The Portland daily press., 1899-04-05
THE SMALL ESTATE.
Law cour, Hands Down Rsscript In
ImPcrtrnt Case.

hFVEtEflt NV
An important rescript was handed down
by the Law court Tuesday fEx-f ost-
master John G small was appellant in
this case. the estate involved being that
of his brother
Cumberland 81.
John q. small, appellant, from decree
of Judge OF probate relating TO the first
account Of Harriet n. small. executrix,
Sc.
Rescript by wiswell, j A testator de-
yised and begueathed to bis widow. Tor
her life all Of his estate after the pay
ment of debts. funeral expenses ana the
charges of administration, With power
of disposal of the same as she might deem
necessary, the remainder to his children
and their heirs. she was also naneu as
executrix of the viii.
After the death of the widow. she
having survived the testntor soins ten
years, her executor presented 10 the FRO
bats court her account rs executrix,
which was object d to by the appellant
the administrator de bonis non OF the
estate of the testator, with the will an
nexed. Upon a hearing in the probats
court the executrix was charged with the
sum OF si2,2l5.75. she was credited with
items amounting TO 81, is4. 53 for debts Of
the testator, expenses of his last sickness
administration. She was also credited
with large numter Of items aggregafing
$40, 800 20 for expenses incurred and paid
| by the executrix Tor her own support,
comfort and use. Items amounting to
| 81, 223.27 for taxes ana repairs upon the
real estate of the testator were also al
lowed to the credit of the exeoutrix, and
che was credited with q certain amount
| for depreciation of household goods anu
| of bonds with other allowances, so that
| In the account as finally settled and al
| lowed in the probate court she was
credited In all with the sum of sls,163 ~,
| leaving IA balance in favor OF the deceased
e3ecntrix OF So.a 5e.
From the allowance of this account an
appeal was taken by the adIninistIa or dc
bonis non with the will annexed, and mt
the bearing in the Supreme court of pro.
| bnte the court held that the will and
codicil gave to the widow a life estate IN
all the property OF the tostatDr after ray
| uent of debts. funeral exInses AMI
charges of administrator. with power
of sale and disposal thereof as she migi {
choose and that at her decease any
property of the teststor remaining In h,r
hands goes to his heirs at law, and that
any personal property SO remaining
should lie delivered to his administrators
de bonis non for that purpose. The court
found that at the lime Of the death of the
| exeoutrix there remained in her hands,
| undispose1 of, certain articles OF personal
property, enumerated In the decree, which
were portion OF the estate or the tests-
| tor.
The court made decree in which the
appeal was sustained, the decree below re-
versed and the cause remandei TO the pro-
bate court to proceed In accordance with
| the decree: %. O as to charge the appellee
| with the personal property above enumer-
atea which may be subjected to the
charges of administration not actually
| paid by the extcutrix in her lifetime and
| then paid or delivered to the administra-
| tor of the testator. Horatio y. small, de
bonis non, by him to he applied TO the
payment of the debts of said Harriet n.
Small 1.-THE deceased widow and Ter
| funeral expenses, the charges. of admins
| tration and then distributed among the
hairs at law of said Horatio y. Small
| 1.-THE testator) rs prov ided in his will. -
Upon exceptions to this decree IL Is
| held that the principle which should con
troll tbs set cement and allowances of this
account depended upon the will of the
| testator and the construction piacfd there
| on and that the supreme court Of probate
could not have passed. intelligently upon
| tn questions before 1t on appeal without
| fret ascertaining by construction of the
will therights of the devisees Hereunder
and that nothing further was done by the
court In this respect than was necessary
| for that purpose.
That under the will and codicii the
widow took u life estate with an nm
limited power to dispose of 1t FOR her
| benefit" SO far as she may deem 1T necss-
| sary That she was the absolute Judge OF
| the necessity but that this power OF dis
posal must be exercised during the enjoy
| ment of the life estate, except TO the ex-
tent. because of the provision In the will,
| of the pay mens of detts owing by the life
tena mt at the time Of her death, and her
| funeral expenses.
That the objection Of the appellee to the
finding of tact by the justice presiding at
nisi priu ~ no heard the appeal without a
Jury, as 10 the existence in specie of Ger
tain articles Of personal property belong
ing to the estate of the testator, "a not
open to the Appellee upon misconceptions.
That the decree is sufficiently definite
to determine the rights of ali persons
affected by it. BY that decree the deceasfd 4
executIix Is not made chargeable with
any portion of the estate of the testntor
which she had disposed OF during her life.
as she had right to under the Will. bat
only with such articles Of personal
property belonging to the estate Of the
tsstator as the court found had been I'M
disposed OF by her and which remained in
specie at the time of her death, and the
only duty to be performed by her per-
sonal representative, according TO the de-
cree, is to account for such articles
This duty and its extent is clearly ex-
resstd in the decree. Decree affirmed
with costs.