dissenting. I can not agree with the judgment rendered by a majority of the court. It appears from tbe record that Mrs. Fulghum applied for the setting apart of a year’s support out of the estate of her deceased husband. From the judgment of the ordinary fixing the amount to be so set aside, an appeal was taken to the superior court, and final judgment rendered in August,1898. It also appears that in January, 1898, after the death of her husband, the administrator of his *640estate advanced to the widow one hundred dollars as a part of the year’s support to which she was entitled. The administrator sought to have the amount which he had advanced in January credited upon the amount which was fixed by the jury on appeal in August thereafter. The judgment of this court is that the credit can not be allowed, although it is not contested that the widow received the amount as a part of the support tó be thereafter set aside. This ruling must have been made on the theory that the final adjudication of the amount to be set apart fixed not only the amount which should be allowed, but went further and determined that she had received no part of such sum. I maintain that the latter issue was not involved in the case. In his opinion Mr. Justice Fish says: “It is very evident that, if this were an ordinary judgment, an affidavit of illegality, which set up a payment made to the plaintiff in execution prior to the rendition of the judgment,would have no standing in court, as it would seek to go behind the judgment. Unless, therefore, the effect of a judgment setting apart a year’s support is different from that of other judgments, this affidavit of illegality is without merit.” Certainly, the effect of a judgment setting apart a year’s support is different from that of other judgments. Indeed, the legal effect of the judicial act involved in setting apart a year’s support is only in a limited sense a judgment. By the Civil Code, § 3465, a provision for the support of the family of a decedent is declared to be an expense of the administration of such estate, and that such necessary expense has priority of all other debts. So that the law absolutely gives to every widow the right to have a year’s support set aside from the estate of her deceased husband, and if the applicant be the widow, no question can be made on this right, nor is any adjudication necessary to establish it, if it be conceded that she is the widow. After declaring the existence of this right of support, the section last referred to provides the manner in which the amount and character of the property set apart for this support shall be ascertained. It is also provided by the Civil Code, § 3467, that, in the absence of objection, the ordinary shall record the return so made, in a book to be kept for this purpose, and by the same Code, §3471, the ordinary may issue a writ of fieri facias *641against the representative of the estate for the amount so awarded as aforesaid. From these provisions of our statute law the conclusion is inevitable, that, in the absence of pleadings denying that the applicant is the widow, or that she has already been furnished with a year’s support and is not for that reason entitled, there is but one question which can be adjudicated, and that is what amount shall be set apart. In reference to such amount, the statute declares that this shall be “a sufficiency . . for support and maintenance for the space of twelve months, . . to be estimated according to the circumstances and standing of the family previous to the death of the testator or intestate, and keeping in view also the solvency of the estate.”
In the present case, the right of the applicant to have a year’s support was conceded, and the only contest was as to the amount. The object of the statute is to furnish the widow and children maintenance out of the estate of the husband until they have a legal right to demand their share as legatees or heirs at law, and it is an exceedingly harsh rule which declares that when an administrator, acting in good faith, contests the amount which ought to be set aside as such support, he can not in the meantime, without danger to himself, advance a sufficiency from the estate to maintain these beneficiaries pending a determination as to what is a proper amount. In my judgment no such rule is deducible from our statute. Indeed, it is expressly provided that from the judgment of the ordinary fixing the amount an appeal may be taken to the superior court, and also that, if an appeal be taken, pending the appeal the family shall be furnished with necessaries by the representative of the estate. Civil Code, § 3467. Surely, if he complies with this mandate, he is not chargeable with the amount finally fixed, to the exclusion of the amount which he had before that time furnished. The judgment rendered was simply the legal ascertainment of the amount which should be taken from the estate of the decedent to support the widow and children for one year, and is conclusive to this extent. For this amount an execution may issue against the administrator, and for this amount he is entitled to credit in his account with the estate, and it matters not, in contemplation of law, whether any *642part' or portion of the amount so fixed has been paid prior or subsequently to a judgment fixing the amount to be so devoted. I have carefully examined the authorities referred to by Mr. Justice Fish, and find nothing in #.ny of them which contravenes this view of the law. It is a sound proposition that a judgment of the ordinary setting apart a year’s support can not be collaterally attacked. Here there is no attack whatever upon the judgment. The conclusive presumptions which arise in its favor are, that the widow is entitled to a year’s support, and the sum named is the proper amount to be taken from the éstate of her husband. It was not sought in this case to attack the judgment, nor to set aside any presumption in its favor. It was only desired to show that a part of the amount which had been awarded to the widow had been paid. If it had, then the law was fully accomplished, and to' rule otherwise would be to give to the applicant an amount greater than that which it had been legally determined she was entitled to have. Such is the effect of the ruling made in this case. From its •correctness I dissent.