
    Elizabeth Dorah’s Administrator v. Joseph Dorah’s Executor.
    The death of a widow, to whom an allowance has been made under sections 45 and 46 of the administration law, before the expiration of the year, and before it has all been expended in her support, does not bar the right of her executor to recover the amount unpaid, from the executor of her husband.
    Such allowance confers a vested right of property, and is not divested by her death, or by any other contingency, occurring after the amount has been fixed and allowed by the proper tribunal.
    Whether, upon petition for such cause, the amount might be diminished by the probate court, under section 48 — qucere ?
    Case reserved in Muskingum county.
    The amended declaration counted on an indebtedness in the lifetime of the plaintiff’s intestate, from the defendant as executor, in the sum of two hundred dollars, “ for money then and there, by the appraisers of the estate of the said Joseph Dorah, deceased, certified" to be necessary for her, the said Elizabeth Dorah’s, twelve months’ support, from the death of the said Joseph Dorah, deceased, she being his widow,” etc.
    The defendant interposed the following special plea:
    “And the said defendant comes and defends the wrong and ^injury, when, etc., and says that the plaintiff ought not to maintain his action against him as to the said sum of $200, first mentioned in the plaintiff’s declaration; because, he says, that although the appraisers of the estate and property of Joseph Dorah, deceased, did, on the 15th day of March, 1852, at the county aforesaid, set off to, and allow, said Elizabeth Dorah the sum of $42.87, in certain articles of personal property, and did certify that the further sum of $157.13 was necessary for the support of the said-Elizabeth Dorah for twelve months after the death of her said husband, Joseph Dorah, who died on the 1st of March, 1852 ; yet the said Elizabeth Dorah died on the 24th day of March, 1852, without reducing the same to possession, or any part thereof, and without taking any steps therefor, except as to said sum of $42.87, in property, and the sum of $15.50 paid said Elizabeth by this defendant. And the said defendant avers that said sums of $42.87 and $15.50, making $58.37, were sufficient to support said Elizabeth Dorah during the time she lived after the death of her said husband, Joseph Dorah; and this the defendant is ready to verify. Wherefore he prays judgment if the jfiaintiff ought to maintain his action against him, etc.
    “ And for further plea in this behalf, after leave of the court first had and obtained, the said defendant says, that as to said sum of $200, first mentioned in plaintiff’s declaration, the said plaintiff ought not to maintain his action against him ; because, he says, that although the appraisers of the estate and property of said Joseph Dorah, deceased, did on the 15th day of March, 1852, in accordance with the statute in that case made and provided, set. off and allow to the said Elizabeth Dorah, the sum of $42.87, in certain articles of personal property, and did certify that the further sum of $157.13 was necessary to support the said Elizabeth Dorah for twelve months after the death of her said husband, Joseph Dorah, on the 24th day of March, 1852; yet the said Eliza■beth Dorah died on the 24th day of March, 1852, without having reduced the said allowance so made by the appraisers *aforesaid, for her first year’s support ás aforesaid, to possession, or any part thereof, and without taking steps therefor, or demanding the .-same, or any part thereof, except the sum of $42.87, in property, and the further sum of $15.50 paid by this defendant to the said Elizabeth Dorah. And the defendant avers that said sums of $42.87 and $15.50, making together the sum of $58.37, were sufficient to support the said Elizabeth all the time she lived after the death of her said husband, Joseph Dorah, and to pay the funeral expenses, and expenses of the last sickness of the said Elizabeth Dorah; and this the defendant is ready to verify. Whereupon he prays judgment if the defendant ought to maintain his action ■ against him,’.’ etc.
    To this plea the plaintiff demurred.
    
      S. Chapman, for plaintiff.
    
      F. A. tSeborn, defendant, in person.
   Ranney, J.

Whether the special plea, interposed as a bar to •this action, is sufficient, must depend upon the construction of several sections of the administration law. By section 45, it is made the duty of the appraisers to set off, from the property of the decedent, provisions or other property sufficient to support the widow, -and children under fifteen years of age, if any, for the period of one year. If there is not sufficient personal property, or property of a suitable kind, they are required by section 46, to certify .what sum, or what further sum, in money is necessary for the support of such widow and children for that time; and in either case, the property or money, thus sot off and allowed, is to be returned •in a separate schedule, and not included in the general inventory. The court to which it is returned, is authorized, upon the petition -of the widow, or other person interested, to review the allowance, and increase or diminish -the same, and make such order as it shall deem right and proper. By section 83, the executor or administrator is required to *pay the sum thus certified, or ultimately fixed by the court, next after paying the funeral expenses, those of the last sickness, and the expenses of administration, and before anything is applied to the payment of other claims. In this case, no application was made to the probate court to increase or diminish the allowance; and, consequently,, the action of the appraisers was final. But it is averred in the plea, and admitted by the demurrer, that enough of the allowance was paid to support the widow until her death ; and the question now arises, whether the balance may be recovered by her personal representative.

After a careful examination of the subject, we are of opinion that it may be; or, at least, that the plea is no bar to the present action. A different construction would often lead to serious difficulties, and, as it seems to us, would be interpolating into the statute a contingency never contemplated by the legislature. In cases where sufficient personal property, of a suitable kind, exists, from which the allowance is taken, it is undeniably clear, that it goes immediately into the hands of the widow, and is disposed of at her pleasure, and as her absolute property. In fixing the amount, in all eases, the children dependent upon her for support, are taken into the account; so that the death of a child might raise the same question as the death of the widow. We can see no reason to suppose, that it was ever intended to allow a recovery back of any part of the amount, upon the happening of such a contingency; and quite as little, that it was intended, where the property of the estate does not admit of the appropriation of specific articles, to place the widow in a worse situation, by making such an unequal and unjust discrimination. To allow such a deduction, either by giving an action to the administrator to recover it back where it has been paid, or by permitting, him to withhold it where it has not, is to introduce the most perplexing uncertainty as to the rights of the widow and the duties of the administrator, and to withdraw the whole matter from the appropriate tribunal, to the assessment and discretion of a jury.

*With the construction we adopt, the rights and duties of all concerned are clear, definite, and fixed. It gives to the widow and children a paramount claim upon enough of the estate to support them for one year, over creditors and distributees; and where it has been- fixed or set apart by the appraisers, or by the court on review, effectually withdraws it from the balance of the estate, and has all the force and effect of an adjudication in their favor. It confers a vested right of property, conclusively disposes of so much of the estate, and leaves no discretion to the administrator as to complying with it, and no responsibility upon him, to creditors or distributees, for thus complying. In the language of the statute, it is “setoff” from the estate, and “allowed” to the widow and children. The case of Adams v. Adams, 10 Met. 170, cited by defendant’s counsel, is in no way decisive of this. By the statute of Massachusetts, the probate court makes the allowance in the first instance, subject to an appeal from his decision. In that case an appeal had been taken, which vacated the order of the probate-court, and before the hearing in the appellate court, the widow died. There was, consequently, no amount allowed at her death, and the-court hold that they could not go on and make the allowance at the instance of her executor, and that no vested right existed until the amount was fixed. This may all be very correct, and still have no-bearing upon a case where the personal representative of the widow is not proceeding to obtain an order fixing the amount, but to recover the amount fixed and allowed in her lifetime. We have not found it necessary to consider, whether the probate court might,, upon a petition filed under section 48, take into consideration such circumstances, transpiring after the action of the appraisers, as-tended to show that the amount ought to be increased or diminished ; or whether the court should be confined- to the consideration only of the correctness of the decision made by them, and we therefore express no opinion upon that subject.

The demurrer must be sustained.  