783. Payment-What constitutes-Certain payments held to be in payment of a statutory allowance and not under an antenuptial agreement.47

48

784. To whom payable-The allowance is payable only to the widow or children of the family. Ordinarily the allowance is payable to the widow, the presumption being that she will care for the children out of it. In exceptional cases, however, the court may direct the expenditure for the benefit of the children.*

49

785. Time of allowance-The allowance may be made before an inventory and appraisal of the estate. 50 It may be made before the probate of a will.51 It may be made before the widow elects to take under the will or the statute.52 Application for an allowance ought to be made at an early stage of the administration and it ought not to be granted if made so late that granting it would embarrass the settlement of the estate.5

53

56

786. Duration-Insolvent estates-One-year limitation-The statute provides that if the estate is insolvent the allowance shall not be granted for more than one year after administration is granted, nor in any case after the distributive share of the widow in the residue of the personal estate has been assigned to her. 54 If the estate is insolvent an allowance for more than a year is unauthorized.55 The phrase "nor, in any case, after the distributive share of the widow in the residue of the personal estate has been assigned to her" refers only to insolvent estates." An allowance out of an insolvent estate terminates at the expiration of one year though the order does not specify the duration. The court cannot extend the time. An order for maintenance during administration does not terminate with the entry of an order of distribution, so as to deprive the widow of the allowance pending an appeal from the order, but continues in force until actual distribution is made.58 The right of a widow to an allowance continues through a special administration.59

57

47 Desnayer v. Jordan, 30 Minn. 80, 14 N. W. 259.

48 In re Service's Estate, 155 Mich. 179, 118 N. W. 948.

49 In re McSwain's Estate, 176 Cal. 280, 168 Pac. 117.

50 Strauch v. Uhler, 95 Minn. 304, 104 N. W. 535.

51 Golder v. Littlejohn, 30 Wis. 344. 52 Blakeman v. Blakeman, 64 Minn. 315, 67 N. W. 69.

53 Lisk v. Lisk, 155 Mass. 153, 29 N. E. 375; Welch v. Welch, 181 Mass. 37. 62 N. E. 982; Glover v. Glover, 215 Mass.

576, 102 N. E. 945; 2 A. & E. Ency. of Law (2 ed.) 163; 18 Cyc. 394.

54 See § 771.

55 Strauch v. Uhler, 95 Minn. 304, 308, 104 N. W. 535; McDonald v. Hollywood's Estate, 130 Mich. 691, 90 N. W. 666. 56 Marskey v. Lawrence, 121 Mich. 577, SO N. W. 571.

57 In re Treat's Estate, 162 Cal. 250, 121 Pac. 1003.

58 Marskey v. Lawrence, 121 Mich. 577, 80 N. W. 571.

59 In re Welch's Estate, 106 Cal. 427, 39 Pac. 805.

787. Assignment-The right to an allowance cannot be assigned before it is formally allowed."0

788. Advances by representative-A representative may advance money to a widow for her support before an allowance is granted, taking his chances of an allowance being made. He is entitled to credit in his account for such advances if an allowance is made."1

789. Bankruptcy-The allowance is protected by the bankruptcy act and the assets remaining in the hands of the trustee at the bankrupt's death are chargeable therefor.62

790. Notice of application-An allowance may be made without notice, but if the amount sought is large and there is likely to be a contest it is well for the court to require a notice.63

64

791. Vacation and modification-Further allowance-An order for an allowance is subject to vacation or modification at any time. An allowance may be increased. The court may require the widow to show her circumstances on an application for a further allowance. An allowance may be decreased.67

69

792. Appeal-An order granting or refusing an allowance is appealable,68 An executor or administrator may appeal from an order of allowance. A creditor may appeal from such an order, at least if the estate is insolvent. On an appeal from an order making an allowance the district court should try the cause de novo as if commenced in that court, and not merely review the propriety of the order appealed from upon the return of the probate court. New facts arising after the trial in the probate court are admissible in the district court. The probate court made an ex parte order, making the widow an allowance out of the personal estate of her deceased husband for her maintenance during the settlement of the estate, and directing the executor to pay such allowance out of the personal estate. The executor moved the court to vacate or modify the order, on the ground that there was no personal estate out of which to pay it. The probate court denied the motion, and on

