
    Samuel McNulty, administrator de bonis non of Wright B. Orr, deceased vs. Martha N. Lewis.
    The act of 1839, H. & Ii. 421, sect. 123, entitles the widow and children of any decedent, to one year’s support out of the estate of the deceased husband and father, and it may, if absolutely necessary, be estimated in money, and is not limited to be set apart from the stock of provisions or eifects of which deceased died possessed.
    This right of the widow and children constitutes a privileged claim, and is not dependent upon the solvency of the decedent’s estate ; and may be demanded at any time before the final settlement of the estate.
    If the widow of a decedent, whose estate is insolvent, elects to treat her claim to a year’s support for herself and children, as upon a footing with ordinary claims against the estate of her deceased husband, and refers it to commissioners of insolvency appointed to audit claims against the estate, she may be bound by such election and reference, and consequently by their report, establishing it merely as such a claim : but if the commissioners act upon her claim without her request and not at her instance, the decree of the probate court founded on their report, would be void as to her.
    Commissioners were appointed to select and set apart a year’s provision for L., out of the stock of provisions and effects of her deceased husband; they made their report, allowing her five hundred dollars; the estate was insolvent, and the widow’s allowance of five hundred dollars, at whose instance the record did not show, was laid before the commissioners of insolvency appointed to audit and allow claims against the estate, who declined to pass upon it, on the score of want of jurisdiction over it; and upon their report to that effect, it was referred by the court to referees, who reported it a claim against the estate; to the report of the referees, allowing it as a claim against the estate, the administrator of the estate excepted; the probate court, overruled his exceptions, and entered a decree confirming the report of the referees. Held, that the decree was manifestly beneficial to the estate, and the probate court did not err in overruling the exceptions taken by the administrator.
    On appeal from the probate court of Wilkinson county; Hon. Francis Gildart, judge.
    
      The record in this case discloses in substance the following facts, viz. That the estate of Wright B. Orr, deceased, having been reported and declared insolvent, the probate court of Wilkinson county, at the October term, 1843, appointed commissioners to receive and audit claims to it. That at the April term, 1844, commissioners were appointed to set apart to Martha N. Lewis, (late Martha N. Orr,) one year’s provision out of the effects of her deceased husband, Wright B. Orr, deceased. At the May term, 1844, the commissioners reported, setting apart to Martha N. Lewis, out of the effects of her deceased husband, five hundred dollars, and their report was received and confirmed by the court. That the claim of five hundred dollars sef apart by the commissioners and allowed by the court to Martha N. Lewis,' out of the effects of Wright B. Orr, deceased, was, fitough the record does not show at whose instance, laid before the commissioners of insolvency appointed to receive and audit claims against Orr’s estate; and that the commissioners refused to act on it, believing they had no jurisdiction of the claim. At the April term, 1845, the claim of Martha N. Lewis, the record does not state at whose request, was referred to referees. Two of the referees made their report at the August term, 1845, allowing Martha N. Lewis’s claim against the estate for five hundred dollars, and their report was received and confirmed by the court. At the same term, Samuel McNulty, administrator de bonis non, filed exceptions to the report of the referees, and his exceptions being overruled, he appealed to this court.
    
