Hopkins v. Long

By the Court. Warner, J. delivering the opinion. [1.] The only question made by the record in this case is, whether the widow and child of the testator are entitled to a reasonable support and maintenance, for twelve' months next ensuing after his death, out of his estate, under the provisions of the Act of 1838. The Court below ruled, that the Act applied to insolvent estates only, and not to solvent estates. We are of the opinion, from a careful reading of the enacting clause of the Statute, when taken in connexion with the title thereof, that it was the intention of the Legislature to make provision for the support and maintenance of the widow and children of the testator or intestate, for the space of twelve months immediately [263] after his death, according to their rank and condition in life, whether the estate be solvent or insolvent. The Act is entitled “an Act for the relief and support of widows and orphans out of the estates of their deceased husbands and parentsP The Act declares, that “ when any person shall die, leaving a widow and children, or a widow or child, it shall and may be lawful for the executor or administrator thereof to allow, out of the effects of such deceased person, a reasonable support and maintenance for the space of twelve months next ensuing immediately after the death of such testator or intestate, notwithstanding any debts, dues or obligations of said testator or intestate. Pamphlet Laws of 1838, 201. It will be perceived that the widows and orphans of solvent testators or intestates, are embraced in the general words of the Act, as well as the widows and orphans of insolvent testators and intestates ; besides it cannot always be ascertained, until at least twelve months after the death of the testator or intestate, whether his estate will be solvent or .insolvent, and in that event, the widow and children would be left to the mercy of the executor or administrator, who would be quite as likely to look to his own safety and the interest of the -creditors of the estate, as to the immediate wants of the widow and children. The widows and oiphans of solvent testators and intestates, are not made an exception in the Statute, and we shall not make them so by judicial legislation. Let the judgment of the Court-below be reversed.