Bank of Commerce & Trust Co. v. Trigg , 138 Okla. 216 ( 1927 )

On a petition for rehearing the attention of the court is called to the judgment of the county court on hearing of petition for distribution of the estate, rendered on the 2nd day of July, 1923, in which that court found that the widow, in addition to receiving $300 per month under the terms of the will, was

"* * * entitled to a widow's allowance for her support from and after the date of the death of the said Jerome B. York until the final settlement of said estate, and the court finds that $300 per month is a reasonable allowance for the widow's support, and that she should be paid said sum of $300 per month from and since the date of the death of the said Jerome B. York, deceased, or the sum of $18,000 and the sum of $300 per month beginning on the 1st day of August, 1923, and until the final settlement of the estate"

— and ordered

"* * * that the executors pay to the widow of Jerome B. York, deceased, Elizabeth York, the sum of $18,000, as a widow's allowance for her support, and that they pay her the sum of $300 per month beginning on the 1st day of August, 1923, until this estate is finally closed and settled."

The petition for rehearing calls attention to the fact that this order and judgment was a construction of the order made on December 24, 1919, by which the executors were ordered to pay the widow the sum of $300 per month.

Attention is also called to the answer brief of defendants in error, in which it is said:

"It is true that the district court incidentally recited that the monthly payments of $300 for the support of the widow had been made by the executors under the will. That fact was not in issue and was not a material one in determining whether Mrs. Elizabeth York should continue to receive an allowance when she began taking under the will some four years after the death of her husband. Counsel for plaintiff in error plead in the answer of Mrs. York herein that she was receiving 'from the executors as per order of the court as an allowance for the widow or family the sum of $300 per month, but has not received any sum from the executors under or by virtue of the terms of the will of the estate of Jerome B. York, deceased.' So it appears that Mrs. Elizabeth York, in her pleading, alleges that she has received the widow's allowance, and there is no denial of her receipt of same on the part of the executors. However, the executors allege that when she took under the will, in 1923, the allowance provided therein, that she was not entitled to continue to take the temporary allowance made by the county court, for the widow, in 1919. Counsel insist that Mrs. York was entitled to this allowance until the will was probated, and with that we have no quarrel; and she has received same, but with counsel's insistence that when she elected to take under the will the proceeds of the trust fund, in 1923, she was still entitled to receive the widow's allowance made in 1919, we took issue. This issue was submitted to the district court and determined against the contention of the plaintiff in error."

This court holds that under the facts disclosed in this case the widow takes under the law. Under section 1227, C. O. S. 1921:

"If the amount set apart as aforesaid be less than that allowed, and insufficient for the support of the widow and children, or either, or, if there be no such personal property to be set apart, and if there be other estate of the decedent, the court may in its discretion make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the progress of the settlement of the estate, which, in case of an insolvent estate, must not be longer than one year after granting letters testamentary or of administration."

The county court, on December 24, 1919, allowed the widow and ordered the executors to pay her the sum of $300 per month. At that time, according to the records, she was without means of support, and there had been no determination of what she was to receive from the estate. On the 2nd day of July, 1923, the county court made an order distributing the estate and decreeing her $300 per month under the will, $300 per month as allowance under the law and one-third of the estate under the law. Thereupon the widow began to receive $300 per month under the will. The evidence shows that that was the amount necessary for her support. It was not necessary thereafter that she have an allowance for the reason that the allowance was only for the maintenance of the family during the progress of the settlement of the estate. Up to that date she was entitled to and was given an allowance. Thereafter she was not entitled to an allowance.

The opinion in this case is therefore modified to provide that the widow be allowed $300 per month from the date of the death of the deceased to the 2nd day of July, 1923, which amount shall be paid out of the estate and charged as other costs of administration. All sums paid to her after the 2nd day of July, 1923, should be charged to and against the one-third of the estate inherited by her heirs.

In all other particulars the opinion stands as promulgated, and the petition for rehearing is denied.

LESTER, V. C. J., and HUNT, HEFNER, CULLISON, and SWINDALL, JJ., concur.

MASON, C. J. and RILEY, J., absent.

CLARK, J., not participating.