The opinion
On Motion for Rehearing.
In his motion for rehearing appellee presents á hypothetical case, wherein the allowance for one'year’s support to the surviving widow exceeded, her one-half interest in the community estate. The hypothetical case was one in which there were no minor children, but only a surviving widow and adult children. It is then pointed out that, under our holding, the widow, upon final distribution, would be indebted to the adult children to the amount which her allowance exceeded one-half the value of the community estate. We are not called on to determine this particular question, because we have not that state of facts before us, but, assuming that our decision would have that effect, does that fact condemn it? We think not. This is not a case of equity. The’ only rights to any allowance at all are derived from the statutes, and the fact that, in the application of those statutes a rare case might arise wherein those entitled to the allowance may be liable to the other heirs of the estate for an accounting as to a portion thereof could not operate to change the statutory construction. The fact that she receives any allowance at all is because of the statutes. And, under the statutes, she would be entitled to no allowance, except in a case where there was a debt justifying an administration. To make her title to the allowance absolute when an indebtedness exists and the estate is solvent would be, in effect, to hold that the fact of the existence of a debt operates to modify the laws of descent and distribution.
That the laws of descent and distribution were not repealed or intended to be repealed by the Legislature by the statutes under construction is further supported and emphasized by the provisions of article 3484, R. S. 1925. This article is in chapter 16, the one dealing with allowances to the widow and minor children. It is there provided that, if there be both widow and minor child or children, the widow shall be entitled to one-half of the allowance and the minor child or children to the other one-half. Suppose a man dies, leaving a solvent community estate charged with certain debts, and leaving surviving him a widow and several minor children. The amount required for the support of these children for a year would greatly exceed the amount required for the support, of the widow. But this article recognizes the property rights of each, and provides that the widow shall receive one-half of the allowance. Whatever sum may be paid to the minors under this statute as an allowance for one year’s support must be offset by the payment of an equal sum to the widow, notwithstanding her necessities may not require the payment of that amount. That provision, it seems to us, is almost conclusive of the legislative intent not to change, by implication, the positive statutes of descent and distribution and thereby divest certain heirs of their title to property and vest same in other heirs.
We believe that a correct judgment has been rendered in this cause in this court, and the motion for rehearing will be overruuled.