
    David T. Sherman’s Executor v. Henry Sherman, and Sarah Sherman’s Administrator.
    1. ViChere, under section 45 of the administration act (S. & G. 574-5), appraisers of an estate make an allowance to the widow of a decedent for her sup- ' port for twelve months from his death, such allowance may be reviewed and increased for the benefit of the estate of the widow by the probate court, under section 48 of said act, on petition of a “ person interested,” although the petition for the review be not filed until after the expiration of the twelve months and after the death of the widow.
    2. A person with whom the widow lived during the twelve months, and until her death, and who supported and took care of her and incurred expense for her in her sickness, and who has a valid claim therefor against her estate, is a "personinterested ” in the matter of the review of said allowance,-within the meaning of said section 48.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Delaware county.
    
      David T. Sherman died testate March 9th, 1867, and Ev erett Sherman was qualified as his executor.
    Soon after the testator’s death the appraisers of his estate, in due course of the administration, allowed to Sarah'Sherman, his widow, in money and property, the sum of $450, for her support for one year from the death of the decedent.
    Not long after her husband’s death, but whether before or after the appraisers made the allowance for her year’s support docs not appear from the record, the widow, Sarah Sherman, became physically paralyzed and mentally imbe cile, having no control of herself, and was in such a helpless condition as to require constant attention and nursing day and night, for about seven months preceding her death, which occurred June 20th, 1868.
    Her son, Henry Sherman, took the widow into his family, and supported her from the death of her husband until her own death, and he and his family gave her all requisite care, attention and nursing, requiring almost their entire time. Henry also incurred heavy expense for medicines and othei necessaries for the widow.
    After the decease of Sarah Sherman, the widow, James Lampson was appointed and qualified as administrator of her estate; and Henry Sherman presented to him, as such administrator, an account for said services and expenses. The claim was, under the statute and an order of court, referred to arbitration, and the arbitrators, on August 17, 1869, awarded to Henry $900. This award was confirmed by the common pleas, and judgment rendered thereon.
    Afterward, on the 5th of January, 1870, Henry Sherman filed his petition in the probate court of Delaware county against Everett Sherman, executor of David T. Sherman, setting forth the facts above stated in substance, and also the further fact that the $450 allowed by the appraisers for the widow’s year’s support was insufficient for that purpose, on account of the great labor, care and expense her condition required, and that the additional sum of $600 would be necessary to pay said judgment and costs, and the expenses of the proceeding to increase the allowance. The prayer of the petition is, that the allowance may be increased $600; and that the executor of David T. Sherman may be directed to pay that sum to the administrator of Sarah Sherman, for the benefit of the petitioner, in pursuance of the statute.
    At the hearing, on the petition, in the probate court, on January 26th, 1870, the court found, on the evidence, that the statements of the petition were true; that the widow died June 20th, 1868; that the estate of David T. Sherman was ample to pay a proper and adequate support for one year to the widow; that, in view of her condition during the year, the $450 allowed by the appraisers for her support for the year, was not adequate, and, therefore, increased the allowance $450 more, making the allowance altogether $900, and ordered the executor of David T. Sherman to pay the same to the administrator of Sarah Sherman, and also ordered that said executor pay the costs of the case.
    This order of the probate court was affirmed, on error, in the common pleas, and also in the district court; and the present motion is for leave to file a petition in error to reverse the judgment of affirmance.
    
      Carper & Van Deman for the motion :
    
      After the appraisers of the estate hacl made the allowance of a year’s support to the widow, and after the expiration of the year, and after the death of the widow, her son coming into the probate court as a creditor of the widow's estate, could not legally obtain, under the statute, an order for the increase of the/ allowance made to the widow for the year’s support, to pay his debt; and it can make no difference whether the creditor’s claim is for necessaries furnished the widow during the year or not. S. & C. 574,’5, sec. 47; Adams v. Adams, 10 Metc. 170; Tarbox v. Fisher, Adm'r, 50 Maine, 236.
    
      Poppleton & McElroy, contra:
    S. & C. Stat. 574, 575, secs. 44, 48; Dorah’s Adm'r v. Dorah, 4 Ohio St. 202; Bane v. Wick, 14 Ohio St. 505.
   By the court :

The questions presented in this case are to be determined by a construction of sections 45 and 48 of the administration act. S. &. C. 574,5.

By section 45 it is made the duty of the appraisers to set-off and allow to the widow “ sufficient provisions or other property to support” her twelve months from the death of the decedent.

By section 48, the court “ may, on petition of the widow, or other person interested, review the allowance made to the widow, * * * and increase or diminish the same, and make such order in the premises as they shall deem right and proper,”

These sections of the statute fully empowered the probate court to review and increase the allowance made for the widow’s year’s support, if the action was invoked by a party authorized by the statute to do so, and such action could' be had after the death of the widow.

As to the time within which the petition for review may be filed, the statute does not expressly fix any limitation: and there is none implied, unless from the nature of the proceeding. If the review is to be had “ on petition of the widow,” the petition must, of course, be filed before her death. But if the review be had on petition of a “ person interested” other than the widow, there would seem to be no reason why such petition might not be filed after her death, unless her death puts an end to the right to review the allowance.

In Bane v. Wick, 14 Ohio St. 505, it was held “that where the appraisers neglected to set-off and allow to such widow her year’s support, as required by the statute, and she, after the expiration of the year, dies, without having waived or relinquished her right to such allowance, the same survived to her personal representative.”

If, in such case, the right to have the allowance made, survives the widow, the right to have an insufficient allowance made sufficient must be held to survive her.

Whether the widow’s administrator would or would not be the most proper party to petition for an increase of the allowance, need not be decided. The question, on this point, in this case is, whether it was error in theprobate court to increase the allowance and order the same to be paid to the widow’s administrator, on petition of a person interested as a creditor of her estate, for services and expenses in supporting and taking care of her during the year, and until her death? We are of opinion that such creditor was a “ person interested” in the review of the allowance made to the widow, within the meaning of the statute.

Whether, if no allowance had been made to the widow in her life time, her personal representative could enforce her right to an allowance by a proceeding in the probate court, we are not called upon to determine. But as an insufficient allowance had been made to her before her death, we think the probate court had authority, under the statute, to increase the allowance.

No question is presented as to what effect such increase of the allowance should or should not have, upon what had been done, in other respects, in the course of the administration of David T. Sherman’s estate. Motion overruled.  