
    In the Matter of the estate of James P. Shed, Deceased.
    
      (Surrogate’s Court, Chautauqua County,
    
    
      Filed September 8, 1890.)
    
    Executors and administrators—Inventory.
    The deceased died October 10, 1889, leaving a widow and three children of full age. He and his wife had not lived together during ten years prior to his death, and he had not kept house. He left by her three children; a daughter fourteen years old at the time her father and mother ceased living together, and until of age she lived with her mother a greater portion of the time and was boarded by her, her father paying for her clothes but not for her board. Held, that the widow was interested in the estate of her deceased husband, and a member of his family at his death, within the meaning of the statutes relating to widows’ exemptions.
    Motion by a widow to compel return of inventory, and set apart property for her exemptions.
    
      Obed Fdson, for widow, the petitioner; F. W. Stevens, for executor and legatee.
   Sherman S.

The testator died October 10, 1889, leaving real estate of the value of $800 and personal, $3,000, and three children, two sons and one daughter aged 42, 40 and 24 years, respectively ; and a widow aged 65 years, the mother of said children. By his will he bequeathed and devised all his property to his son, Ezra H. Shedd, and appointed him executor. He and his wife had not lived together during ten years previously to his death, and he had not during that time kept house, or had any servants.

At the time he and his wife ceased living together, the daughter was 14 years old, and thereafter lived with her mother the greater part of the time until she was of age, and her mother boarded her and her father paid for her clothing and all her bills, but not for her board.

During a year and a half after such husband and wife ceased living together he did contribute to her support to some extent. Ho cause is assigned for their ceasing to live together as husband and wife, nor for his entire neglect to aid in her support during the eight and one-half years immediately preceding his death. During á portion of said ten years they lived in the same neighborhood but not in the same house.

• Application is made by the widow for an inventory and to order the executor to set apart property to her under the statutes relating to widows’ exemptions, and is opposed upon the grounds that the widow at the time of her husband’s death was not a member of his family, and is in no way interested in his estate, and that the deceased died leaving no family, and therefore that the statute which provides for exemptions by its terms only “where a man having a family shall die leaving a widow or minor child or children, the following articles shall not be deemed assets but shall be included and stated in the inventory, without being appraised,” does not apply to this case upon the undisputed facts stated above.

I am of the opinion that this statute must receive a broader and more liberal construction than that claimed by the learned counsel for the contestant. For numerous legal meanings of the word “family,” see Bouvier’s Hew Law Dictionary, defining such word as used in statutes of different states, and decisions of courts.

The very terms of the statute provide that the family of the deceased testator may consist solely of his surviving wife or minor child. Whether such widow or child may have been living with, and been supported by him at his death, would .seem to be immaterial. There is nothing in this case tending to show that the wife was ever unfaithful to her marriage vows. The whole trend of legal authorities appears to conserve the rights of the widow to her exemptions upon the grounds of public policy, justice and humanity; and the remedial statutes relating to the same must receive a liberal construction.

The legal obligations of the husband compel him to support his wife and minor children. That he did not do it in this case is no argument in his favor, and considering the relation of the parties as husband and wife, every reasonable presumption must be made in her favor. The conclusion would not seem unreasonable that he did fail to keep his marital vows to her. Pierce v. Pierce, 71 N. Y., 154; Vedder v. Saxton, 46 Barb., 188; Fox v. Burns, 12 id., 677 ; Voelckner v. Hudson, 1 Sandf., 215 ; Sheldon v. Bliss, 4 Seld., 31: Lewis v. Smith, 5 id., 502 ; Harper v. Leal, 10 How., 276, 282, 283; Guidet v. Brown, 54 id., 409 ; Curry v. Curry, 10 Hun, 366; Kneettle v. Newcomb, 22 N. Y., 249; Dayton’s Surrogate, 275, 3d ed., quoting decision of surrogate of New York, in point, not reported; Woodward v. Murray, 18 Johns., 400 ; Scofield v. Scofield, 6 Hill, 642; Kapp v. Public Administrator, 2 Bradf., 258.

In the case last cited the court says: “ There is some meaning in the circumstance that the words for use of his family ’ were substituted by the legislature for the words in any dwelling house ’ as originally reported by the revisors.” Matter of Steward, 30 N. Y. State Rep., 438-442, and cases therein cited on question of construction of remedial statutes.

The burden of proof to show that the wife was at fault in the separation rests with the husband. Sears v. Shafer, 6 N. Y., 268; 1 Barb., 408, 417.

To hold that a husband may, by brutal or inhuman conduct compel his wife or minor child to remove from his household and thus sever his family relations with them, and by such acts deprive them of their just share in his property at his death, would seem to be most unjust and absurd.

I direct decree that the executor, Ezra H. Shedd, make and return an inventory of the property of the deceased, as required by law, within fifteen days after service of a copy of such decree on him, and that in default an attachment be issued against him.  