      G. H. Gordon, for appellant.
    There are but two questions in this case which require special consideration. 1st. Whether the legislature, by the act of 1839, H & H. Digest, p. 421, sect. 123, intended to give the widow and children of a deceased person, anything more than one year’s support out of the stock of provisions left by the decedent at his death. And, 2d. Whether under the statute, H. & II. Digest, p. 409, sect. 80, the said claim.for “one year’s provisions ” out of decedent’s effects, is such a claim as comes within the scope of the action of commissioners of insolvency, appointed to receive and examine the claims of the creditors against a decedent’s estate when reported insolvent. In regard to the first point, I think no one can read the statute, without at once seeing that the legislature only intended to give the widow and children of the deceased, “ one year’s provisions ” out of the stock on hand, if such were left by him, if not, then such provisions were to be procured out of the effects of the estate by the administrator, or other person having the control thereof, when the necessary articles for that purpose were ascertained as the law directs.
    The object evidently is to furnish a support in provisions to the widow and children for one year after decedent’s death, until the situation of the affairs of the estate could be ascertained, and a suitable plan adopted for their adjustment. It seems to me absurd to suppose the legislature meant by this act, that several years after the decedent’s death, and after the widow had married a second husband, and where there are no children of the decedent, as in the present case, to allow an amount in money, for one year’s provisions for the widow “ and children ” out of the insolvent estate of her former husband. Such an interpretation I presume will not be put on the statute by this court.
    2d. If, however, it should be considered by the court, that such an allowance was properly made, I think it is clear, that said claim could not be brought before the commissioners of insolvency, appointed to receive and examine the claims of the creditors of the deceased insolvent’s estate, it not being a claim against the decedent before his death. The commissioners of insolvency, as they say in their affidavit to their report, could have “ no jurisdiction over it,” they therefore, as shown in their report, took no action upon it at all. It is the action of the commissioners of insolvency, upon a claim laid before them, in either allowing or rejecting it, in whole or in part, which gives the probate court the power upon good and sufficient cause being shown to appoint referees to report on such claim. H. & H. Digest, p. 10, sect. 80, (in proviso.) And although it is stated in one or two places in the record, that the claim in question was rejected by the commissioners of insolvency, yet their report which forms a part of the record, does not warrant such statements, and they are mere dictums inserted by way of inducement or introduction of the different parts of the record. But I maintain, that if the commissioners had formally allowed or rejected the claim under consideration, having no right or jurisdiction to enteriain it, the probate court could not appoint referees to report upon it, the legiti acy of whose appointment and action is necessarily dependent upon the right of the commissioners to act upon the matter. It seems to me that the commissioners of insolvency, and the referees appointed under the act referred to, bear somewhat a resemblance to a court of original jurisdiction and an appellate court. If this be so, I apprehend no one will contend, that if the court of original jurisdiction, could not take jurisdiction of a matter presented before it, that by taking an appeal, and coming into the appellate court, the defect in the jurisdiction of the court below, would be cured, even if it was by the express agreement of the parties waving the question of jurisdiction, for it is a well settled principle, that where a tribunal has no jurisdiction of a matter, jurisdiction cannot be exercised by it, even by the consent and agreement of the parties.
    
      H. M. Farish, for appellee.
    It may be insisted, on the part of appellant in the first place, that, the allowance of five hundred dollars to appellee, by the commissioners appointed by the probate court, to set apart t'o her one year’s provisions, &c., was improper, and that their report should not have, been confirmed; but whether the decree of the probate court, confirming the report of said commissioners, is or is not erroneous, cannot be made a question in this case, but being upon a subject clearly within the jurisdiction of that court, any error in the same can be corrected only by appeal or writ of error, until this is done, the decree of the court must remain valid, and binding on the parties: but admitting, that this court could determine upon the validity of a decree of the probate court, brought before them in this collateral manner, 1 still contend that the decree of the probate court, confirming the report of the commissioners, setting apart to said Martha N. Lewis, five hundred dollars for one year’s provisions out of the effects of the estate of said Orr, deceased, is not erroneous, but that the allowance so made and confirmed ; comes within the letter and spirit of the statute. See H. & H. 421. That an amount of money in the place of actual provisions, was set apart to the widow, is not a valid objection; the object of the statute, was to give to the widow and children a maintenance, until they could have distribution of the personalty of the deceased, or make other provision for themselves; and it will not be contended that in case there is no stock of provisions on hand at the time of the death of an individual, his widow is deprived of the benefit of the statute; such a construction of the statute would be strict beyond example.
    Any objection that the allowance or provisions was not made for the widow, soon after her husband’s death, is equally invalid ; the statute gives her a right, and if she neglects to assert it, as soon as it accrues, there is no law or reason that would make such neglect a forfeiture of the rights and benefits secured to her by the statute.
    The only question that I conceive to be properly before the court, is whether or not the probate court erred in confirming the report of the referees in this case; whether the probate court, was right or not in appointing the referees, this court cannot now inquire; it was a decree of the court from which appellant could have taken an appeal; but appellant has set this down as a cause of error.
    The record shows that the claim of appellee, was presented to the commissioners, and that it was not allowed by them. If it was not allowed it was necessarily rejected, and upon this the court was authorized to appoint the referees. (H. & H. 410.)
    The referees, to whom said claim was referred, allowed the same, and so reported to the August term of the probate court, 1845, which report was excepted to by the appellant, but the court overruled the exceptions, and confirmed the report. The question raised is, whether the claim of appellee, was such a claim against the estate of said decedent, as authorized its allowance by the referees, if it was, then there is no error in the final decree of the probate court appealed from. What is the character of this claim so strenuously objected to by appellant? It is a judgment of the probate court, in favor of Martha N. Lewis against the estate of Wright B. Orr, deceased, for five hundred dollars; but appellant would say, it was not a debt due from said Orr, at the time of his death; but is not the estate of said Orr, as much bound for this judgment, and the assets in the hands of the appellant as administrator, as liable to its payment as to that of any other debt against said estate 1 It is a debt created by the operation of the statute, and as valid as though the deceased had created it in his lifetime. But appellant objects that it is a privileged claim, and entitled to be paid in full, if valid. It is true, that appellee was entitled to the amount allowed by referees, but if she waives her privilege of having the whole amount set apart to her, and consents to come in pro rata, with the other creditors of the estate, no objection can be made by the administrator, or other creditors, as such waiver is in favor of the other creditors, and adds to the amount of their dividends. The claim being a privileged legal and valid claim against the estate, it was discretionary with appellee to compel a full payment, or take a pro rata share with the other creditors, and having waived her right to have the whole, and presented her claim to the commissioners of insolvency, they, and the referees afterwards, were as competent to act upon and allow the same, as in the case of arty other claim.
   Mr. Justice ThacheR

