Heirs of Sawyer v. Sawyer.

determine the purpose and intent of a statute by the words used, and the connection, and the subject matter. From all these it is very obvious the statute was intended to have a general application.

The exceptions claimed in the present case are, first on the ground of the pension which the widow obtained, as such, upon the decease of her husband. This is not different, in principle, from her being possessed of ability to maintain herself in any other mode, so as not to require assistance from the estate. And indeed the general ability of the appellee, or the widow in this case, from her living with her father, and the wealth of the family, and the very great improbability of his making any personal claim against his daughter for her board, was also alluded to in the argument, and is stated in the case, and seems to us to come fairly under consideration, in the same connection. But we are not prepared to say that any such exception can fairly be engrafted upon the statute, If it had been the purpose of the legislature to allow maintenance only in the case of such widow and children as were without the means of subsistence, in any other mode, it is difficult to conjecture how it occurred that the provision should have been expressed in the general and unlimited manner it here is. It is incomprehensible that, if the provision were intended only for the indigent and necessitous, it should have been made general. It is, at all events. sufficient for us that, the provision being general, it must be allowed to have a general application.

II. Some question was made in the argument, whether the statute did not require the allowance to be made by the court in advance of the expenditure. We do not think that indispensable, or that in practice it is generally done, or that, in the majority of cases, it would be the desirable mode of accomplishing the thing. It is probable, in practice, that the administrator would make the expenditure, as the necessity occurred, and have such sum allowed, in the settlement of his account, as the court deemed reasonable; and this seems to us the fair exposition of the statute.

III A question is made, whether, there being no children, the widow is entitled to such allowance. This would certainly be adopting the most literal construction of the statute; and, in pursuance of the same line of argument, it might almost be inferred, perhaps, that

Sawyer v. Heirs of Sawyer.

as the statute makes the provision only for the widow and children of the deceased, the provision should not extend to a single child. But no such literal interpretation can be allowed in such cases, for we have an exposition of the extent of the provision, in the very next clause of the sentence, " constituting the family of the deceased." If he leave a widow and child, or children, or either, or all, he, or she, or they constitute the family of the deceased, within the purview of the statute. Any other interpretation would savor of a degree of refinement which could not fail to do injustice in its general application, however it might affect particular cases, or a single case. And the analogous provision in the 48th chapter, § 29, in regard to the settlement of testate estates, provides in terms, for both widow and children, or either. "And the probate court may make such reasonable allowance as may be judged necessary for expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator," &c. Unless, then, we are prepared to make a difference in the application of this provision to testate and intestate estates, which we think no one can claim, the statute is perfectly specific upon this point.

In regard to the amount of the allowance, that is a matter resting altogether in the discretion of the probate court, or of the county court upon appeal; and not ordinarily subject to revision, in this court, upon exceptions, the case coming here only, as upon a writ of error. Judgment affirmed.

MARY H. SAWYER, aplt. v. HORACE B. SAWYER AND MARY C. SAWYER, heirs of GEORGE F. SAWYER, deceased.

Wearing apparel.

Descent of the real, and distribution of the

personal estate of deceased persons.

Rights of a childless

widow.

Neither the watch, or its chain, key and seals or the finger ring which were usually worn by a person when living, are to be deemed a part of his wearing apparel, which,

Sawyer v. Heirs of Sawyer.

after his decease, are, by § 1, of chapter 50 of the Compiled Statutes, to go to his widow. REDFIELD CH. J., dissenting. Otherwise of a bosom pin.

Nor are the sword and sword-belt, which an officer in the United States navy wore, in accordance with the regulations of the navy department, to be regarded as a part of his wearing apparel, within the meaning of the above statute; REDfield. CH. J., dissenting. But his epaultes are.

The widow of a person who left no issue is, if his real estate exceeds $1,000, entitled to that sum, and to one half of the residue forever; and she takes this by descent. She is also entitled to one half of the personal property, which is left for distribution.

To entitle her to this distribution, it is not necessary that she should avail herself of the provisions of § 6 of chapter 54 of the Compiled Statutes; nor is her right, in this respect, affected by the first provision in § 1 of chapter 50 of the Comp. Stat., when she claims no assignment under it.

APPEAL from an order of the probate court, in reference to the disposition and distribution of the estate of George F. Sawyer, deceased, intestate.

