
    Moore v. Adm’r of Moore.
    
      Allowance to widow for year’s support — Application to probate court for review— Order overruling, is final — Appeal—Section 6043, Revised Statutes, construed.
    
    The order of a probate court overruling au application of a widow for a review of the allowance made her by the appraisers for a year’s support from the estate of her deceased husband, under section 6043, Revised Statutes, is an adjudication, of the rights of the widow and other persons interested as to the question of allowance, and, unless such order is vacated by appeal, or other proper proceeding, is a final determination between them.
    (Decided November 13, 1888.)
    Error to the Circuit Court of Belmont County.
    John Moore died March 22, 1884, leaving surviving him his widow, aged seventy-six years, the plaintiff in error. On June 5, 1884, the appraisers of said decedent’s estate set off to the widow for her year’s support, in addition to provisions on hand, the sum.of $162.50. The widow filed her petition in the probate court, October 20, 1884, for review and increase of allowance, which application was refused and no appeal taken, or other proceedings had to vacate the same. After-wards, on the 2d day of May, 1885, the .widow filed another application for increase of allowance, stating that the amount set off by the appraisers had proved to be insufficient, and that since her first application there had been a change in her condition; that she had been sick and comparatively helpless, and that she needed and received nursing and medical attention, and incurred increased expense therefor. To this petition defendant in error answered, alleging that the allowance made by the appraisers was sufficient, and that the application for increase, filed October 20, 1884, was passed upon by the probate court, and that she was estopped thereby. To this answer plaintiff replied, denying that the matter set out in her petition had been passed upon or adjudicated. Upon hearing had in the probate court, the proceeding was dismissed, and an appeal was taken. At the trial in the common pleas, there was a finding of facts to the effect that a reasonable and proper allowance by the appraisers would have been $150 more than the amount allowed by them, and that the allowance should have been increased by that much at the time of review by the probate court, and that at the time of the review the widow was in feeble health, and that in January, February and March next ensuing, she became worse, and required the attention of physicians and additional care, and that the additional expenses and services necessary by reason of such subsequent sickness, was of the value of $100. Upon these facts the court of common pleas held that the probate court had no authority to further review and increase the allowance made by the appraisers, and dismissed the petition.
    The judgment of the court of common pleas was, on error, affirmed by the circuit court.
    
      Rees & Hoff, for plaintiff in error.
    The liability of the estate of a decedent for the support of his widow for one year, as provided by sections 6040-6043, Rev. Stats., has been affirmed in all cases where the question has been presented.— Collier v. Collier, 3 Ohio St. 369; Dorah v. Dorah’s adm’r, 4 Ohio St. 292; Bane v. Wick, 14 Ohio St. 506; Allen v. Allen’s adm’r, 18 Ohio St. 234; Sherman, adm’r, v. Sherman, 21 Ohio St. 631.
    The plea of “former adjudication” is tenable only where it is shown that at the trial of the cause, in which such former judgment was rendered, the same evidence could have been presented, and to the same effect, as in the cause in which such plea is made, and that the condition of the parties is the same in every material respect as at the former trial. What may occur, and what did occur, are not within the scope of “ identities ” required by the plea of res adjudieata.
    
    Subsequent to the alleged judgment, on the'application of October 20, 1884, the widow was, ill. There was a serious change in her condition — one adding largely to the cost of her support, and so found by the trial court. Had the increase of allowance been made, as it is stated by the court of common pleas it should have been, to the amount of $150, the plaintiff in error would have been entitled to the additional $100 by reason of the change of condition. Sherman, adm’r, v. Sherman, supra.
    
    
      L. Danford, for defendant in error.
    The appraisers, by virtue of section 6040, Rev. Stats., made their allowance and returned the same into the proper ■court. The plaintiff in error being dissatisfied therewith, had a right, under section 6043, to file her petition in the court to which the allowance was returned, asking for a review of ■such allowance by the court, and for an increase of the same; this she did, and the court passed on her petition upon full hearing, and if still dissatisfied, she could appeal; this she -did not do, but filed another petition May 2d, 1885, asking -of the same court precisely the .same thing, to-wit: a review ■of the allowance of the appraisers and an increase of the .same.
    The authority conferred on the probate court, by section '■6043, was exhausted by the proceedings had under and by virtue of the petition of October 20th, 1884, and any one interested had a right to interpose the former action of the plaintiff as a bar to the present proceeding; the administrator ■certainly had such right.
    "We scarcely need cite authorities upon so elementary a proposition, but may refer to Bigelow on Estoppel, pages 44-45.
    A review of the allowance of the appraisers and an increase ■of the same is sought in both the former and present proceeding; nothing else could be sought. Under the statute, section 6043, the court has only the power conferred by that ■statute, and the proceeding must necessarily be the same.
   Spear, J.

Section 6040, of the Revised Statutes, makes it the duty of the appraisers to set off and allow to the widow, and children under the age of fifteen years, if any there be, sufficient provisions or other property to support them for twelve months from the death of the deceased, and the following section provides that where there is not sufficient personal property, or property of a suitable kind, the appraiser's shall certify what sum, or further sum, in money, is necessary for the-support of such widow or children. Following these requirements, the appraisers set off to the plaintiff in error, both provisions and money.

Section 6043 gives authority to the probate court, on petition of the widow, or other person interested, to review the-allowance, and increase or diminish the same, and make such order as it may deem right and proper.

Under the authority of this last mentioned section, the plaintiff in error sought the action of the probate court by her petition of October 20, 1884, and that court’s finding and order was an adjudication of her right to further allowance. If dissatisfied, she had the right to appeal, or prosecute a proceeding to vacate. Having omitted to avail herself of such right, she cannot, by a new petition, again invoke the action of the probate court upon the same question. The duty of. that court was to review the proceedings of the appraisers. That duty it performed in the case first brought, and made a. final order, and its power over the question was thereby exhausted.

This conclusion may seem to involve hardship, but a contrary one would involve the most perplexing uncertainties as to the. rights of -widows and the duties of administrators. If a widow may have such a question again reviewed by the same court,, an administrator or other person interested may. The appraisers, in making their allowance, are expected to take into account the age of the widow, her condition and prospect as to-health, and all surrounding circumstances. If the widow were-permitted to review as often as she might desire, the question involved, because of a changed condition of health, it would follow that, in a case where the widow was ill at the time the-appraisers acted, and recovered later, the administrator, or any interested person, might seek such continued reviews by the-same court for the purpose of reducing the allowance, and thus, the question of allowance be kept open, to the unreasonable, embarrassment and injury of those interested in the settlement, of the estate.

Judgment affirmed.  