Harshman v. Slonaker

Adams, Ch. J.

, „,_ArnT, Sow0? review °f. Section 2375 of tbe Code provides that tbe court may make an allowance to tbe widow for ber support for twelve months. Section 2377 of. tbe Code provides for a review of the allowance, and a reduction of the same if tbe court shall be satisfied that it is too large.

It is not expressly provided within what time a petition for tbe review of tbe allowance should be filed. But we are not left without an indication. If an allowance is to be reduced it should be done while ther'e is something ripon which tbe reduction could operate. If tbe administrator lias paid over to tbe widow tbe amount allowed, and especially if she has expended it, a mere order reducing tbe allowance would have no effect. Tbe appellant insists in this case that tbe petition for review was filed too late. It was filed one year and seven months after tbe order of allowance was made.

No question arises as to whether tbe amount bad been paid *469 over by tbe administrator to the widow, as the widow herself was administrator. If there was anything in her hands upon which the reduction could operate, the court might doubtlesh, in its discretion, make the reduction. There is some evidence tending to show that she has expended her allowance, but it is not important for us to inquire what the fact is in that respect. It is proper that- the order. for a reduction should stand, and she must respect it to the extent of any unexpended balance of the allowance in her hands. But we think that the court below went too far in making an order that she should, account for the amount of the reduction. If she has expended it, such fact does not constitute a ground of recovery against her. The statute affords no warrant for any such proceeding. The creditors can look only to the assets unless the administrator has been guilty of a misappropriation. But the spending of an allowance before it is questioned cannot be deemed a misappropriation, especially if it is not questioned 'until after the lapse of the year for which the allowance was .made.

As to the property bought by Mrs. Slonaker, we have to say that we see no error in. requiring her to pay the difference between its value and what she had already paid. MThere trustees are charged with the duty of selling trust property they should sell for the best price which they can properly obtain. They cannot become buyers at their own sales without occupying á position inconsistent with their duty as trustees. Such sales, therefore, may be set aside at the option of the beneficiaries. In this case, however, Mrs. Slonaker had made repairs upon the property, and she was allowed to retain ■it upon paying enough to make the full value thereof at .the .time she bought.

Modified and Affirmed.