(dissenting): I find myself unable to agree with the majority opinion in this matter. I believe G. S. 1949, 59-403 in plain and unambiguous language in its very provisions exempts property under the statutory allowances from any and all claims against a decedent’s estate whether such claims are by creditors, heirs, devisees, legatees, or other claimants. The statute, in part, reads:
“. . . The property shall not be liable for the payment of any of decedent’s debts or other demands against his estate, except liens thereon existing at the time of his death. . . .” (Emphasis supplied.)
While, in this case, there are no creditors seeking the conclusion that the surviving spouse waived all her statutory rights provided and guaranteed to her by law or statute, the rule promulgated in the majority opinion will be no less determinative should a similar case arise where creditors of decedent are the only contenders that the surviving spouse so waived her rights. To my way of thinking, the whole serious purpose of 59-403 could thereby be defeated. As was so ably stated in 1 Kansas Probate Law and Practice, rev. ed., § 243, tire basic purpose of the statute is:
“The allowance in the sum of seven hundred fifty dollars to the surviving spouse, from tire personal property of a decedent’s estate, is a common fund, intended to be used by the surviving spouse for the common benefit of such spouse and the decedent’s minor children, if any, during the period of their minority and as long as such spouse and children live together, and no part of such allowance is liable for the individual debts of the surviving spouse. The purpose was that they should not be left entirely destitute. [Citing O’Dell o. O’Dell, 157 Kan. 351, 139 P. 2d 376.]” (p. 301.) (Emphasis supplied.)
I believe that paragraph two of decedent’s will does nothing but give the executors power to sell his property for the purpose of paying decedent’s debts, that paragraph four refers to decedent’s silverware and china or chinaware but does not state they were used by decedent and his surviving spouse in maintaining their home, or were even capable of being listed as items under the statutory allowances, and finally, by paragraph six and the consent of the spouse to the will, I believe she waived her statutory right to share in one half of all of decedent’s estate, that she consented that *379decedent could will away to his three sons part or all of her one half, and that she accepted his bounty of one half of the residue in lieu of her statutory right to one half of all his estate.
I am of the opinion that 59-403 should be most liberally applied in favor of a surviving spouse and in view of the above stated reasons, my conclusion is that the widow here did not waive her right to the statutory allowances and the judgment of the trial court should be reversed.
Wertz and Jackson, JJ., concur in the foregoing dissenting opinion.