DISSENTING OPINION SUPPLEMENTAL
OPINION
By HURD, J:(Dissenting) (Supplemental):
Since writing a dissenting opinion herein, based solely on the proposition that this case was not before this Court for determination on the merits, a motion to certify has been filed on the ground of conflict with the decision of the Court of Appeals of the Seventh District, in Matter of Estate of Shive, 65 Oh Ap 167.
Believing that the motion to certify should be allowed, I think it proper now to express my views on the subject matter contained in the majority opinions.
I am unable to agree with that part of the majority opinion which holds:
“that if after the husband dies his wife dies also within the period of one year, the obligation of support must end as of the date of her death, and such fact should be considered in setting off the widow’s allowance for support if her death occurs before the appraisers act under §10509-74 GC * *
The statutes do not so provide and this court may not indulge in judicial legislation. If there is to be any change in the widow’s year’s allowance, as fixed by statute, to correspond with the number of months short of a year, by which she survives her deceased spouse, that change must be made by legislative enactment and not by judicial decree.
The courts'of this state have held that the widow’s year’s allowance becomes a vested right of property which “goes immediately into her hands” upon the death of her husband. *117This proposition is established by the following cases:
Dorah’s Admr. v. Dorah’s Exec. 4 Oh St 292; Bane v. Wick, 14 Oh St 505; In re Estate of Crouse, 44 Oh Ap 31; In the Matter of Estate of Shive, 65 Oh Ap 167.
The substance of the holding in the Dorah case, supra, is that the widow’s allowance fixed by the appraisers in the absence of an appeal to the court, is a vested right of property which accrues to her absolutely immediately upon the death of her husband and is not divested by her death or by any other contingency.
In that case, the widow died 24 days after her husband’s death and the court in holding that a balance unconsumed at her death could be recovered by her personal representative, held, as appears by the syllabus:
“1. The death of a widow to whom an allowance has been made under the forty-fifth and forty-sixth sections of the administration law (38 O. L. 154; see Sec. 6040 Rev. Stat.) before the expiration of the year, and before it has all been expended in her support, does not bar the right of her executor to recover the amount unpaid, from the executor of her husband.
2. Such allowance confers a vested right of property and is not divested by her death or by any other contingency, occurring after the amount has been fixed and allowed by the proper tribunal.
3. Whether, upon petition for such cause, the amount might be diminished by the probate court under the forty-eighth section.” Quare
In Bane v. Wick, 14 Oh St 505, the Court had for consideration, exceptions to a report of a master who grounded his finding on the proposition that the allowance required to be set off to the widow for her year’s support is a personal privilege in her favor, which she may ask for or not, as she thinks proper. That, if she does not, her personal representative cannot claim the benefit of it after her death, when she in her lifetime neither needed nor asked for it. In overruling this finding of the master and sustaining the exception, the court said in part, at page 513:
“The statute which gave the right, did not make it depend upon her necessities nor upon her asking or omitting to ask for it. It was the express duty of the appraisers to set it off to her, either in property, or money, and without regard to whether her husband died testate or intestate. *118Collier v. Collier, 3 Oh St 369. The property to be set off or the sum of money certified to be necessary for the purpose, is not to be included in the inventory but in a separate schedule.”
“The sum thus certified is classed among the debts, and is the second class which it is made the duty of the executor or administrator to pay. * * *.”
The court then quoted from Dorah’s Admr. v. Dorah’s Exc. with approval, including the conclusion that:
“the allowance conferred a vested right of property and was not divested by her death.”
The court then held that the executors of the widow:
“should be allowed what would have been a sufficient amount for such year’s support, and the same might be ascertained and fixed by the master in taking the account.” (Emphasis ours.) Syl. 3, Pg. 506.
In re Estate of Crouse, supra, the widow died some twelve years after her husband. In 1931, about fifteen years after the husband’s decease, an application was made in Probate Court asking that said Court order a year’s maintenance to be set off from the estate of the deceased husband for the benefit of the estate of the deceased wife. The application was granted and on appeal to Common Pleas Court the same finding was made and the Court of Appeals affirmed the judgment of both Probate and Common Pleas Courts.
