
    Nathaniel Washburn, Appellant, &c. versus Joanna Washburn.
    The object of the allowance to be made by a judge of probate to a widow, out of her husband’s estate, is to furnish a temporary support, and is to be restricted to such an amount as is required by the situation of her family, for their reasonable comfort.
    This was an appeal from a decree of the judge of probate for the county of Plymouth, by which, in virtue of his discretionary power under St. 1805, c. 90, § 2, an allowance of $3000 was made out of the estate of Nathaniel Washburn junior, deceased, intestate, to his widow, the appellee.
    The deceased left no child, and his father, the appellant, was his heir at law. His personal estate was, inventoried at about $ 6000, his real estate was worth about $ 4000, and his debts amounted to about $4000. He was married in 1823, and he received with his wife, furniture worth $500. The rest of his property was acquired by himself, no part of it having been derived from his father. The widow was the daughter of a farmer. She had formerly kept a school. For five or six years she had been in feeble health, and for the last six months had been incapable of making any exertions for a livelihood ; and she had no means of support, except from her husband’s estate. She was about thirty-five years of age.
    
      Oct. '¡¡8th
    
    Eddy, for the appellant.
    
      Warren, for the appellee,
    referred to St. 1805, c. 90, § 2, which provides for the distribution of the personal properly of an intestate, “ after allowing to the widow, if any, her wearing apparel, according to the degree and estate of her husband, and such further necessaries as the judge of probate shall order, regard being had to the state of the family under her care” ; and to St. 1816, c. 95, § 1, which provides, “that in the settlement of the estates of persons deceased insolvent, the widow shall be entitled to her apparel, and such other and so much of the personal estate, as the judge of probate shall determine necessary, according to her quality and degree, and if the estate shall ultimately appear to be solvent, the judge of probate is authorized to make such further allowances, having regard to what shall have been allowed, as is provided in the statute of 1805. He urged that under these statutes the judge of probate was not restricted to a sum which would give the widow the bare necessaries of life, and that the subject being submitted to the discretion of the judge, this Court would not interpose to reverse his decree, except in a strong case of over-allowance.
    Oct. 30th
    
   Per Curiam.

The counsel for the appellee contends, that as the sum of $ 3000 was allowed by the judge of probate, who had power to form an opinion upon all the circumstances of the case, his decree ought to operate as prima facie evidence of the exercise of a sound discretion, and that strong evidence should be required to rebut it. We think that is not the nature of an appeal. The court of appellate jurisdiction is to revise the case upon the evidence produced, uninfluenced by the decision of the court below.

The object of the clauses referred to in the statutes of 1805 and 1816, was to make a temporary provision for the widow. As the word necessary is used, she must be restricted to such an allowance as is required by the situation of her family, for their reasonable comfort. If the widow is accustomed to hard labor, and has no child and can earn her living, a less sum will be necessary ; but if she is not accustomed to labor, or not able by reason of ill health, these circumstances are proper to be considered by the judge, as grounds for a more libera] allowance.

Taking into view the amount of the estate in question, and the fact that the widow is entitled to half of the personal estate not required for the payment of debts, and to her dower in the real estate, we think the allowance of $ 3000 was too much, and that the sum of $ 1000 is enough. She will have besides, $ 500 as her half of the personal estate, and her dower. This will enable her to live comfortably. 
      
       See Revised Stat. c. 65, § 4; Washburn v. Hale, post, 429.
     