Opinion
No. 36182.
October 28, 1946. Suggestion of Error Overruled November 25, 1946. Motion to Correct Judgment Overruled November 25, 1946.
1. EXECUTORS AND ADMINISTRATORS.
Florida statutes permitting payment of wages and traveling expenses, if less than $300, to deceased employee's wife without administration apply only to estates administered in Florida and did not entitle widow to hold exempt from administration in Mississippi wages of deceased husband collected by her, though husband was employed in Florida (F.S.A., secs. 222.15, 222.16).
2. EXECUTORS AND ADMINISTRATORS.
Widow was liable to estate of deceased husband for wages owing to husband at his death and collected by widow.
3. EXECUTORS AND ADMINISTRATORS.
Widow's right to allowance for a year's support is absolute and could not be made conditional on payment to deceased husband's estate of wages owing husband at his death and collected by widow (Code 1942, secs. 561, 564).
APPEAL from the chancery court of Lauderdale county, HON. GEO. B. NEVILLE, Chancellor.
Cameron Wills, of Meridian, for appellant.
The wages and expenses paid the widow were not recoverable under the Florida law.
Code of 1942, Sec. 653-655; Florida Statutes Annotated, Vol. XI, Title XIV, Secs. 222.15, 222.16.
The administrator had no standing or authority to contest the award and payment of the widow's allowance.
Prentiss v. Turner, 170 Miss. 496, 155 So. 214; Gilmer v. Gilmer, 151 Miss. 23, 117 So. 371; Morgan v. Morgan, 36 Miss. 348.
It was error for the court below to tie up the widow's allowance with the question of her supposed indebtedness to the estate and to refuse to entertain her claim for widow's allowance until the indebtedness should be paid and to refuse such payment of her widow's allowance upon her failure to pay the indebtedness to the administrator.
Pratt v. Pratt, 155 Miss. 237, 124 So. 323; First Nat. Bank v. Donald, 112 Miss. 681, 73 So. 723; Gilmer v. Gilmer, supra; O'Brian Bros. et al. v. Wilson et al., 82 Miss. 93, 33 So. 946; Code of 1942, Secs. 307, 318, 548.
J. Thomas Dunn, of Meridian, for appellee.
The claim of the widow for the one year's allowance is inferior to the claim for costs of administration expenses of last illness and funeral expenses where the estate is insolvent.
Dabney v. Continental Jewelry Co., 163 Miss. 1, 140 So. 338; First Nat. Bank v. Donald, 112 Miss. 681, 73 So. 723; Code of 1942, Secs. 561, 623; 21 Am. Jur. 606, Sec. 393, p. 607, Sec. 394, p. 608, Sec. 395.
The amount of the widow's allowance is within the sound discretion of the chancery court and the order requiring the widow to refund the sum of $263.14 is well within that discretion in looking toward such final order as may be entered.
Whitehead v. Kirk, 106 Miss. 706, 64 So. 658.
The administrator filed a petition against appellant for the payment into the estate of her deceased husband of the sum of $263.14, representing a collection by her of wages owing to decedent at his death.
To this petition appellant filed answer basing her contention of non-liability upon the fact that such aggregate sum was paid to her by the Comptroller General of the United States as having been earned by her husband as a member of the employed force of the Office of Division Engineer, a subdivision of the War Department. To her denial she appended a prayer that the Court set aside to her, as the widow, a suitable allowance for subsistence.
The Chancellor decreed her liability to the estate in the amount claimed and further decreed that "the petition of Helen McRoy Westbrook for her widow's allowance be, and it is, held in abeyance until said money is paid, and if said $263.14 is not paid over to H.A. Shotts, Administrator, within fifteen days from the date of this decree, it is ordered and decreed that the said petition be automatically dismissed."
Though not set forth in her pleading as a defense to the demand, appellant relies upon the statutes of the State of Florida in which her husband had been employed. These statutes permit the payment by the employer to the wife of a deceased employee wages and traveling expenses, which if less than the sum of $300.00 "shall not be considered as assets of the estate and subject to administration." "Fla. Stats. Ann., Vol. XI, Title XIV, Secs. 222.15, 222.16.
The Florida law must be held to apply only to estates therein administered. We find no cause for affirming the decree establishing appellant's liability to the administrator.
Appellant attacks that part of the decree making conditional her right to allowance as widow for a year's support. We think this point is well taken. Her right thereto is absolute, Code 1942, Secs. 561, 564, and ought not to be involved in issues raised by claims of the administrator against her. Prentiss v. Turner, 170 Miss. 496, 155 So. 214; Pratt v. Pratt, 155 Miss. 237, 124 So. 323.
We are of the opinion that the two issues are not only separable but must be separated. Yet the matter of the widow's allowance was here raised by her prayer therefor, inserted in her response to the administrator's demand. Regardless of the fact that, or the extent to which, the item of wages may later become relevant, under other procedures, the issue raised by the petition was solely her liability to the estate for this asset.
The issue of priority between preference claims, made the subject of testimony and argument, is not properly before us.
In our judgment, so much of the decree as placed conditions upon appellant's right to her allowance as widow, is improper and the decree is therefore affirmed as to appellant's liability for wages collected, and reversed insofar as it relates to such allowance as widow and will be here amended accordingly.
So ordered.
Sydney Smith, C.J., did not participate in this decision.