*In a case, however, where a husband gave directions to his bankers to invest a sum of money in the funds, in the joint names of himself and wife, and their brokers accordingly made the purchase; Lord Langdale M. R. held that the wife was entitled to the stock by survivorship, although the husband died after the contract, but before the transfer had been completed. (d) Those gifts of money by the husband to the wife for clothes, or to purchase ornaments, or for her separate expenditure, which are usually called pin-money, (e) will be good in equity as against the husband, and all volunteer claimants through him. (ƒ) Pinmoney: and similar from hus wife: Similar allowances have been supported in equity; as where the husband voluntarily allowed the wife to dispose and allowances make profit of all such butter, eggs, poultry, pigs, fruit, band to and other trivial matters arising from a farm (over and besides what was used by the family) for her own separate use, calling it her pin-money; out of which the wife saved 1007.; which the husband borrowed, and died; Lord Chancellor Talbot decreed, that there being no deficiency of assets to pay debts, the widow should come in as a creditor for the 1007.; and the court mentioned the case of Calmady v. Calmady, where there was a like agreement made betwixt husband and wife, that, upon every renewal of a lease by a husband, two guineas should be paid by the tenant to the wife, and this was allowed to be her separate money. (g) See also in Mangey v. Hungerford, (h) the wife had saved a considerable sum of money out of housekeeping, and in a suit instituted against her for a discovery of what she had saved, she insisted by answer that she was not bound to * make such a discovery; and upon exceptions to the answer, it was held sufficient by Lord King. coverture as her separate property, and refraining to exercise the right which the law gives him to take from her such property and use it as his own; and by making gifts himself to his wife. Bent v. Bent, 44 Vt. 555. See Hoyt v. Parks, 39 Conn. 357; Teague v. Downs, 69 N. Car. 280; Fowler v. Rice, 31 Ind. 258; Bergey's Appeal, 60 Penn. St. 408; Child v. Pearl, 43 Vt. 224; Goree v. Walthall, 44 Ala. 161; Goodrich v. Goodrich, 44 Ala. 670.] (d) Vance v. Vance, 1 Beav. 605. (e) As to the nature of pin-money, see the elaborate observations of Lord Brougham C. in Howard v. Digby, 8 Bligh, 224; S. C. 2 Cl. & Fin. 634. (f) 2 Roper Husband & Wife, 132, 2d ed. (g) Slanning v. Style, 3 P. Wms. 339; [Hubbard J. in Adams v. Brackett, 5 Met. 285.] (h) 2 Eq. Cas. Abr. 136, in margine. acquired by wife after a protection or There has already (i) been occasion to show that, property under the divorce act, 1857, s. 25, property acquired by a wife, after obtaining a protection order, may be disposed of by her in all respects as a feme sole. der under divorce act: savings out money and of pin other allowances, when lia ble to hus debts: It often happens that pin-money is settled on the wife by agreement previous to marriage; in which case it falls under a different consideration; and upon the principles already explained, the savings by the wife out of it will be protected as her separate property, not only against the husband and volunteer claimants through band's him, but also from his creditors. But if the wife, by good management, effect savings out of her pin-money or other allowance made by the husband, not in pursuance of an antenuptial contract, such savings, as well as jewels so purchased by the wife out of them, will not, it should seem, be exempt from the husband's debts, but will be assets for the purpose of satisfying them, in the hands of his executors, (j) although protected from voluntary claims. what re If pin-money be in arrear, and the husband dies, the wife may claim the arrears against her husband's representatives; arrears of though such claim cannot, generally speaking, be carried pin-money, farther back than one year's income; (k) which restric- coverable. tion appears to have been founded partly on a supposed satisfaction by acquiescence, on the notion of the consent of the wife, to make it a common fund for the expense of the family; () and partly on the consideration, that the money is meant for the dress and ornament of the wife, in a mode suitable to the degree of the husband, so as to maintain his dignity, and not for the accumulation of the fund; so that if the wife does not choose to expend the money for the purpose to which it was appropriated, viz, to support his and her rank in society, she cannot justly claim the arrears of it. (m) Again, if pin-money be in arrear, and the wife (i) Ante, 59. (j) Willson v. Pack, Prec. Chan. 297; and see Lady Tyrrell's case, 1 Freem. 