Succession of Egan ( 1880 )

Marr, J.

There is no evidence that the executor even acknowledged Donnelly’s claim in any way. It was left with the attorney of the succession who says as a witness, “I don’t suppose there is a single claim in the account that the executor knows anything about any more than a stranger.” The account was filed after prescription had been acquired. The plea must prevail.

The proof is beyond dispute that the widow is in necessitous circumstances, and was at the time of her husband’s death. Four months after her judgment of separation she received a property on Constance Street from Egan in full satisfaction of her claims. Two months later she mortgaged it for two thousand dollars, had the note discounted, and after paying her attorneys, her part of the expenses of the partition, medical bills and other debts, there remained a balance of about sixty dollars. She afterwards sold the property for $3,500, paid off the mortgage, and the residue went into bad investments, as she said — $300 lent to a married woman who never paid her, and $500 to another who paid her in board. Then she lived in families where she was received as a matter of charity. She procured clothing by her labour, and was in this condition when Egan died. The judgment of separation did not divorce the husband and wife. Mrs. Egan was the wife of Egan up to the moment of his death. The law uses the word “widow” without qualification, except that she must be in necessitous circumstances. It does not say the widow not separated in bed and board. The married woman is the wife of her husband until the marriage is dissolved by death or divorce. At his death without divorce she is legally his widow and is entitled to the provision which the law makes for necessitous widows.'

The judgment rejected Donnelly’s claim and allowed the widow’s.

Judgment affirmed.