moral acts on her part, she will not be barred from the widow's allowance because of such actions.2 21

But the better rule seems to be that the right of a widow to an allowance is not lost because of immoral conduct on her part during her marriage,22 nor because of the fact that she wrongfully, during her husband's lifetime, appropriated his money to her own use.23 Where the statute providing that the court may make an allowance out of the personal estate of a decedent directs that the application shall be dealt with "having regard to all the circumstances of the case," the necessary implication is that the allowance shall be made only to relieve what, under the circumstances, are fairly to be deemed necessities. The design of the allowance is not to take the estate from the creditors, to modify the provisions of the will, or to change the course which the property would take under the statute of distribution. An allowance may be given to a widow although she was living separate and apart from her husband at the time of his death. Culpability on the part of the widow has little application on the question as to the award of an allowance, since it is not made as reward for the faithful service of a wife, but is a question of the widow's actual necessities.24

The conflict of opinion above shown demands a comment. Immoral conduct on the part of a wife is a ground for divorce and such issue may be tried in a divorce proceeding, regarding which the court of probate has no jurisdiction. The widow of a decedent, under the statute

21 In re Drasdo's Estate, 36 Wash. 478, 78 Pac. 1022.

22 In re Drasdo's Estate, 36 Wash, 478, 78 Pac. 1022.

23 Estate of Bump, 152 Cal. 274, 92 Pac. 643.

24 Washburn v. Washburn, 10 Pick. (27 Mass.) 374; Slack v. Slack, 123 Mass. 443; Dale v. Hanover Nat. Bank, 155 Mass. 141, 29 N. E. 371; Chase v. Webster, 168 Mass. 228, 46 N. E. 705.

of distribution, is entitled to succeed to a portion of the estate of her deceased husband and such statute does not make the amount of her share dependent upon her morality or immorality. Statutes provide for an allowance to the widow of a decedent in order that she may be supplied with the necessities of life pending a settlement of the husband's estate. If the probate court may assume jurisdiction and try the issue of morality or immorality of the widow upon her application for an allowance, allowing or refusing it according to its determination, it might as well be argued that the amount of the allowance would depend upon the degree of the morality or immorality. Such procedure would not only offer the opportunity to unjustly assail character, but would give the probate court the discretion to say whether or not, for the purpose of the allowance, the surviving wife of a decedent was or was not his widow. And if she is not a widow to the extent that she is entitled to the statutory allowance for support, it would be but a step further to say that she is not the decedent's widow for the purposes of the statute of distribution.

§ 1438. Application for Widow's Allowance Required.

The statutes authorizing an allowance to be made out of the estate of a decedent for the support of his widow or family, as a general rule require that an application be made therefor; and the probate court, after due hearing, fixes the amount and makes its order accordingly. The property remains in the hands of the executor or administrator until set aside by order of court. The application for the allowance is not an action or proceeding against the executor or administrator, but is similar

to an application for partial distribution.25 The widow being entitled to the allowance as a matter of right, no formal application therefor or notice to the heirs is necessary unless the statute so requires.26 The legislature may provide that a part of the estate shall be thus subject to the order of the probate court either without notice or with such notice as it may require in general matters of administration. The making of an order of allowance to the widow is a part of the statutory proceedings in the administration of the estate. 27 Although an order may be made without notice as required by the statute, a subsequent hearing of objections after due notice will authorize the court to enter an order nunc pro tunc covering the same items included in its former order.28

The widow need not herself petition for the allowance, the order may be made upon the petition of any one in her behalf.20 There must of course be some proof of the applicant's right to the allowance. The fact that the right of the petitioner to the allowance is denied, as where the petitioner claims to be the child of the decedent and such fact is denied and contested, does not deprive the court of jurisdiction to make the order of allowance if the facts. showing the petitioner's right are established by competent evidence to the satisfaction of the court.30

25 Estate of McCausland, 52 Cal. 568.

26 Estate of Dougherty, 34 Mont. 336, 86 Pac. 38.

See, also, last paragraph of § 1420.