60 Hackley v. Muskegon Circuit Judge, 58 Mich. 454, 25 N. W. 462; In re Service's Estate, 155 Mich. 179, 118 N. W. 948.

61 King v. Whiton, 15 Wis. 684. See § 1054.

62 Hull v. Dicks, 235 U. S. 584.

63 Wright v. Wright, 13 Allen (Mass.) 207; In re Dougherty's Estate, 34 Mont. 336, 86 Pac. 38; Carlin v. Sewall, 86 Neb. 367, 125 N. W. 606. See 18 Cyc. 400; 24 C. J. 265.

64 Marskey v. Lawrence, 121 Mich. 577, 80 N. W. 571. See 18 Cyc. 404; 24 C. J. 272.

70

65 In re Bennison's Estate, 173 Iowa 368, 155 N. W. 835. See 18 Cyc. 404; 24 C. J. 271.

68 Pulling v. Durfee, 88 Mich. 387, 50 N. W. 319.

67 Dale v. Hanover Nat. Bank, 155 Mass. 141, 29 N. E. 371. See 18 Cyc. 404; 24 C. J. 272. 68 See § 53.

69 In re Fretwell's Estate, 152 Cal. 573, 93 Pac. 283.

70 Strauch v. Uhler, 95 Minn. 304, 104 N. W. 535; Benz v. Rogers, 141 Minn. 93, 169 N. W. 476.

the appeal of the executor the district court affirmed the action of the probate court. Thereupon the probate court made an order requiring the executor to pay the allowance in accordance with the terms of the original order. Held, that certiorari would not lie to review this last order; that the executor's remedy was by appeal from the order refusing to vacate or modify the order making the allowance." A widow made no claim against the estate of her deceased husband for an allowance of a year's support until about a year after his death. Her claim was disallowed by the probate court and, before making an appeal from the order of disallowance, the widow died. Held, that she had waived her right to such an allowance, and the administrator of her estate succeeded to no right which he could enforce.72

INVENTORY AND APPRAISAL
INVENTORY

793. Statute-Within three months after his appointment, every executor and administrator shall make and return to the court a verified inventory and appraisement of all the real and personal estate of the decedent which shall have come to his possession or knowledge. Such property shall be classified therein as follows: 1. Real estate. 2. Furniture and household goods. 3. Wearing apparel and ornaments. 4. Stock in banks and other corporations. 5. Mortgages, bonds, notes, and other written evidence of debt. 6. All other personal property.73

794. Object―The primary object of the inventory is to fix the amount and value of the property for the purpose of accounting with the representative.74

795. Necessity-The duty to file an inventory is absolute. The probate court has no discretion in the matter and cannot excuse a representative from filing one. The court should require one regardless of the source of a complaint that none is filed.75 An executor must file an inventory though the will attempts to excuse him from doing so.01 It is provided by, statute that an executor who is the sole or residuary legatee, and who has given a special bond, need not file an inventory.7

71 State v. Steele, 62 Minn. 28, 63 N. W. 1117.

72 Smith v. Bayer's Estate, 95 Neb. 532, 145 N. W. 1029.

78 G. S. 1913, § 7305, as amended by Laws 1919, c. 385.

74 Morrison v. Burlington, etc. R. Co., 84 Iowa 663, 51 N. W. 75; In re Higgin's Estate, 15 Mont. 484, 39 Pac. 506; 11 A. & E. Ency. of Law (2 ed.) 855; 18 Cyc. 198; 23 C. J. 1159; Woerner, Am. Law of Adm. (2 ed.) § 315.

75 Poole v. Burnham, 99 Iowa 493, 68 N. W. 816; In re Duncanson's Estate, 141 Iowa 564, 120 N. W. 88; Hayes v. Welling, 35 R. I. 76, 85 Atl. 630; In re Higgin's Estate, 15 Mont. 484, 39 Pac. 506; 23 C. J. 1158.

