1. EXECUTORS AND ADMINISTRATORS — Claims — Widow's Allowance. Under C. L. § 5331, demands against estates which are legally adjudicated under classifications first, second and third, take precedence over a widow's allowance, which is a demand of the fourth class.
MR. JUSTICE MOORE delivered the opinion of the court.
EDNA D. M. Reininger, defendant in error, was appointed administratrix of the estate of her husband, Morris Reininger, a druggist, who died May 30, 1930. By order of the Denver county court, she continued to operate deceased's drug store business at 1894 South Pearl, the premises being rented from plaintiff in error. Mary Eisenberg, at a rental of $65 per month. Of the total amount, $715, so due for rent, the administratrix paid $371.50, leaving a balance of $343.50 which amount was allowed by the county court as an expense of administration and a statutory claim of the second class.
Upon petition of defendant in error, she was allowed a widow's allowance of $2,000, also adjudged to be an expense of administration, and of the second class. Other claims incident to said operation of the drug store were allowed as second class demands. Thereafter upon petition of the administratrix and over the objection and exception of plaintiff in error, the court ordered a twenty-five per cent distribution on said claims, including the widow's allowance, as expenses of administration. Upon appeal, the district court affirmed the judgment of the county court holding that "the claim of Edna D. M. Reininger, widow, for the sum of two thousand ($2,000.00) dollars, as a widow's allowance, is an expense of administration and a second class claim against this estate."
A single question is here presented. Is a widow's allowance payable as a second or fourth class claim? The pertinent provisions of section 5331, C. L. '21, are:
"All demands against the estate of any testator or intestate shall be divided into classes in manner following:
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"Second — Expenses of administration and settlement of the estate, shall comprise the second class.
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"Fourth — All allowances to the widow, wife or orphan made as provided by law shall compose the fourth class."
This statute is definite, certain and mandatory and must be construed according to its plain and indisputable intendment. Demands which are legally adjudicated under classification first, second and third, take precedence over a widow's allowance which is a demand of the fourth class.
In Wilson v. Wilson, 55 Colo. 70, 72, 132 Pac. 67, we held: "The statutory allowance to the surviving wife is a provision for her support, and is given independent of her distributive share in her husband's estate. While it cannot be treated as a debt against the estate, it is a claim to be preferred over legatees and distributees, and all other claims against the estate of her deceased husband, except debts due the United States, liens for taxes, and vendors' and landlords' liens, necessary administration expenses and expenses of last sickness and funeral."
In Hale v. Burford, 73 Colo. 197, 200, 214 Pac. 543, it is stated: "This court has held that the widow's allowance is not a debt or demand of that nature, that it is not a debt of, or an interest in, the estate, but a preferred claim, in the nature of costs of administration superior to claims of the fifth class, which are ordinary contract debts against the estate."
Defendant in error cites the foregoing and also Deeble v. Alerton, 58 Colo. 166, 143 Pac. 1096; Grover v. Clover, 69 Colo. 72, 169 Pac. 578; DeQuintana v. Madril, 71 Colo. 123, 204 Pac. 483; Remington v. Remington, 72 Colo. 132, 209 Pac. 802; Ahlf v. King, 88 Colo. 425, 298 Pac. 647 in support of the contention that a widow's allowance properly should be classified as an expense of administration and a claim of the second class. In none of these cases was the question here presented involved or determined.
Pertinent statutory provisions appear to expressly recognize that the widow's allowance, whether awarded in money, personal property or real estate, is subject to the statutory classification of claims. Thus, under C. L., section 5349, if the widow elects to take other property, or the value of the same in money, it is provided that "said allowance [is] to be paid or delivered to her in its proper order."
Further, under C. L., section 5351, when the personal estate is insufficient to pay the allowance and it becomes necessary to sell real estate for that purpose, "such allowance shall be paid from the proceeds of such sale of real estate in the same order and manner as it is entitled to be satisfied out of the personal estate."
Again, under C. L., section 5352, when realty is decreed to widow or child in lieu of sale, it must appear, "that there are no claims against said estate superior to such allowance."
The above statutes in pari materia and construed together would seem to afford additional grounds for our conclusion that the statute contemplates other claims against the estate superior to the widow's allowance, and since it expressly designates such allowance as a claim of the fourth class, no other conclusion can be reached.
Our decision must not be construed as a determination that the claim of plaintiff in error was legally of the second class, because this question is not presented by the record and if it were, defendant in error is in no position to resist it. As administratrix, by court order based upon her petition, she continued to operate her husband's business for many months. It would be inequitable and unjust in the circumstances to permit the estate to retain the profits of such venture and not to hold it responsible for losses.
If the widow's allowance were payable as a second class claim on an equality with the claim of plaintiff in error, the estate funds being insufficient to liquidate all such claims in full, a pro rata distribution would be, as here ordered, necessary. Plaintiff in error would thereby be compelled to donate to the estate an amount equal to the balance of rent remaining unpaid after such distribution.
A widow's allowance always should and must be protected whenever possible. Here such protection is unavailing because the widow cannot avoid her acts and obligations as administratrix.
Judgment is reversed and the cause remanded with directions for further proceedings in harmony herewith. On Rehearing.
On rehearing the court adheres to the original opinion, but Mr. Justice Campbell, Mr. Justice Butler and Mr. Justice Burke dissent.
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