delivered the opinion of the court.

Appeal from the probate court of Wilkinson county.

At the October term, 1843, of the probate court, commissioners of insolvency were appointed upon the estate of Wright B. Orr, deceased. At the April term, 1844, commissioners were appointed to select and set apart one year’s provision to Martha N. Lewis, out of the stock of provisions or effects of her deceased husband, the said Wright B. Orr. At the May term, following, the last mentioned commissioners reported, setting apart to said Martha N. Lewis, five 'hundred dollars out of the effects of her deceased husband’s estate. It also appears that this allowance of five hundred dollars to the widow, by some agency not apparent, was laid before the commissioners of insolvency, who declined to pass upon it on the score of want of jurisdiction over it; and that upon their report to that effect, it was referred by the court to referees, two of whom, at the August term, 1845, reported it a claim against the estate. To the report of these referees, the administrator of the estate of Wright B. Orr, excepted, but his exception having been overruled, hence this appeal.

By the act of 1839, H. & H. 421, sect. 123, upon the application of the widow for the purpose, commissioners must be appointed by a probate court, to select and set apart, out of the stock of provisions, or effects of any deceased person, one year’s provision for the widow and children. This statute entitles the widow and children of any decedent, to one year’s support out of the estate of the deceased father and husband. It is a donation by law, which may, if absolutely necessary, be estimated in money, and is not limited to be set apart from the stock of provisions or effects of which deceased died possessed. It is also a'privileged claim of the widow and children, and is not dependent upon the solvency of the decedent’s estate. H. & H. 414, sect. 100. And, it being a claim which must first be asserted by the widow, or by the children where there is no mother living, before it can be authorized by the court, and the time for asserting the claim, not having been limited by the statute to the year succeeding the decedent’s death, or to any particular time, it is a claim demandable at any period before the final settlement of the estate. H. & H. 421, sect. 123.

In the present case, an allowance of fire hundred dollars, was made by the commissioners to the widow. Whether this allowance was excessive or not, cannot now be the subject of inquiry, as no exception or appeal seems to have been taken to the report making the allowance, nor, indeed, is that point now made a question. But the case presented here, is that of an administrator appealing from the decree of a probate court, overruling exceptions to the report of referees appointed upon the report of the commissioners of insolvency of a decedent’s estate, declining to take cognizance of a claim for a widow’s allowance for a year’s support. If, in point of fact, the original reference to the commissioners of insolvency was made by the widow of her claim, then, if she elected to treat her claim as upon a footing with ordinary claims against the estate of her deceased husband, perhaps she is bound by that reference and election, and consequently by the report of the referees establishing it as merely such a claim, from which she has taken no exceptions or appeal. On the other hand, if these proceedings were had in respect to her year’s allowance not at her instance, it is a decree to her prejudice without notice to her, and consequently void. But in no point of view, did the court err in overruling the exceptions taken by the administrator, for the decree is manifestly upon its face beneficial to the estate, if it can be ultimately sustained as between the parties in interest.

Decree affirmed.  