The questions arising upon the construction of the will under which this legacy is sought to be enforced are by the finding of the jury upon the issue submitted to them as to the past damages somewhat more restricted than would have been presented if Mrs. Everett had voluntarily and unnecessarily withdrawn from the homestead of her late husband, and declined to receive her support and maintenance there.
The counsel having discussed the more general question of the rights of Mrs. Everett under the will, we have considered the two questions: 1. Whether Mrs. Everett was restricted to receiving her support and maintenance at the late homestead, in case the executor was ready and willing to furnish the same there ? 2. Is that support to be furnished in respect to her ability to do useful and suitable labor in aid of such support ?
A review of the various cases cited by the counsel leads to no other result than that each case must be decided very much upon its own facts, looking at the language of the will and the jurrounding circumstances.
In the present instance, although it is highly probable that it <vas the expectation of the testator that the support would be furnished at the place of his last residence, yet there is nothing *97in the terms of the will giving it such a locality. Had there been a devise to the widow of a part of the house for her occupation, this would have strongly indicated a purpose of the testator that she should there receive her support. But the homestead was devised to the son, David W. Everett, under such terms as gave him the entire estate in the same, subject only to the charge thereon of the bequest to the plaintiff of her support and maintenance. In the opinion of the court, the plaintiff is not confined to a residence at the homestead of her late husband, but may demand her support to be furnished elsewhere, under reasonable limitations. In estimating however the extent of that support, the facts of the existence of a small homestead, in which the parties lived, and the arrangement, if any had been made, as to the occupation of the same by the son in the lifetime of the father, will have their proper influence.
The remaining inquiry, whether an adequate support is to be furnished her, independent of her own resources, or of the aid which she might contribute by the labor to which she had been accustomed, and which was suitable and proper for her under all the circumstances of her age, health, &c., must be decided in reference to the peculiar facts existing in the case. The estate owned by the testator was a very small one, not exceeding in value one thousand dollars, and the testator and his wife were accustomed to labor. The widow, though somewhat advanced in age, was of competent health and strength to perform useful labor, and thus aid in her own support. We think in estimating the sum to be paid for the support and maintenance of Mrs. Everett, the testator having in his will defined that to be “ all that may be necessary for her comfort,” we may properly answer the second question in the negative. The effect of this will be that some regard is to be paid to this circumstance, and she is not to be necessarily exempt from all labor, but at the same time the labor can only be such as is entirely suitable for a woman of her age, health and condition in life, and such as was contemplated by the testator in the bequest made for her benefit. Damages to be assessed accordingly.