Western Nat. Bank of Pueblo v. Rizer

• Decision Date: 14 November 1898
• Parties: WESTERN NAT. BANK OF PUEBLO v. RIZER. [1]
• Court: Colorado Court of Appeals

55 P. 268

12 Colo.App. 202

WESTERN NAT. BANK OF PUEBLO v. RIZER. ^[1]

Court of Appeals of Colorado

November 14, 1898

Appeal from district court, Pueblo county.

In the matter of the estate of D.N. Jones, deceased. An order confirming the report of J.E. Rizer, administrator, was affirmed by the district court, and exceptant, the Western National Bank of Pueblo, appeals. Affirmed.

Wm. B Vates, for appellant.

J.E Rizer, pro se, and H.P. Vories, for appellee.

THOMSON P.J.

On January 24, 1889, there was filed in the county court of Pueblo county an inventory of the real and personal estate of D.N. Jones, deceased. Afterwards, on January 28, 1889, there was filed in the same court a bill of appraisement of the goods, chattels, and personal estate of the deceased. The warrant of appraisement contained, among other things, a printed blank form to be used by the appraisers in making and certifying an estimate of the value of the several items of property allowed by law to the widow together with a printed list of such items, and instructions to the appraisers to make the estimate, no matter whether the articles named in the list could be found in the property belonging to the estate or not. The estimate was made, and returned with the appraisement. The value of the articles was fixed at $1,835. On October 16, 1895, J.

Rizer administrator of the estate, de bonis non, filed his report, showing total receipts, total expenses, and balance on hand, stating that the only claim against the estate which was unpaid was one of $8,000 in favor of the Western National Bank of Pueblo; also stating that on the 1st day of February, 1889, the sum of $1,835 was allowed to the widow, and that the allowance had not been paid; and asking an order from the county court authorizing him to pay the amount over to her, and to pay the balance in his hands upon the claim of the bank. On November 7, 1895, the bank filed its exceptions to the report, among which was an exception to the request for an order authorizing the payment of the widow's allowance, on the ground that it appeared from the records of the estate that certain articles of property had been set apart to her as her allowance, and that she had elected to take cash in lieu thereof, but that she had never accounted to the estate for the property. On the 17th day of March, 1896, a hearing of the exceptions was had, at which, upon the evidence adduced, an order was made disposing of all of the exceptions. The exception which related to the widow's allowance was overruled, and the sum of $1,835 was adjudged to her, to be paid out of the estate, in accordance with the recommendation of the report. Afterwards, on April 11, 1896, the administrator filed his further report, showing some additional moneys which had come into his hands, and some additional expenses of administration, and also showing payment to the widow of her allowance in accordance with the former order of the court. On April 20, 1896, the bank excepted to this report, raising the same objection in respect to the widow's allowance which was embraced in the exceptions first filed, and which had been passed upon by the court. Thereupon the administrator moved the court to strike the new exceptions from the files, for the reason that the question which they sought to raise had been finally determined by the court in its former order. The motion was sustained, and the former order reaffirmed. The bank appealed from the judgment to the district court. In that court the orders and rulings of the county court were upheld, and judgment rendered accordingly. Thereupon the bank made its appeal to this court.

A resident widow is allowed to have and retain, as her sole and separate property, certain enumerated articles, to be set apart to her by the administrator out of the estate, provided that, in case the intestate shall not leave any or all the articles specified, she shall be entitled to other...