01 Parker v. Robertson (Ala.) 88 So. 418.

76 See § 704. This may have been repealed by Laws 1919, c. 385.

The court may compel a representative to file an inventory and it may do so on the information of any one, whether interested in the estate or not. A representative may be removed for failure to file an inventory."

78

796. Time-The statutory limitation of three months is merely directory and does not render invalid an inventory subsequently filed." Where a representative is excused from filing an inventory within the prescribed time because he received no assets in that time, it is his duty to file one within a reasonable time after he first receives assets.80

797. Verification-The statute requires the inventory and appraisement to be verified by the affidavit of the representative.81

798. Additional or supplementary inventory-Only one inventory need be returned. If property subsequently comes into the possession or knowledge of the representative it is sufficient for him to charge himself with it in his final account.8 82

84

83

799. What property included-All property of the decedent, either real or personal, must be included. Property which has come to the "knowledge" of the representative must be included, though he may not be charged with it in his final account if it has not come into his possession. Property claimed by the representative must be included.85 Property of the estate must be included though claimed by third parties. Debts due from the representative to the estate must be included though he deems them invalid.87 When claims are doubtful they should be so inventoried.88 All choses in action, notes and other claims

77 Poole v. Burnham, 99 Iowa 493, 68 N. W. 816; 11 A. & E. Ency. of Law (2 ed.) 858; 18 Cyc. 201; 23 C. J. 1159; Woerner, Am. Law of Adm. (2 ed.) § 316.

78 In re Graber's Estate, 111 Cal. 432, 44 Pac. 165. See Corey v. Corey, 120 Minn. 304, 139 N. W. 509.

79 Phelan v. Smith, 100 Cal. 158, 34 Pac. 667; 11 A. & E. Ency. of Law (2 ed.) 857; 18 Cyc. 198; 23 C. J. 1159; Woerner, Am. Law of Adm. (2 ed.) § 316.

80 Forbes v. McHugh, 152 Mass. 412, 25 N. E. 622.

81 Phelan v. Smith, 100 Cal. 158, 34 Pac. 667; In re Lux's Estate, 100 Cal. 593, 35 Pac. 341; 11 A. & E. Ency. of Law (2 ed.) 860; 18 Cyc. 199; 23 C. J. 1160.

82 Hooker v. Bancroft, 4 Pick. (Mass.) 50. See 11 A. & E. Ency. of Law (2 ed.) 859; 18 Cyc. 200; 23 C. J. 1162; Woerner, Am. Law of Adm. (2 ed.) § 316.

83 G. S. 1913, § 7305; Bryant v. Livermore, 20 Minn. 313 (271) (real property must be included); 11 A. & E. Ency. of Law (2 ed.) 855; 18 Cyc. 199; 23 C. J. 1161; 11 R. C. L. 105; Woerner, Am. Law of Adm. (2 ed.) § 317.

84 In re Simmons' Estate, 43 Cal. 543, 549.

85 Buchser v. Buchser, 72 Wash. 675, 131 Pac. 193; Hartwig v. Flynn, 78 Kan. 595, 100 Pac. 642; State v. French, 60 Conn. 478, 23 Atl. 153.

86 Bourne v. Stevenson, 58 Me. 499; Dilts v. Stevenson, 17 N. J. Eq. 407; In re Belt's Estate, 29 Wash. 535, 70 Pac. 74.

87 Lynch v. Divan, 66 Wis. 490, 29 N. W. 213; In re Walker's Estate, 125 Cal. 242, 57 Pac. 991; In re Thomas' Estate, 140 Cal. 397, 73 Pac. 1059; 11 A. & E. Ency. of Law (2 ed.) 857; 23 C. J. 1160.

