Moseleyv.Harper

Not overruled or negatively treated on appealinfoCoverage
Supreme Court of Mississippi, Division AOct 20, 1947
202 Miss. 442 (Miss. 1947)
202 Miss. 44232 So. 2d 192

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No. 36524.

October 20, 1947.

1. EXECUTORS AND ADMINISTRATORS.

Appraisers' allowance to deceased's widow for year's support is advisory to, but not binding on, chancellor (Code 1942, sec. 561).

2. EXECUTORS AND ADMINISTRATORS.

In determining amount of allowance to deceased's widow for year's support, chancellor should exercise sound judicial discretion, considering value of deceased's estate, rights of others having interests therein, manner of living to which widow was accustomed during deceased's life, her station in life, and demands imposed on her by such station (Code 1942, sec. 561).

3. EXECUTORS AND ADMINISTRATORS.

Evidence of widow's actual and estimated expenses for repairs, taxes, and insurance on her separate property, clothing for herself, etc., warranted chancellor's refusal to increase appraisers' allowance of $5,000 to widow for year's support (Code 1942, sec. 561).

APPEAL from the chancery court of Hinds county. HON. V.J. STRICKER, Chancellor.

Satterfield, Ewing Hedgepeth, and Frank Williams, all of Jackson, for appellant.

When there is testimony in the record that is not improbable, the chancellor should accept it unless contradicted.

Crichton v. Halliburton Moore, 154 Miss. 265, 122 So. 200; Stevens v. Stanley, 153 Miss. 809, 154 Miss. 627, 122 So. 755.

The chancellor could (and should) properly take into consideration the manner of living to which the widow, during the life of her husband, had become accustomed, her station in life and the demands which such station imposed on her.

Whitehead v. Kirk, 106 Miss. 706, 64 So. 658.

The separate property of the wife and income from the estate may not be considered in fixing the year's allowance to the widow.

Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371.

The action of the appraisers in fixing the widow's allowance is advisory only.

Prentiss v. Turner, 170 Miss. 496, 155 So. 214.

While it is true that the fixing of the widow's allowance is in the discretion of the court, this means a sound judicial discretion according to law.

Board of Mississippi Levee Commissioners v. Kellner, 189 Miss. 232, 196 So. 779; Gerard v. Gill et ux., 195 Miss. 726, 15 So.2d 478; Sioux Falls v. Marshall (S.D.), 204 N.W. 999, 45 A.L.R. 447; Edwards v. Knight (Fla.), 139 So. 582; Dixie Music Co. v. Pike (Fla.), 185 So. 447.

A.Y. Harper, of Jackson, for appellee.

The amount to be allowed to a widow for one year's support from the estate of her husband is within the sound discretion of the chancellor.

Whitehead v. Kirk, 106 Miss. 706, 64 So. 658; Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371.

The award made by the chancellor was an exercise of sound legal discretion.

Prentiss v. Turner, 170 Miss. 496, 503, 155 So. 214; Morgan v. Morgan, 36 Miss. 348; Gilmer v. Gilmer, supra.

Argued orally by Frank T. Williams, for appellant, and by A.Y. Harper, for appellee.


Niles Moseley departed this life, testate, June 8, 1946, leaving an estate, real and personal, of the approximate value of $400,000, one-half of which, by his will, he left in trust for his widow, the appellant. The appraisers allowed the widow five thousand dollars for a year's support. She petitioned the Chancellor to increase that to eighty-five hundred dollars. The trustee, appellee here, resisted the increase. The Chancellor denied the petition and approved the amount fixed by the appraisers. The widow appeals from that decree.

Section 561, Miss. Code 1942, authorizes and directs the appraisers to allow the widow a sufficient amount for her comfortable support for one year. Such allowance by the appraisers is advisory to, but not binding upon, the Chancellor. Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371; Prentiss v. Turner, 170 Miss. 496, 155 So. 214. The Chancellor, in determining the amount, should exercise a sound, judicial discretion, taking into consideration the value of the estate, the rights of others having an interest therein, the manner of living to which the widow, during the life of her husband, had been accustomed, her station in life and the demands which such station imposed upon her. Whitehead v. Kirk, 106 Miss. 706, 64 So. 658. The parties hereto recognize these rules and principles but appellant says the undisputed proof on the hearing of this petition showed that the sum allowed was not sufficient for her comfortable support and maintenance in the manner of living to which she had been accustomed. She was the only witness. She exhibited to the court an itemized statement of the expenses she says she had incurred from the date of the death of her husband to the time of the hearing. That aggregated $6,414.75.

She also exhibited an itemized statement of expenses she estimated would be incurred from the time of the hearing to June 8, 1947. That amounted to $3,079.50. We have carefully examined and considered the nature of the items and cost thereof on both lists, as no doubt the Chancellor did also. Both lists contain a number of items which, by their nature, are not such as come properly within an allowance to the widow for her support, such as, for instance, repairs, taxes and insurance upon her separate property, aggregating several hundred dollars; the purchase of a lot and clothing for burial of the decedent, the latter two items being properly obligations of the Executor if lawfully incurred and presented. And such examination of the lists further discloses that, as to the items the nature of which come properly within such allowance, the costs thereof are excessive — at least, that the Chancellor, in the exercise of a sound discretion, was justified in so concluding. For example, the items for clothing alone, already purchased and contemplated to be purchased, aggregate $2,541. We can well understand the Chancellor might have thought so large an amount unnecessary for clothing for one year. We could mention other items which, by their nature, are not within such an allowance and which, although they be of such character, are excessive in amounts. All in all, while we think the Chancellor would have been justified in allowing a greater sum than he did, we can not say that his refusal to do so was a manifest abuse of discretion, especially since it was his duty to protect the rights of other persons interested in the estate along with the rights of the widow. However, the adjudication herein shall not bar or affect whatever right appellant may have to reimbursement out of the estate for expenditures incurred or paid by her which are legal obligations of the Executor.

Affirmed.


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