigorous health and was becoming old, he permitted her to have but one servant; he permitted the home to become out of repair; the heating apparatus was insufficient to warm the house; the plumbing was defective; some of the ceilings had fallen, the window sashes were loose and much of the putty had fallen out of them; during his last illness of over two years he employed no nurse, although his condition clearly required one, but he permitted his wife to be his sole attendant until she broke down and collapsed with nervous exhaustion, and for the remainder of his life he was attended by his wife and a Swedish servant girl. From these and many other facts the jury might find that Mr. Hopkins in his lifetime did not furnish to his wife support in accordance with his means. We are not justified in saying that it was an abuse of the jury's discretion if they refused to be governed entirely by that standard and fixed the amount of the allowance as the statute directs having regard to the value and circumstances of the estate. It cannot be said that that manner of living was satisfactory to Mrs. Hopkins, for although she submitted to it she testified and the evidence is uncontradicted that she was unaware of the great wealth of Mr. Hopkins; that he had always kept her in ignorance of it. Speaking of their manner of living she testified: "Well, that is the way I had to live, pretty saving; he always told me I must be very saving;" and later in answer to the question if she knew about the amount of her husband's wealth, she testified: "No, sir, I did not. He always made me believe that he had to live very saving."
The testator gave to his wife the use of his homestead in Brooklyn and its furnishings. It is reasonable that she should use it as her home. It appears in testimony that it is a brown stone house covering the front of a lot ninety feet wide on the street and is three stories high with a basement; the jury might find that it was entirely out of repair. The jury were at liberty to find in the circumstances of this estate that it would not be an unreasonable item of support that *Page 92 the petitioner keep said house in repair and live in it somewhat in accordance with the manner of living of her neighbors; that she might employ such servants as the proper maintenance of the house would require, that she should have the privilege of entertaining her relatives at her home to a reasonable extent. The jury might find from the testimony that she needed the frequent attendance of a physician and that she was entitled to have the highest medical care; that she constantly needed an attendant to care for her; that she should have the use of a private conveyance to a reasonable extent; that she should be furnished with the means to go to some place out of Brooklyn during the heat of summer; that she should have clothing and food suitable to her condition and her reasonable desires; and that generally in her declining years she should have the means of providing for herself the reasonable comforts and enjoyments appropriate to her age and state of health and in accordance with the very ample means of her husband's estate. It is true that after said six months she will be restricted to the provision made for her in the will, for the will has been probated. But during the first six months after his decease the statute has placed it in the discretion of the probate court and upon appeal in the discretion of the Superior Court or a jury to say what is a reasonable allowance for the widow's support. I feel that this court is not justified in saying that the evidence presents no circumstance which could fairly move the discretion of the jury in finding that the sum of four thousand dollars per year did not constitute a reasonable provision for this widow's support.
It would be within the province of this court if upon a consideration of the testimony it should regard the finding of the jury excessive in amount to fix upon a reasonable sum and order a new trial unless the petitioner should remit all in excess of such sum. I am forced to the conclusion that the evidence does not warrant this court in substituting its *Page 93 judgment for the discretion of the jury and directing the entry of a decree dismissing the petition.
JOHNSON, C.J., concurs in this opinion.