27 Estate of Bump, 152 Cal. 274, 92 Pac. 643.

28 Estate of Murphy, 30 Wash. 9, 70 Pac. 109.

29 Estate of Garrity, 108 Cal. 463, 38 Pac. 628, 41 Pac. 485.

The fact that the executor was also the widow's son should not prevent the petition made by him in her behalf from receiving the same consideration as though he had not been executor.-Estate of Garrity, supra.

30 Estate of Blythe, 99 Cal. 472, 34 Pac. 108.

The fact that the administrator of the estate has made payments to the widow for her maintenance and support without the court having previously made an order to that effect, does not deprive the administrator from thereafter receiving proper credit for such payments, to the extent which the court finds such advances to be reasonable and proper.31

§ 1439. Effect of Delay in Applying for Allowance,

As a general rule the application for a widow's or family allowance can be entertained only during the time that support is intended,32 and a failure to petition for the allowance within such time is a waiver of the claim.33 The application of the widow for her allowance should be made at least within a reasonable time after administration has been granted, otherwise the court will be justified in refusing it if it would embarrass the settlement of the estate.84 A delay of twelve months has been held to bar the allowance under the statute of limitations,85 but a longer delay has been held immaterial where no other rights had intervened.36 If the widow allows the personalty of the estate to be exhausted in paying claims before she applies for her allowance, she has been held to have lost her right thereto.37 But the fact that the

31 In re Lux's Estate, 100 Cal. 606, 608, 35 Pac. 345; In re Lux's Estate, 114 Cal. 89, 45 Pac. 1028.

32 Kingman v. Kingman, 31 N. H. 182.

33 Davis' Appeal, 34 Pa. St. 256. 34 Kingman v. Kingman, 31 N. H. 182; Perkins v. Brinkley, 133 N. C. 86, 45 S. E. 465; In re Williams' Appeal, 92 Pa. St. 69; McGowen v. Zimpelman, 53 Tex. 479.

35 Cook v. Sexton, 79 N. C. 305. A delay of two years held to be no bar under the Illinois statute.Miller v. Miller, 82 Ill. 463.

36 Estate of Irwin, 6 Pa. Dist. Rep. 351, 19 Pa. C. C. 595.

37 Drowry v. Bauer, 68 Mo. 155. The allowance will be refused where the widow has delayed until after the administrator has secured an order to sell all the

widow delays in filing her petition for an allowance does not necessarily bar her right to the same, especially where the delay is not unreasonable or is accounted for because of negotiations between the widow and the heirs regarding a compromise.38

§1440. Right to Allowance Not Dependent Upon Widow's Inability to Support Herself.

The fact that the widow or children of the decedent have separate property sufficient for the purpose of support and maintenance is not, according to the general rule, a reason for the court to deny the allowance. The provisions of statutes authorizing or directing the court to order an allowance for the support of the widow or children do not make the allowance dependent upon the financial inability of the widow and children to support themselves. But the fact that the widow is possessed of separate property may be taken into consideration, together with the circumstances and conditions of the estate, in fixing the amount.40

39

property of the estate for the purposes of administration.-Henderson's Admr. v. Tucker, 70 Ala. 381. But compare Mitcham v. Moore,, 73 Ala. 542.

38 Welch v. Welch, 181 Mass. 37, 62 N. E. 982.

See, also, Allen v. Allen, 117 Mass. 27, where the delay was for more than two years; Lisk v. Lisk, 155 Mass. 153, 29 N. E. 375, where

the delay was for two years and eight months.

39 In re Lux, 100 Cal. 594, 35 Pac. 341; In re Lux, 114 Cal. 73, 45 Pac. 1023; Griesemer v. Boyer, 13 Wash. 171, 43 Pac. 17.

Contra: Dale v. Hanover Nat. Bank, 155 Mass. 141, 147, 29 N. E. 371.

40 Duncan v. Eaton, 17 N. H. 441.