§ 1441. Allowance May Be Made to Resident Widow Irrespective of Domicile of Husband. The fiction of law that personal property follows the owner and is considered as located in his domicile at the time of his death, does not apply to the payment of debts, legacies, costs of administration, inheritance taxes, or to the right of a widow to an allowance for the support of herself and children. The fiction that the law of the domicile governs personalty applies only to the distribution of the surplus of the estate and does not prevail against the provision of the statute allowing the widow who is an actual and bona fide resident of a state other than that in which her husband was domiciled at the time of his death, to be granted an allowance out of property situated in the state of her residence. Provision for the support of the widow is not in the nature of a distribution of the estate, but is a humane provision of urgency which takes precedence of other claims against the estate, and does not depend upon the domicile of the decedent at the time of his death if the widow be actually a bona fide resident of a state wherein property of the decedent is situated, and administration of such property is had therein.41 § 1442. Amount of Allowance, How Fixed. The purpose of an allowance to the widow of a decedent is to furnish means of immediate support until her share in her husband's estate has been set apart to her.42 Unless the statute fixes the amount to be allowed, the matter rests wholly in the discretion of the court. In fixing the 41 Jones v. Layne, 144 N. C. 600, 11 L. R. A. (N. S.) 361, 57 S. E. 42 Newans v. Newans, 79 Iowa 32, 44 N. W. 213. amount to be allowed for the support of the widow, the court is not restricted to an amount which will provide the widow merely with necessities, but regard should be had to her previous mode of life and the requirements of her home and social position, and with a view to the condition and value of the estate.43 The fact that the executor or administrator has not sufficient money on hand to pay the allowance does not deprive the court of its power to fix the amount. If there is other property of the estate which can be subjected to its payment, the court may so order." An order of the probate court making an allowance for the support of a widow will not be disturbed on appeal unless an abuse of discretion is clearly shown.45 §1443. Power of Court to Modify Order Granting Allowance to Widow. Where the court has discretionary power in fixing the amount of the allowance, it may, upon proper application and a showing that the amount originally allowed is insufficient for the support of the widow and minor children of the decedent, and that the condition of the estate will permit of a larger award, increase the amount.46 Likewise the court may make an order decreasing the amount originally allowed if, upon a hearing, it is shown 43 Estate of Stevens, 83 Cal. 322, 325, 17 Am. St. Rep. 252, 23 Pac. 379; Estate of Lux, 100 Cal. 593, 605, 35 Pac. 341; Estate of Pughsley, 27 Utah 489, 76 Pac. 560; Estate of Drasdo, 36 Wash. 478, 78 Pac. 1022. 44 Estate of Carriger, 5 Cal. Unrep. 129, 41 Pac. 700. 45 In re Lux, 100 Cal. 594, 35 Pac. 341; Kersey v. Bailey, 52 Me 198; Estate of Powers, 92 Mich. 106, 52 N. W. 298; Mathes v. Bennett, 21 N. H. 188. 46 Estate of Luther, 67 Cal. 319, 7 Pac. 708; Woodbridge v. Woodbridge, 70 Ga. 733; Gilman v. Gilman, 53 Me. 184; Cummings v. Allen, 34 N. H. 194; Sherman's Exr. v. Sherman, 21 Ohio St. 631. that conditions pertaining to the decedent's family have materially changed since the original order was made so as to warrant a reduction of the allowance. The order modifying the former decree, however, can not have a retroactive effect. The general rule is that the court, having discretionary power in fixing the allowance, has the same power, after notice, hearing and a due showing, to modify its order granting the allowance.48 Where the probate court has entered its order making an allowance to the widow of the decedent for her maintenance and support, and such order has become final, the court has no authority to vacate such order except on petition or motion to have the same set aside. Such an order is not open to collateral attack, even under the claim that the allowance was made to one not the widow of the deceased.49 § 1444. Order of Allowance Has No Extraterritorial Effect. A state has the right to provide by statute for the allowance out of the estate of a decedent of an amount to be fixed by the probate court for the support of the widow and family of the decedent. Such an allowance, however, can be enforced only against the property of the estate within the jurisdiction of the court making the order of allowance, and can have no extraterritorial force or effect.50 47 Harshman v. Stonaker, 53 Iowa 467, 5 N. W. 685; Baker v. Baker, 51 Wis. 538, 8 N. W. 289. Compare: Pettee v. Wilmarth, 5 Allen (87 Mass.) 144. 48 Marskey v. Lawrence, 121 Mich. 577, 80 N. W. 571; James v. 50 Smith v. Smith, 174 Ill. 52, 43 L. R. A. 403, 50 N. E. 1083. §1445. Settlement of Estate Must Not Be Delayed so as to Consume the Assets by Means of the Allowance. An allowance to the widow of the decedent for her maintenance generally continues for one year if the estate is insolvent. If the estate is solvent, the allowance continues during the progress of the settlement of the estate. The policy of the law is that the affairs of the estate should be settled and the residue distributed as speedily as possible. The widow who is the administratrix should not be allowed to purposely delay the settlement of the estate in order that she may consume the whole of it by means of her allowance. If she does so, the order fixing the allowance must be presumed to have been satisfied when the time shall arrive at which the estate may be settled.51 The court is justified in refusing to make an allowance to the widow after the estate is ready for distribution. The widow who is executrix or administratrix of the estate of her deceased husband can not delay the settlement of the estate in order that all the assets may be consumed by means of her allowance.52 After a reasonable period has elapsed for the settlement and distribution of the estate, parties interested therein have the right to object to a continuance of the allowance, and this right is not lost because they could have compelled the administrator to settle the estate and failed to do so.53 51 State ex rel. Speckhart v. Superior Court, 48 Wash. 141, 92 Pac. 942. See, also, Jesperson v. Mech, 213 fil. 488, 72 N. E. 1114; Dale v. Hanover Nat. Bank, 155 Mass. 141, 144, 29 N. E. 371. 52 In re Dougherty's Estate (Dougherty V. Dougherty), 34 Mont. 336, 86 Pac. 38. 53 In re Dougherty's (Dougherty V. Dougherty), 34 Mont. 336, 86 Pac. 38. Estate CHAPTER LV. RIGHTS, DUTIES AND OBLIGATIONS AS TO BURIAL OF DECEDENT. § 1446. Points to be considered. § 1447. Power of personal representative as to burial of decedent subordinate to that of surviving spouse and next of kin. § 1448. The same subject. § 1449. Surviving spouse of decedent has primary right to designate place and manner of burial. § 1450. Effect of directions of decedent as to place and manner of burial. § 1451. The same subject: Cremation. § 1452. Personal representative has no interest regarding reinterment of remains. § 1453. As to right of removal of remains once properly interred. § 1454. Burial plats and interests therein. § 1455. Erection of tombstone or monument. § 1456. Common law rule requires surviving husband to bear expense of burial of his wife. § 1457. Funeral expenses charged against estate of decedent. § 1458. What comprise funeral expenses. § 1446. Points to Be Considered. Upon the death of a decedent questions immediately arise as to powers, duties and liabilities in connection with the burial of the remains and the funeral charges. The importance of such questions is due to the sentiment involved rather than to the monetary expenditure, although those who incur obligations and those in whose favor obligations are incurred have an interest in knowing the source from which payment is to come. There appears to be a decided conflict of authority as to matters pertaining to funeral arrangements and charges growing |