304, where Lord Keeper Finch held that jewels bought by the widow, out of the savings of a yearly sum allowed by her husband for her own expenses, were liable to his creditors. This decision has been considered by Mr. Hovenden, in his edition of 2 * Freeman, to be effectually overruled by Herbert v. Herbert, and Wilson v. Peck, but these cases, it should seem, only apply to allowances settled before marriage. (k) Peacock v. Monk, Ves. sen. 190; Thrupp v. Harman, 3 My. & K. 513. (1) Brodie v. Barry, 2 Ves. & B. 36. (m) 2 Cl. & Fin. 657; S. C. 8 Bligh, 249. dies, her representatives cannot sustain any claim for it whatever; the ground of which rule is, that the pin-money was not meant for the sustentation of the wife, but for her dress and ornament in a station suitable to the degree of her husband. The authorities connected with this subject, and the nature of pin-money in general, were fully discussed and commented on in the arguments of counsel and the judgment of Lord Brougham in a late case relating to the arrears of the pin-money of the Duchess of Norfolk. (n) Her grace was entitled, under the trusts of the settlement made in contemplation of her marriage with the duke in 1771, to two annuities of 7001. and 3007., charged by way of pin-money, upon estates to which the duke was entitled for his life. The duke received all the rents and profits of the estates, and maintained the duchess according to her rank, up to the time of his death in 1815. In 1816, the duchess was found to have been a lunatic, without lucid intervals, from 1782, and she continued so until 1820, when she died intestate. Her personal representative claimed from the personal representative of the duke arrears of the pin-money, from 1782 to 1815. And it was held by the house of lords, reversing the decree of the vice chancellor, (o) that the personal representatives of the duke would have been entitled to set off any payments made by the duke in respect of the personal expenses of the duchess, against a claim for the arrears of her pin-money by her, if it had been made on her behalf during her lifetime, and that the personal representative of the duchess was not entitled to any arrears whatever. (o1) Another instance where the wife may acquire a property in her Parapher husband's personal chattels, by gift from him, so as to exclude his executors or administrators, is to be found. in her paraphernalia. (02) The term is borrowed from the civil nalia: (n) Howard v. Digby, 2 Cl. & Fin. 234; S. C. 8 Bligh, 224. See, also, Jodrell v. Jodrell, 9 Beav. 45; [Miller v. Williamson, 5 Md. 219, 236.] (0) Digby v. Howard, 4 Sim. 588. (o1) [See Miller v. Williamson, 5 Md. 219, 236.] (02) [By statute, in Massachusetts, the widow and minor children of a deceased person are entitled to their articles of apparel and ornament. And the judge of the probate court may allow to the widow such parts of the personal estate of the deceased, as he, having regard to all the circumstances of the case, may deem necessary for herself and family under her care, not exceeding fifty dollars to any child; and the statute also declares, that "such provisions and other articles as are necessary for the reasonable sustenance of his family, and the use of his house and the furniture therein, for forty days after his law, and is derived from the Greek, wapɑ pepvŋ, i. e. something which she is entitled to over and above dower. Our law uses it to signify the apparel and ornaments of the death, shall not be taken as assets for the payment of debts, legacies, or charges of administration." Genl. Sts. c. 96, §§ 4, 5. See Shaw C. J. in Washburn v. Hale, 10 Pick. 431-433; Adams v. Adams, 10 Met. 170; Fisk v. Cushman, 6 Cush. 20, 28 The authority of the probate court to make the allowance is not limited to intestate estates. It is given in all caseswhether there is a will or not, whether the widow waives the provisions of the will or not, whether there is a residuary clause or not-provided there is personal estate from which the allowance can be made. The allowance for necessaries for the widow, for the use of herself and the family under her care, and that of sustenance of the family of the deceased for forty days after his death, are put on the same ground. Thomas J. in Williams v. Wil liams, 5 Gray, 24, 25. She is entitled to receive the allowance, made her by the judge of probate, in priority to the pay ment of the debts, the expenses of the last sickness and funeral, and charges of settling the estate of the deceased. Kings bury v. Wilmarth, 2 Allen, 310. The allowance can be paid to her only out of the personal estate. Paine v. Paulk, 39 Maine, 15. And a second allowance may be made at any time before the personal estate is exhausted. Hale v. Hale, 1 Gray, 518. But the judge of probate has no authority to revoke a decree once passed by himself, making an allowance to the widow, and to pass a new decree for a smaller allowance to her. Pettee v. Wilmarth, 5 Allen, 144. In Wright v. Wright, 13 Allen, 207, Gray J. said: "The allowance which a judge of probate is authorized to make to a widow out of the personal estate of her husband is principally intended for the present support of herself and her family, if any, while the estate is in process of settlement and is usually moderate in amount, and made by the judge of probate in a summary manner soon after her husband's death." what are so considered: Washburn v. Washburn, 10 Pick. 374 ; Drew v. Gordon, 13 Allen, 122; Adams v. Adams, 10 Met. 170; Barrows J. in Kersey v. Bailey, 52 Maine, 201; Foster v. Foster, 36 N. H. 437; Hubbard v. Wood, 15 N. H. 74; Mathes v. Bennett, 21 N. H. 188; Kingman v. Kingman, 31 N. H. 182. No notice of the application