In re the Estate of Pollard

1 Goebel 216

• Court: Hamilton County Probate Court
• Decided: May 19, 1889
• Status: Published

Opinion

Goebel, J.

Is there power in the court to make such order ?

Section 6040 Rev. Stat., provides that the appraisers shall set off and allow to the widow and children under the age of fifteen years, if any there be, or if there be no widow, to such children sufficient provisions or other property to support them for twelve months from the death of the decedent, and section 6041 provides that when there is not sufficient personal property, or property of a suitable kind, to set off to the widow and children, as provided by the preceding section, the appraisers shall certify what sum, or further sum in money, is necessary for the support of such widow or children.

It is evident that 'the object of this legislation was to give to the widow and minor children, or either of them, property sufficient to maintain and support her or them for twelve months, and in cases where there are children and a widow, such allowance is not made to the exclusion of the other. It is also reasonable to suppose that the allowance in this case would not have been "made to this extent were there no minor child.

If, therefore, the minor child has an interest in the allowance, it becomes a question as to what portion of such allowance ought to go to the support of the child. This, in my judgment, was within the discretion of the appraisers to determine. The appraisers having failed to make an apportionment, there is power in this court to make an apportionment under section 6043 of the Revised Statutes, which provides that the court may, on petition of the widow or other person interested, review the allowance made to the widow or children, and increase or diminish the same and make such order in the premises as it shall deem right and proper.

In this case it is not claimed that the allowance is excessive if the sum is to be apportioned between the widow and minor child.

Plow shall this allowance be apportioned P There are no definite rules by which the court is governed in making an apportionment. There are many things to be considered; the manner and mode in which these parties were accustomed to live, the age of the minor child, the health of the widow and child. All of these are elements which the court may consider.

In this case, we have a widow upon whom no minor child or children are depending, who by reason of her age and experience is better able to maintain herself; while upon the other hand there is a child of tender years, requiring care, attention, and an education, in order that she may occupy a suitable station in life, whose demands and wants are therefore greater than those of the widow.

Upon careful consideration I have come to the conclusion that one thousand dollars would be a reasonable allowance to the minor child, and eight hundred dollars to the widow. An entry will therefore be made dividing the allowance of eighteen hundred dollars in the proportion just named.

Note. — On appeal the Common Pleas Court allowed the widow one thousand dollars and minor eight hundred, and affirmed judgment as to all other matters.