The judge of probate for this county, having made an allowance to the original petitioner, Hannah Adams, widow, the executors took an appeal; and before the sitting of the appellate court, the widow deceased. The question is, whether her administrator can now come in and claim the allowance; and this, we think, depends upon the question, whether the right to such allowance survives.' This depends on Rev. Sts. c. 64, $ 1, and c. 65, § 4, as modified by St. 1838, c. 145. This provision for a widow, for necessaries, to be made at the discretion of the judge of probate, is not *171to be confounded with her distributive share of intestate estate. That is a vested right of property, which she takes by a title as high as that of a child or other next of kin; and it goes to her personal representative. Foster v. Fifield, 20 Pick. 67.
We are satisfied of the correctness of the views of the revising commissioners on this subject, in their report, in notes to c. 65. “ This allowance,” say they, “ for necessaries is not intended to compensate the widow for any apparent injustice to which she may, in any case, be exposed by the statute rules of distribution, or by the will of her husband ; but merely to furnish her with a reasonable maintenance for a few weeks, and with some articles of necessary furniture, when she is not otherwise provided with them.”
On the whole, though there may have been some fluctuating views on the subject, we are of opinion, that this provision is intended for the present relief of the widow, for the maintenance of herself and children; that it is temporary in its nature and personal in its character, and confers no absolute or contingent right of property, which can survive her, or go to her personal representative. Upon no other ground could this provision be rescued from the imputation of injustice ; as it would in many cases operate to take property, even from creditors already suffering from the insolvency of their debtor — a class always most highly favored. As a small, temporary, personal allowance to a widow left in distress by the decease of her husband,- out of articles of little value, most useful to her, but which would do very little towards increasing the fund for creditors, till some arrangement can be made, it is an equitable provision.
The decree of the court below was vacated by the appeal, and could only be revived by a decree of this court. But as the decease of the widow put an end to the claim, before the decree could be so revived, all further proceedings must be stayed.