of a widow for an allowance is required by the statute, except upon a grant of special administration; and the practice of the probate courts in the different counties has not been uniform upon this subject; although the better practice no doubt is not to make an allowance of any unusual amount without notice to all parties interested. In many cases notice to the executor is sufficient to protect the interests of all concerned. Gray J. in Wright v. Wright, supra. In Adams v. Adams, 10 Met. 171, Shaw C. J. said: "We are of opinion that this provision [for allowance] 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." In this case it was held that the death of the widow, while an appeal from the decree making the allowance was pending, put an end to the claim. See Drew v. Gordon, 13 Allen, 120; Schaffner v. Grutzmacher, 6 Iowa, 137; France's Estate, 75 Penn. St. 220, 226; Ex parte Dunn, 63 N. Car. 137; Cox v. Brown, 5 Ired. Law, 194. But see Dorah v. Dorah, 4 Ohio St. 292; Bane v. Wick, 14 Ohio St. 505. But her claim, being established by a decree of the judge of probate, may, after a demand and refusal, be enforced by an action brought by her against the executor. Drew v. Gordon, supra. For considerations, which should affect and guide the discretion of the probate court in making and even under circumstances in refusing the above allowance to wife, suitable to her rank and degree. (p) What are to be so considered, are questions to be decided by the court, and will depend upon the rank and fortunes of the parties. (q) the widow, see the observations of Shaw C. J. in Hollenbeck v. Pixley, 3 Gray, 524, 525; and of Barrows J. in Kersey v. Bailey, 52 Maine, 198, 200-202; Washburn v. Washburn, 10 Pick 374. In Washburn v. Hale, 10 Pick. 429, it was held that the administrator could not lawfully charge in his administration account, expenses paid in support of the intestate's widow. This case contains a series of wise and highly practical observations by Chief Justice Shaw, touching the duty of administrators in reference to the allowance and advances to the widow and family of the deceased. See Brewster v. Brewster, 8 Mass. 131. In Kersey v. Bailey, 52 Maine, 199, Barrows J. remarking upon the claim of a widow to an allowance out of her deceased husband's estate, said: "The judge is empowered by the statute to make her an allowance, in the case of an intestate estate, or of any testate estate which is insolvent, or in which no provision is made for the widow in the will of the husband, or where she duly waives the same, of so much of the personal estate as he deems necessary, according to the degree and estate of her husband and the state of the family under her care, and she shall be entitled to so much as he determines in the exercise of his judicial discretion she shall have. But any petition of this sort is addressed to the discretion of the judge of probate, and is to be considered in the light of all the circumstances of the particular case, and the judge may make an allowance larger or smaller as the case may seem to require, or dismiss the petition altogether, if it ap (p) 2 Bl. Com. 436. A bed is also in some authors enumerated among the paraphernalia. Com. Dig. Baron & Feme, F. 3. Noy enumerates "all her apparel, her bed, her copher, her chains, borders, and jewels." Max. c. 49. And Swinburne mentions the ancient and general pears that, all things considered, no allowance ought to be made." An allowance was refused in this case; and so an allowance was refused in Hollenbeck v. Pixley, supra. This discretion is a legal discretion, to be judiciously exercised by the judge of probate, subject to appeal to the supreme court of probate. Wright v. Wright, supra; Piper v. Piper, 34 N. H. 563; Kersey v. Bailey, supra; Washburn v. Washburn, 10 Pick. 374. In Vermont it is held that the statute provision for the support of the widow and children of intestates is of universal application, and the discretion of the court extends only to the amount of the provision. Sawyer v. Sawyer, 28 Vt. 245. An administrator who has paid over to the widow the allowance decreed to her, is entitled to have the same allowed in his account. Richardson v. Merrill, 32 Vt. 27. In Georgia the widow and children of an intestate are entitled to one year's support out of his estate, without regard to its insolvency, and although it may be mortgaged beyond its value. Silcox v. Nelson, 1 Geo. Decis. 24; Cole v. Elfe, 23 Geo. 235; Elfe v. Cole, 26 Geo. 197. She is entitled to support out of the estate only for that period, whether she obtains it with or without application, or partly before and partly after application. Blassingame v. Rose, 34 Geo. 418; Wells v. Wilder, 36 Geo. 194. Under the statute of Mississippi allowing a year's provision to the widow of a deceased insolvent, the commissioners appointed by the probate judge to select and set them apart may allow her a sum of money in lieu thereof, York, as extending “not only to their apparel, and convenient bed, but a coffer with divers things therein necessary for their own persons." Pt. 6, s. 7, pl. 5. (9) 2 Rop. Husband & Wife, 141, 2d ed. [See Sawyer v. Sawyer, 28 Vt. 249; Vass v. Southall, 4 Ired. (Law) 301.] |