In re Dekum's Estate

41 P. 159 | Or. | 1895

Per Curiam.

The property of the estate exempt from execution having been devised and bequeathed by the testator to his children, and the estate being sufficient to satisfy all the debts and liabilities of the deceased, and pay the expenses of the administration, together with such allowance, the right of the county court to make the order cannot be successfully controverted: Hill’s Code. § 1128.^* But it is contended that the court erred in striking out the executors’ answer to the widow’s petition. The order requiring the executors to pay the allowance contains no proviso or condition that the amount awarded to the widow for her support should be received by her in lieu of dower. If, upon sufficient consideration, she made the agreement alleged in their answer, the proper time to plead it, if available as a defense, is when she makes a claim of dower during any portion of the time embraced in the order making the allowance. Under such circustances the widow was entitled to the monthly installment upon giving an ordinary receipt therefor, and, not having made any claim of dower, the answer of the executors to her petition was frivolous, and in striking it out the county court committed no error. Affirmed.

* Hill's Code, §1123, authorizes the court, when the property of a decedent exempt from execution is insufficient to support the widow for one year after filing of the inventory, to order the executors or administrators to make her an allowance, provided it is probable that the other estate is sufficient to pay all the liabilities of the estate and costs of administration in addition to such allowance.