88 Black v. Whitall, 9 N. J. Eq. 572; Gay v. Grant, 101 N. C. 206, 8 S. E. 99.

must be included and it is immaterial that they are in the possession of a third party.89 Domestic judgments should be included." Interest in a partnership should be inventoried. It should be entered in a general way, giving the name, locality and business of the firm, and the decedent's share, without itemizing the property.91 It is proper, though perhaps not necessary, to inventory property fraudulently conveyed by the decedent. The fact of the fraud and the name of the grantee should be noted.2 Property held by the decedent in trust need not be included.93 Property out of the state need not be inventoried unless it has come into the possession of the representative. If a question arises whether property belongs to the estate and should be inventoried, the probate court has jurisdiction to hear evidence sufficient to determine whether it belongs to the estate, or whether the estate has any interest therein, or has any reasonable claim thereto; not for the purpose of judicially determining the title of any property claimed by a third person, but to determine the good faith and reasonable ground of the claim.95

94

800. Not conclusive against representative-Prima facie evidence— The inventory is prima facie evidence against the representative of the receipt of the assets included.96 The inventory is not conclusive, either for or against the representative, as to the existence or value of assets, either on his final accounting or in an action against him. Any error, omission or mistake may be corrected on the final accounting. The fact that a representative inventories property as part of the estate does not estop him from subsequently claiming title thereto in himself.98

89 Williams v. Morehouse, 9 Conn. 470; Potter v. Titcomb, 10 Me. 53.

90 In re Conser's Estate, 40 Or. 138, 66 Pac. 607.

91 Loomis v. Armstrong, 63 Mich. 355, 29 N. W. 867; In re Auerbach's Estate, 23 Utah 529, 65 Pac. 488; Cooley v. Miller, 168 Cal. 120, 142 Pac. 83; Hadley v. Hadley, 73 Or. 179, 144 Pac. 80; 11 A. & E. Ency. of Law (2 ed.) 857; 18 Cyc. 199; 23 C. J. 1161.

92 Sprague v. Walton, 145 Cal. 228, 236, 78 Pac. 645; Minor v. Mead, 3 Conn. 289; Andrus v. Doolittle, 11 Conn. 283; Andrews v. Tucker, 7 Pick. (Mass.) 250; 11 A. & E. Ency. of Law (2 ed.) 856; 18 Cyc. 200; 23 C. J. 1161; Woerner, Am. Law of Adm. (2 ed.) § 317.

93 In re Belt's Estate, 29 Wash. 555, 70 Pac. 74.

94 Strong v. White, 19 Conn. 238; Normand v. Grognard, 17 N. J. Eq. 425; 11 A. & E. Ency, of Law (2 ed.) 856;

97

18 Cyc. 190, 199; 23 C. J. 1162; 45 Am. St. Rep. 664. See, contra, In re Butler's Estate, 38 N. Y. 397.

95 In re Belt's Estate, 29 Wash. 535, 70 Pac. 74; Buchser v. Buchser, 72 Wash. 675, 131 Pac. 193.

96 Cameron v. Cameron, 15 Wis. 1; Hilton v. Briggs, 54 Mich. 265, 20 N. W. 47; In re Mullon, 145 N. Y. 98, 39 N. E. 821; 11 A. & E. Ency. of Law (2 ed.) 861; 18 Cyc. 203; 23 C. J. 1166; Woerner, Am. Law of Adm. (2 ed.) §§ 320, 510.

97 Hilton v. Briggs, 54 Mich. 265, 20 N. W. 47; Peckham v. Hoag, 57 Mich. 289, 23 N. W. 818; Porter v. Long, 124 Mich. 584, 83 N. W. 601; In re Fletcher's Estate, 83 Neb. 156, 119 N. W. 232; Dodge v. Lunt, 181 Mass. 320, 63 N. E. 891; 11 A. & E. Ency. of Law (2 ed.) 861; 18 Cyc. 202; 23 C. J. 1166; Woerner, Am. Law of Adm. (2 ed.) §§ 320, 510,

98 Baker v. Brickell, 87 Cal. 329, 25 Pac. 489; Rausch v. Rausch, 14 Mont.