In the matter of Estate of Shive, supra, the widow died seven months after her husband’s death and it was there held that her right to a year’s allowance could not be denied her estate even though it had not been set off to her.
In the Shive case the estate had been closed within the statutory period and was reopened for the purpose of allowing to the widow her statutory widow’s exemption and widow’s allowance. The following language at pages 170 and 171 of the opinion are, I think, pertinent to this discussion:
“Having determined the right of the Probate Court to reinstate or reopen the estate of Simon A. Shive we pass to a consideration of the right of the estate of Ada Belle Shive to the year’s allowance provided for the widow in §10509-74 GC. If the estate of Simon A. Shive were not fully settled and administered, the estate of Ada Belle Shive would be en*119titled to such allowance, and in similar cases the courts of this state have consistently so held. But the administrator of the estate of Simon A. Shive claims that since the latter’s estate was closed the allowance does not survive to her estate, and her estate cannot avail itself of such allowance.”
The concluding paragraph of the opinion is as follows:
“Clearly the appraisers of the estate of Simon A. Shive failed to discharge the duty imposed upon them by §10509-74 GC, to set off to Ada Belle Shive, his widow, her year’s allowance, and under these conditions it became and was the duty of the Judge of the Probate Court to fix that allowance upon evidence submitted which he did, and with whose finding the Court of Common Pleas did not interfere and with the judgment of the latter court this court will not interfere.” (Emphasis ours.)
Having the highest respect for counsel who have well and ably set forth their respective arguments on the question here discussed, I deem it proper to note here that counsel for appellant stated in argument on Jan. 17, 1950, that a reversal of Judge Van Horn’s ruling in this case might furnish a basis for certification to the Supreme Court on the ground of conflict with the decision in the case of In re Estate of Shive, supra. Counsel for appellant now say. in their brief contra motion to certify, that
“the further information supplied by counsel for appellee serves to indicate that the ruling in the Shive case was the result of special circumstances indicating no conflict with the holding of this Court now under examination.”
The concluding paragraph of the Shive case above quoted shows, that the Probate Court set off and fixed the year’s allowance on evidence submitted. The evidence in the form of stipulations of counsel and the certified copy of the journal entry attached to the motion to certify on the ground of conflict, clearly shows that over two years after the death of the decedent and approximately two years after the death of the widow, the probate court set off “to the surviving spouse or her estate” the exemption provided therefor under §10509-54 GC, and then set off the year’s allowance in these words:
“That the year’s allowance to the widow was not fixed by the appraisers of the estate of Simon A. Shive although she *120was entitled to the same while living and her estate is now entitled to the same.” (Emphasis ours.)
Now, whether we conclude that the allowance of $600.00 in that case was computed at the rate of $50.00 per month for one year as contended by appellee, or whether it was computed on the basis of 50% of the net estate as contended by-appellant, the principle remains the same and I think places the majority decision in this case directly in conflict with the decision of the Court of Appeals for Columbiana County in the Shive case, when it affirmed the judgment of the Common Pleas Court, which in turn had affirmed the judgment of the Probate Court.
Passing now to a discussion of later Supreme Court cases, it has also been held in conformity with statute that the widow’s allowance under §10509-74 GC, is a debt and a preferred claim against the husband’s estate deductible before ,a determination of the share of the estate which may be taken under the statute of descent and distribution. In this respect it is comparable to the allowance given to the surviving spouse (widow or widower) under §10509-54 GC.
It was so held in the case of Davidson v. Miners & Mechanics Savings & Trust Co. Excr. et al, 129 Oh St 418, the 2nd paragraph of the syllabus of which is as follows:
“The widow’s year’s allowance and the allowance given to her under §10509-54 GC are a debt and preferred claim respectively, against her deceased husband’s estate, deductible before a determination of the share of the estate to be taken by the widow under the statutes of descent and distribution.”
