Slack v. Slack

Colt, J. The evidence upon which the decree of the Chief Justice was based has not been reported. The report states all the facts deemed by him to be material on the question presented. All inferences of fact, and questions of discretion as well as of law, involved in the decree, are open to revision upon this appeal. But the decision of the single judge on questions of fact in a probate appeal, as in a suit in equity, will not be reversed, unless it is clearly shown to be erroneous. Wright v. Wright, 13 Allen, 207. Allen v. Allen, 117 Mass. 27. The statute gives a discretionary power to the judge of probate to make such allowance to the widow as he shall judge fit for the supply of necessaries for her use, “ having due regard to all the circumstances of the case.” The question how much shall be allowed must depend upon the varying circumstances of each case, with reference to wMch no general rule can well be stated. The fact that the parties lived separate, or which party was the culpable cause of the separation, may have little application to the question. “ The allowance,” as remarked by Shaw, C. J., in Hollenbeck v. Pixley, 3 Gray, 521, “ is not made to the widow as a reward for faithful service as a wife ; nor is it given out of the husband’s estate as compensation to her for ill treatment by him as a husband; but it is a question solely of her actual necessities.” Gen. Sts. c. 96, § 5. There is nothing in the facts reported in this case, which leads us to think that the decree of the Probate Court, or of the Chief Justice of this court, ought not to be affirmed. And there was no error in the ruling of the Chief Justice which confined [446] the evidence offered by the appellant to the issues .raised by L. reasons of appeal. The widow having prevailed in this case, as in Allen v. Allen, 117 Mass. 27, in two successive appeals from a decree granting her an allowance, the decree of the Chief Justice, affirming the decree of the Probate Court, should he Affirmed, with costs.