Welch v. Welch

Lathrop, J.

This case comes before us on an exception to the refusal of the single justice of this court, who heard the case on appeal from the Probate Court, to rule that on the whole evidence the petitioner was not entitled to an allowance. The amount of the allowance, if any was to be made, is not raised by the bill of exceptions.

The power to make an allowance to a widow from the personal estate of her deceased husband is given by the Pub. Stsl c. 135, § 2, and is-to be made “ having regard to all the circumstances of the case.”

The only possible grounds on which it can be urged that the widow was not entitled to an allowance are the fact that she had lived apart from her husband for some years, and the delay in filing her petition. As to the first ground it is settled that a separation continued down to her husband’s death makes no difference. Slack v. Slack, 123 Mass. 443 . See also Chase v. Webster, 168 Mass. 228, 231 .

Nor is a delay in filing the petition necessarily a bar. Allen v. Allen, 117 Mass. 27 , where there was a delay of two years. Lisk v. Lisk, 155 Mass. 153 , where there was a delay of two years and eight months. In the present case there was a delay from July 9, 1899, until December 21, 1900. This delay was accounted for by the fact, as testified to by the petitioner, that negotiations between her and the heirs of her husband’s estate, for a compromise, were pending. See Ryder v. Loomis, 161 Mass. 161, 163 .

Exceptions overruled.