The intestate, George F. Sawyer, at the time of his decease, and for a period of about twenty years previous thereto, an officer, in active service, as purser in the United States navy, left a sword and sword-belt, and epaulets, which he wore during his life, in compliance with the laws of the United States and the regulations of the navy department, also a watch and watch-key, gold watch-chain, seals, with a black cord watch-chain to which was attached a gold head, a finger ring, and a breast or bosom pin, all of which were usually worn by the deceased on his person, upon all proper occasions, during his lifetime. His widow, Mary H. Sawyer, claimed all the above mentioned articles as part of the wearing apparel of her deceased husband.

The county court, June Term, 1855,-PECK, J., presiding,decided that the watch, watch-key, chain, cord, seals, and the finger ring usually worn by the deceased on his finger, and the sword and sword-belt, were not to be deemed a part of the wearing apparel of the deceased; and that his widow was not entitled to them, as part of his wearing apparel; to which decision the said Mary H. Sawyer excepted.

The court further decided that the epaulets and bosom pin were to be deemed a part of the wearing apparel of the deceased, and that the said Mary H. Sawyer was entitled to them as such; to

Sawyer v. Heirs of Sawyer.

which decision the heirs of the said George F. Sawyer excepted.

It appeared that the intestate died in June, 1852, leaving no children or their legal representatives, and no father, but leaving, among other heirs in the next degree, a brother, Horace B. Sawyer, and a sister, Mary C. Sawyer, who, in their own right, and by assignment and devise, were entitled to all the estate of the intestate, except so much as the widow was, by law, entitled to. The intestate left for distribution, after defraying the expenses of settling the estate and paying the debts, eighteen or twenty thousand dollars, consisting of about two thousand dollars in real estate, and the residue in personal property, mostly in money.

The widow had never made any application to the probate court for dower, or to have any of the personal estate set to her; nor had any been set to her except the wearing apparel of the deceased, as such, and an allowance to her for her support during the settlement of the estate.

The widow claimed that, in addition to the share in the real estate, to which she was entitled, she was entitled to one half of the personal property left for distribution.

The heirs claimed that, by the statutes of this state, the widow was not entitled to any part of the personal estate, and that they were entitled to the whole personal estate.

The court decided that of the real estate the widow was entitled to one thousand dollars, and one half the residue thereof, forever; and that she was entitled to one half the personal esate left for distribution, to which decision the said heirs, Horace B. and Mary C. Sawyer excepted.

A. O. Aldis and H. R. Beardsley for the appellees.

G. F. Houghton and B. H. Smalley for the appellant.

The opinion of the court was delivered, at the circuit session in September, by

BENNETT, J. The statute enacts that, upon the death of the husband, the widow shall be allowed all her articles of apparel and ornament, and the wearing apparel of her husband. I should think it was the intention of the legislature, to include in the terms

Sawyer v. Heirs of Sawyer.

"all the articles of apparel and ornament of the wife," most, if not all those things which, at the common law, go to make up her paraphernalia, which, it is well understood, is of two kinds, clothing, bedding, &c., suitable to her condition in life, and secondly, her ornaments. But when, in contrast to this language, they simply give her the wearing apparel of her husband, I think the legislature intended the term should be used in a more restricted sense, and be confined to its popular meaning, and include only such articles as may be properly termed the clothing of the husband, in contradistinction to ornaments. The primary motive of the legislature in giving the wearing apparel of the husband, upon his decease, to the wife, was not to make a provision for her support, but to save her from the mortification of seeing his apparel the subject of disposition or sale, as the case might be, for the benefit of creditors, which, ordinarily, would be but of little use to creditors, but in the case of ornaments, which many times are expensive, there may be a strong equity why creditors of an insolvent estate should have the benefit of them. The county court held that the watch, watch key, watch chain, cord and seals, and the finger ring, and the sword and sword belt, were not to be deemed a part of the wearing apparel of the deceased husband, and a majority of the court think this was a sound construction of the statute. They seem to me to fall clearly within the category of ornaments. To call them wearing apparel would be, as it appears to me, to give a latitudinarian meaning to the term, which the legislature never intended it should have. Though a watch may have a further use than mere ornament, yet that is not enough to make it and its incidents wearing apparel. The finger ring is peculiarly matter of ornament; and we are disposed to consider the sword and sword belt but emblems of distinction worn on special occasions, and which were in no way attached to the wearing apparel, so as to become a part of it. The belt may well be regarded as an incident to the sword. The regulations of the navy require them to be worn in foreign courts, purely as a badge of distinction. The epaulets were attached to the coat, which must be regarded as wearing apparel, and may well follow their principal. So with the bosom pin, it is attached to the shirt, and serves to keep it in place, and there is no showing in the case that the pin was of an