The foregoing syllabus is quoted with approval and embodied in the opinion of Stewart J., in the case of Raleigh v. Raleigh, 153 Oh St 160, decided March 8, 1950, with the concurrence of a unanimous court, the first paragraph of the syllabus of which is as follows:
“The allowance given a surviving spouse under §10509-54 GC, is in the nature of a debt and preferred claim against the deceased spouse’s estate, and if a selection of property is not made or money in lieu thereof is not received by the surviving spouse during his lifetime, his personal representative may claim the allowance after the surviving spouse’s decease.”
*121While there are differences in nature and character, I see no distinction in principle between the widow’s year’s allowance under §10509-74 GC and the allowance given to the surviving spouse under §10509-54 GC. Both provisions accrue to the benefit of the widow immediately upon the death of her spouse; both are debts and preferred claims against the estate of the deceased spouse and in event of the death of the widow (except under the provisions of §10503-18 GC) her personal representative may claim the allowance after her decease.
The appellant seems to place some reliance on the case of In re Estate of Metzger, 140 Oh St 50. In my opinion, that case is not analogous, the question there presented being entirely dissimilar to the facts of the instant case. In that case the wife died within three days after the death of her husband. The syllabus is as follows:
“When a wife expires within three days after the death of her husband, or within thirty days from his demise, if their extinction is attributable to a common accident, he is deemed to have died last and his estate passes and descends accordingly, under §10503-18 GC. In such circumstances, there is no widow within the meaning and intent of the statute and no year’s allowance under §10509-74 GC, and no property not treated as assets under §10509-54 GC, may be claimed by her personal representative.”
Undoubtedly counsel have cited that case because of the language used by Zimmerman, J., in stating the purpose of §10509-74 GC, but in view of the facts, that language must be considered as obiter dicta for at page 53, the court said:
“Of course, if a wife dies in the ordinary course of events or from independent injuries more than three days after the death of her husband, or, if she succumbs more than 30 days after her husband’s demise, when she and he have been fatally hurt in a common accident, §10503-18 GC, is without application. Such contingencies are foreign to the pending litigation.”
Therefore, the application of the Metzger case must be confined to the narrow limits set forth in the syllabus, where death occurs as a result of a common accident. In such circumstances, there is of course as stated no widow within the meaning of the statute.
In the case of Estate of Raleigh, supra, the Court of Ap*122peals of Summit County as authority for its view, cited the case of In re Metzger. In the opinion reversing the Court of Appeals, Stewart J., in referring to the Metzger case, said:
“However, the Metzger case was entirely dissimilar to the instant case and simply decided as the syllabus states.”
Without laboring the point further, it appears that the great weight of authority in Ohio is to the effect that the widow’s year’s allowance is a vested right of property which is a preferred claim against the estate of the deceased spouse and which enures not only to her benefit but at her death to the benefit of her estate as well.
In summation, therefore, it seems to me that:
(1) This court may not in the absence of a bill of exceptions setting forth the evidence which was before the Probate Judge on the appeal from the order of the appraisers modify or reverse the judgment of the Probate Court;
(2) There is no error manifest on the face of the record;
(3) That even though this case is not before us on its merits nevertheless the law of Ohio, both statutory and case law, is such that a widow may not be deprived of her vested right’ of a year’s allowance which is not divested by her death or any other contingency and if she should die before the year expires her estate or personal representative may not be deprived of either the year’s allowance or the balance, if any, remaining in the administrator’s hands.
It appears to me that situations such as this would not arise if the executors or administrators would be prompt in causing the probate court to appoint appraisers seasonably and further, if the appraisers would promptly proceed to discharge the duties imposed upon them by law to fix the year’s allowance. We would have an anomolous situation if in every case the administrator or executor or the appraisers would delay fixing the year’s allowance to determine whether or not the widow would survive the period of one year after the death of her husband. This could only lead to confusion and a disregard of the intent and purpose of the probate laws governing the administration of estates. In the words of Justice Ranney, used in another connection in Dorah’s case, “it would be interpolating into a statute a contingency never contemplated by the legislature.”
For the reasons stated it is my opinion that the judgment of the Probate Court should be affirmed, and, failing this, the case should be certified to the Supreme Court on the ground of conflict with In re Shive, supra.