Dissenting Opinion
Crumpacker, J.It seems to me that the court has indulged in the questionable practice of judicial legislation in reaching its decision.
*340Sometime prior to May 1,1947, John F. Kehr, an aged person, married and living with his wife, applied to the appellant for financial assistance and in due course an award was made whereby said applicant received, in monthly installments from May 1, 1947, to May 1, 1950, the aggregate sum of $2,589.10. The terms of this award were entered upon a certificate which was filed in the office of the recorder of Elkhart County on May 1, 1947, thereby giving “due notice of a lien against the recipient and his estate for any amounts recoverable under this act” and creating “a specific lien in favor of the state and county (welfare) departments against the real property of the recipient, which lien shall continue from the date of the filing of such notice, until such' lien is satisfied, and such lien shall take priority over any other lien subsequently acquired.” Sec. 51-1207, Burns’ 1951 Replacement.
John F. Kehr died on March 6, 1951, leaving surviving his widow Dora Kehr, who had been his wife for many years but who did not join in his application for old age assistance and -made no agreement with the appellant in respect thereto. His estate was adjudged insolvent and in the course of the administration thereof the court declared that, after costs of administration, last sickness and burial, the widow’s statutory allowance of $1,000 should be paid first and the appellant’s lien discharged second. I believe that this is error.
The statute pertaining to a widow’s allowance is §6-711 Burns’ 1933. It was enacted in its present form in 1881 and, except for the amount of the allowance, has remained unchanged to this day. It provides as follows:
“The widow of the decedent, whether he die testate or intestate, may at any time before the sale, select and take articles therein named at the appraisement, not exceeding in the aggregate, one thousand dollars ($1,000). Each article taken by *341her shall be so noted on the inventory opposite the article taken, or a separate inventory may be made of the articles so taken and returned with the general inventory. She shall execute a receipt therefor to the executor or administrator, which shall be returned and filed with the inventory. If the widow fail or refuse to select and take all or any part of the articles in this section provided, she shall be entitled to the amount of the deficiency in cash, out of the first moneys received by the executor or administrator, in excess of the amount necessary to pay the expenses of administration, and of the last sickness and funeral of the deceased: Provided, That if the estate be clearly solvent, she shall be entitled to such payment out of the first moneys received by such executor or administrator. If the personal estate of the decedent be insufficient to pay the amount that may be due the widow in cash, as aforesaid, the deficit shall constitute a lien upon the real estate of the decedent liable to sale for the payment of debts, which lien may be enforced upon the petition of the executor or administrator in like manner as lands of the decedent are sold for the payment of debts, and shall be superior to the lien of judgments upon said real estate rendered against the decedent.”
This statute has been held to vest in the widow no interest in the decedent’s estate but merely gives her a preferred claim payable out of personalty, if sufficient, and if insufficient then the balance becomes a lien on the decedent’s lands which shall be sold to pay it. Claypool v. Jaqua, Administratrix (1893), 135 Ind. 499, 35 N. E. 285; In re Mertes Estate (1914), 181 Ind. 478, 104 N. E. 753; Rush v. Kelley (1905), 34 Ind. App. 449, 73 N. E. 130. In 1947 the legislature, with full knowledge of the law concerning the priority of a widow’s claim for her statutory allowance, enacted §52-1214 Burns’ 1951 Replacement which provides that: “Any claim filed for recovery of aged assistance shall have priority in order of payment from the estate over all other claims, except prior recorded encumbrances, *342taxes, reasonable costs of administration, and funeral expenses in an amount not to exceed $125.00.” Significantly the widow’s claim for her statutory allowance is not excepted. That the legislature had the widow’s interests in mind but nevertheless intended that the welfare claim should have priority, is evidenced by the following provisions of the same statute: “If the real estate of a deceased recipient is occupied by a surviving husband or wife, the Department of Public Welfare shall not assert its lien or claim during the lifetime of said surviving spouse unless other claimants or persons have opened an estate and are attempting to enforce their claims in which case the department shall file and assert the claim for recovery of old age assistance.” As this court recently said: “It must be conceded that the priority of statutory liens is determined by the statutes creating them. The legislature has the undoubted power to specify circumstances under which a lien shall come into existence and to give such lien priority over all others excepting those existing when the act was passed.” Phlipo’s Estate v. Mercantile Nat. Bank of Hammond (1953), Ind. App., 111 N. E. 2d 93, 53 C. J. S. Liens §10, cases cited. The widow’s allowance statute creates a lien on a decedent’s real estate only if his personal estate is insufficient to pay it, in which event the deficiency becomes a lien on his real estate “superior to the liens of judgments upon said real estate rendered against the decedent.” Sec. 6-711, supra. The welfaré lien is not a judgment lien and as the act which creates it gives it preference over all other liens subsequently acquired I cannot escape the conclusion that it is superior to that of a widow’s claim for statutory allowance which necessarily came into existence subsequent to an award to her decedent for old age assistance. The two claims clash only when it is necessary to pay them both out of real estate which *343is insufficient for the purpose. In that event the legislature has clearly given preference to that of the Department of Public Welfare.
The court seems to have relied' somewhat upon the principle that when two statutes are in irreconcilable conflict, the last one in order of time is deemed to prevail. To bring this doctrine into play it treats the widow’s allowance statute of 1881 as having been re-enacted in 1949. It doesn’t seem to me that such.is the fact. The act of 1949 to which the court refers merely amended the widow’s allowance statute, as its title indicates, by substituting the words “one thousand dollars” for the words “five hundred dollars” and in point of time the welfare act remains the legislature’s latest expression on the subject of priority of liens.
I am in entire sympathy with the result reached by the court but believe its decision invades the province of the legislature and I would therefore reverse.
Achor, J., concurs in dissent.
Note. — Reported in 112 N. E. 2d 451.