and the property becomes subject to levy and sale for the payment of her individual debts.78

An executor or administrator will not be permitted to make an agreement or arrangement with the widow or any one else interested in the fund growing out of a family allowance for its application to the payment or satisfaction of his personal obligations. Such an arrangement would be subversive to the policy of the law and void. Even the consent of the widow would not make the arrangement valid. The allowance is as much for the benefit of the children as for the widow and therefore can not be affected by any agreement between the widow and administrator which would deprive the children of its benefit or divert it to any other use than that specified in the law.79

§1431. Right to Family Allowance Preferred to All Claims Against the Estate.

The allowance provided by statute to be made for the support and maintenance of the widow or minor children of the decedent is not in the nature of an absolute interest in the property of the estate, but is rather a preferred charge or claim against the estate. It is in effect a part of the cost of administration.so It is a first charge against the estate, the purpose being to provide for the comfort and maintenance of the widow and children during ad

78 Lowe v. Webb, 85 Ga. 731, 11 S. E. 845; Swain v. Stewart, 98 Ga. 366, 25 S. E. 831.

The property would not be subject to the widow's debts if set aside to her as property exempt from execution, see § 1419.

As to liability for debts of a

homestead to which the widow succeeds upon the death of her husband, see § 1422.

79 Moore v. Moore, 60 Cal. 526. 80 Wilson v. Wilson, 55 Colo. 70, 132 Pac. 67; In re James' Estate, 38 S. D. 107, 160 N. W. 525.

ministration.81 The title of the widow to the allowance given her is not taken by succession from the deceased husband, but is acquired adversely to the administrator, the right being conferred by statute.82

The allowance made to the widow or family for her or its support and maintenance is free from all debts and liabilities of the husband.83 It takes precedence over any attachment in a suit against the husband levied in his lifetime and undetermined at his death. It is superior to a judgment entered against the husband during his lifetime. 85 It is, however, as a general rule, subordinate to liens for taxes.8

86

The right of the widow or family to an allowance for maintenance and support is preferred over all other claims against the estate. It is held that the widow's right is prior even to the costs and charges of administration.88 It takes precedence over all claims of legatees

81 Deeble v. Alerton, 58 Colo. 166, 143 Pac. 1096.

The right of the widow to an allowance is prior to all other claims.-Livingston v. Langley, 79 Ga, 169, 3 S. E. 909.

82 Crenshaw v. Moore, 124 Tenn. 528, Ann. Cas. 1913A, 165, 34 L. R. A. (N. S.) 1161, 137 S. W. 924; Shannon's Code, §§ 4020, 4021. 83 Lowe v. Lowe, 163 Mo. App. 209, 146 S. W. 100.

84 Tetzloff v. May, 151 Iowa 441, 445, Ann. Cas. 1913A, 341, 131 N. W. 647, 172 Iowa 617, 154 N. W. 905.

85 First National Bank v. Donald, 112 Miss. 681, 73 So. 723.

The right to the allowance has been held subordinate to a bill of

sale to secure a note given as collateral security for an advance ment for farm supplies.-Moore v. Ramsey, 144 Ga. 118, 86 S. E. 219.

The widow's allowance of one year's supply of provisions is superior to the lien of a mortgage, It being said that where the estate is insolvent, art. 3420, Vernon's Sayles' Annot. Civ. Stats., does not apply.-Newnon v. Hedeman (Tex. Civ. App.), 184 S. W. 298.

86 Meyer v. Meyer, 25 S. D. 596, 127 N. W. 595.

87 Aiken v. Davidson, 146 Ga. 252, 91 S. E. 34; Tetzloff v. May, 172 Iowa 617, 154 N. W. 905.

88 Denton v. Tyson, 118 N. C. 542, 24 S. E. 116.

or distributees as well as of all other claims against the estate;89 and in the absence of a statute to the contrary9o is held to be preferred over funeral charges and the expenses of the last illness of the decedent.91

§1432. Legacy Given in Lieu of Allowance: Doctrine of Election.

A widow for whom no provision is made in the will of her husband can not be deprived of her statutory right to an allowance out of his estate for her support and maintenance because in his will he disposed of all of his property to others.92 Where neither in express terms nor by implication does it appear in the will of the husband that a legacy to the wife is given in lieu of her statutory allowance, an allowance made her can not be charged up against the legacy.93 Where the will provides that the provisions therein made in favor of the testator's wife are in lieu of dower and "all other claims on the estate," it is held that the right of the widow to the

"It is a charge above and beyond and independent of administration and its expenses, and stands before all debts, and all other expenses of administration." -Whitehead v. McBride, 73 Ga. 741, 742.

A widow is entitled to her statutory allowance before payment of the expenses of litigation by the administrator in an unsuccessful attempt to defeat her right.-In re Ulrici's Estate, 177 Mo. App. 584, 160 S. W. 812.

