
    John W. Overturf, Administrator of Thomas Dugan, deceased, v. Levinia Wear.
    The right of the widow, under section 71 of the act for the settlement of estates, to take personal property at the appraisement, is not limited to the time of making the appraisement, hut may be exercised at any time before the property is put up for sale, within the three months allowed to the administrator for selling the property; and her right is not affected by the changes that may, in the mean time, have taken place in the market value of the property.
    . Motion for leave to file a petition in error to revei’se the judgment of the District Court of Scioto county.
    
      The defendant in error, who was the widow of ThomasDngan, deceased, was the plaintiff in the original action; and the plaintiff in error, who was the administrator of said Thomas, was the defendant.
    The action was brought to recover the difference between the amount realized from the sale of a quantity of corn belonging to the estate, which the defendant sold at administrator’s sale, and the amount at which the corn was appraised, as returned in the inventory.
    The case was submitted to the court on an agreed statement of facts.
    The substance of the agreed statement is as follows: That the making of the inventory and appraisement was-completed on the 24th of December, 1873, the corn having been appraised on the 5th of that month, at thirty-seven-cents per bushel, which was at that time its full value. On the 3d of February, 1874, the plaintiff, as widow, elected to take the corn at the appraisement, and offered to the defendant, as administrator, her note with satisfactory security therefor. In the meantime the corn had raised in value to fifty-two cents per bushel; and the defendant refused to allow her to take the corn on the sole ground of the increase in its value since the appraisement. The administrator’s sale occurred on the 18th of February, 1874, at which time the corn was sold, the widow still being ready and willing to take it at the appraisement.
    The net amount realized by the defendant from the sale,, over and above the appraisement, was $1,036.45.
    The Court of Common Pleas rendered judgment for the-defendant.
    On error, the District Court reversed the judgment, and rendered judgment for the plaintiff, for the net amount realized by the defendant from the sale of the corn over and above the appraisement with interest.
    The present proceeding in error is prosecuted to obtain the reversal of the judgment of the District Court.
    
      W. A. Hutchins, for the motion.
    
      Moore S? Newman, contra.
   By the Court.

We find no error in the judgment of the District Court.

Section 71 of the act for the settlement of estates (S. & ■C. 578), provides, that, “ the executor or administrator shall, within three months after the date of his bond, sell the whole of the personal property belonging to the estate, which is liable to the payment of debts, and is assets in his hands, to be administered, except the following: Eirst, Such as the widow may desire to take at the valuation made by the appraisers, she securing payment to the executor or administrator therefor as other purchasers.” . . .

Section 77 is as follows : “ The executor or administrator shall, previous to such sale, make out a list of all the articles mentioned in the inventory which are liable to sale, in the order set down in the inventory, whether the same are destroyed, taken by the widow at the appraisement, or otherwise forthcoming or not; and some suitable clerk, who is not interested in the estate, shall, at the time of sale, place opposite to each item upon said list the name of the purchaser or purchasers, and the amount for which the item mentioned, or any part thereof, was sold; and if there be any articles on said list which shall not be sold, the clerk shall enter opposite to such article the words ‘ not sold,’ or the words ‘ taken by the widow at the appraisement,’ or other statement according to the fact.” . . .

Under these provisions the widow electing to take property at the appraisement stands on the footing of a preferred purchaser.

The preference consists in her having the privilege of purchasing at the price fixed by the appraisement, instead of being required to buy at the price determined by competition at the sale. In other respects, she is required to conform to the conditions prescribed for other purchasers.

The time prescribed within which the administrator is required to sell the personal property, is three months from the date of his bonds. Such property as the widow may elect to take is expressly excepted from the power of sale. As the time is not prescribed within which the widow must exercise her election, we think that, in cases like the present, she may do so at any time before the property is put up for sale ; and that her right is not affected by the-changes that may in the meantime have taken place in the market value of the property.

Leave refused.  