In re the Accounting of Hulse

Petty, S. The accountant and the widow of decedent were appointed administrators of Ms estate and filed the statutory inventory. The sum of $150 was set off .to the widow under Code Civ. Pro., § 2113, subd. 5. The administratrix of the [47] estate of the widow now claims an allowance in lieu of the other provisions of said statute. Had the articles for which an allowance is now claimed existed at the decedent’s death the title thereto would have at once vested in the widow (Crawford v. Nassoy, 173 N. Y. 163), and while there is no statutory warrant for an allowance when the articles do not exist, the policy of the law is to be humane and even generous toward widows and to grant them allowances equal to the value of such articles. Matter of Williams, 31 App. Div. 617; Matter of Hembury, 37 Misc. Rep. 454. The object is to place the widow, in the same position as if the articles were left by the husband. Consequently the right to an allowance may be said to be vested and, therefore, pass to the administratrix of the widow as would the title to the articles themselves. Otherwise the right given the widow on the accounting to demand an award in lieu of such articles would be nullified, if, as in this case, she died before the accounting could legally be held. The word “ surviving ” in the statute must be construed to mean surviving the husband, not as surviving the accounting on his estate. The objection that the claim for an allowance can be made only by the widow personally must, therefore, be overruled. Code Civ. Pro., § 2724; Matter of Warner, 53 App. Div. 565; Matter of Maack, 13 Misc. Rep. 368. The objection that the widow waived her rights by returning an inventory without mention of the set-off allowed by law must be also overruled in the absence of proof that she intended such action to constitute a waiver. Experience has shown that widows are very rarely conversant with their rights in their husband’s estates, especially under the statute in question, and it would not be justice, in my opinion, to cut off the widow or her estate from what is her legal right unless it be clearly proved that by returning an inventory silent on this point she understood what she did and intended it to be a waiver. [48] The estate of the widow is, therefore, entitled to an allowance which is fixed at the sum of $300. The estate being small no costs are awarded. Application granted, no costs.