89 Meyer v. Meyer, 25 S. D. 596, 127 N. W. 595.

90 Meyer v. Meyer, 25 S. D. 596, 127 N. W. 595.

91 Aiken v. Davidson, 146 Ga. 252, 91 S. E. 34.

92 Ward v. Wolf, 56 Iowa 465, 9 N. W. 348; In re Peet's Estate, 79 Iowa 185, 44 N. W. 354; Crow v. Hubard, 62 Md. 560; In re Pulling's Estate, 93 Mich. 274, 52 N. W. 1116; Woolley v. Sullivan, 92 Tex. 28, 45 S. W. 377, 46 S. W. 629; Baker v. Baker, 57 Wis. 382, 15 N. W. 425.

93 Estate of Lux, 114 Cal. 89, 45 Pac. 1028; Meech v. Weston, 33 Vt. 561.

Compare: Zunkel v. Colson, 109 Iowa 695, 81 N. W. 175; Claudel v. Palao, 28 La. Ann. 872; Brown v. Hodgdon, 31 Me. 65.

statutory allowance is not barred because she elects to take under the will. The general rule is that a widow is not required to elect as between the provisions made for her in her husband's will and her statutory right to an allowance for support unless the will so directs,95 but such a direction may be inferred if the intent of the testator would otherwise be defeated.9

§ 1433. Effect of Antenuptial and Other Agreements.

Although a wife may by an antenuptial agreement release or waive her future right to an allowance for her maintenance and support out of the estate of her husband after his death, yet the court will consider the circumstances under which the agreement was drawn; and if the purpose of the agreement was merely to settle rights by curtesy or of dower or interests in community property, and the agreement was not made in contemplation of a subsequent application by the widow after her husband's

94 Collier v. Collier's Exrs., 3 Ohio St. 369.

See, also, Peeble's Estate, 157 Pa. St. 605, 27 Pac. 792.

95 Matter of Lufkin, 131 Cal. 291, 63 Pac. 469; Cowdrey v. Hitchcock, 103 Ill. 263; Langley v. Mayhew, 107 Ind. 198, 6 N. E. 317, 8 N. E. 157; Shipman v. Keyes, 127 Ind. 353, 26 N. E. 896; Hasenritter v. Hasenritter, 77 Mo. 162.

96 Shafer v. Shafer, 129 Ind. 394, 28 N. E. 867; McDonald v. Moak, 24 Ind. App. 528, 57 N. E. 159.

As to the nature of cases calling for election, and as to the manner in which the intent to put the widow to her election must be expressed, see §§ 818-821.

As to the doctrine of election as applied to wills, see §§ 813-839.

It is a well settled rule that no one can claim both under a will and against it. Where a husband in his will has specifically provided for his widow and she elects to take under the will, such election is a confirmation of the testamentary disposition and a waiver by her of her rights under the law. It constitutes a waiver of the claim for five hundred dollars provided for by statute to be allowed surviving widows out of the estates of their deceased husbands. -Boord v. Boord, 163 Ind. 307, 71 N. E. 891.

death for an allowance for temporary support out of his estate, the agreement, unless it specially so provides, will not be held to be a waiver of the right of the widow to such allowance.97

An antenuptial agreement between a husband and wife under which the wife accepts a specific sum of money in lieu of her share of her husband's estate, will not deprive her of the statutory allowance for her support during the course of administration.98 The widow's right to an allowance for support is a claim against the estate and is no more waived by an antenuptial agreement than any other just claims against the estate would be waived.99 Where a separation agreement between a husband and wife provides that neither shall have nor claim any part of the estate of the other, but contains no plain provision that the wife waive the right to her widow's allowance in case of her husband's death, there is no waiver and the separation agreement is no bar to the allowance.1

In Pennsylvania it is held that if a husband and wife enter into a written agreement of separation under which, for a valid consideration, each releases all rights which he or she might have in the estate of the other, and thenceforth live separate and apart until the death of the husband. the widow is not entitled to the three hundred dollars allowance provided for by the statute. Other authorities also favor the rule that if a husband and wife separate by mutual consent and continue to live separate

97 Estate of Whitney, 171 Cal. 750, 154 Pac. 855.

98 Baker's Appeal, 56 Conn. 586; Estate of Peet, 79 Iowa 185, 44 N. W. 354.

99 Wilson v. Wilson, 55 Colo. 70, 132 Pac. 67.

1 Deeble v. Alerton, 58 Colo. 166, 143 Pac. 1096.

2 Appeal of Spier, 26 Pa. St. 233; Appeal of Platt, 80 Pa. St. 501;

• Appeal of Speidel, 107 Pa, St. 18.