161 P. 1137 | Cal. | 1916
On April 19, 1913, Francis Cutting and Alice Duren entered into a contract with reference to their contemplated marriage. Mr. Cutting was seventy-nine years of age at the time and Miss Duren was more than forty-five years old. He was a widower possessed of a fortune worth approximately five hundred thousand dollars and was the father of two living adult children. On May 10, 1913, Miss Duren and Mr. Cutting were married. On July 10, 1913, he executed a codicil to his will which had been made prior to his marriage, said codicil operating as a republication of the testament. (Estate ofCutting,
It was admitted by Mrs. Alice M. Cutting at the bearing of her petition that she had received from the executors of the will $250 each month since the death of her husband.
The sole question presented on this appeal is whether or not the monthly payments provided by the contract made before marriage preclude the widow from demanding a family allowance. That contract, which was in writing, was in the following words and figures:
"In witness whereof we have set our hands this nineteenth day of April, 1913.
"(Signed) ALICE M. DUREN, "FRANCIS CUTTING."
The codicil was as follows:
"Oakland, California.
"July 18" 1913.
"I, Francis Cutting, hereby affirming my will bearing date Oct 22d 1912 except as herein modified, do hereby declare the following as and to be a codicil to my said will being my last will and testament. After paragraphs numbered 2, 3, 4 having reference to devises benefitting my daughter, also Miss Patterson also my son Frederick P. Cutting, I direct that my executors provide from the remainder of my estate an income for my wife Alice M. Cutting and pay the same to her monthly of two hundred and fifty ($250) dollars per month *107 as long as she lives, in accordance with an ante nuptial agreement with my said wife and myself of April 1913.
"(Signed) FRANCIS CUTTING."
At the outset respondents concede that a widow's claim for family allowance is favored by the law, that the law leans strongly toward the wife during probate, and that the independent means of the widow have no material bearing upon her right to a family allowance. Their contention which prevailed in the probate court was that by the terms of the contract, read in view of all of the circumstances surrounding its execution, the appellant surrendered all right to a family allowance, and that such was the distinct understanding of both parties to the agreement.
The same problem is here presented which was before the court on the appeal granting a family allowance in Estate of Whitney,
In this state the courts early recognized the distinction between the technical use of the word "claim" and its broader significance. (Fallon v. Butler,
It makes no difference whether the agreement is to be considered as an attempted marriage settlement or not. By filing her claim against the estate based upon it appellant has *109 admitted its binding force as a contract between the parties. No question of the rights of creditors is here involved, and it makes no difference that there was no recordation of the instrument, even if it be labeled a "marriage settlement." Sections 178 et seq. of the Civil Code relate merely to the rights of creditors and of others who might have interest in real property involved in any such settlement. By section 180 of the Civil Code, the rule is announced that the recording or failure to record such a document has like effect as the recording or nonrecording of a grant of real property. Such a grant is of full force as between the parties, regardless of the question of recordation. (Devlin on Deeds, sec. 465.) There is no force therefore in appellant's contention that the agreement loses anything of its potentiality because it is an unrecorded marriage settlement.
The appellant insists that since the allowance provided by the contract was payable out of the assets of the estate, the testator must have contemplated a payment of a suitable sum to her by way of family allowance pending administration, because otherwise she might be left without means of support during that period. But the codicil directs monthly payments by the executors, not the equivalent of $250 per month to be paid on distribution. The executors were required to pay and they did pay these monthly sums which were correctly interpreted as claims against the estate. The very machinery of the contract and the codicil shows that it was the intention of the testator and of his wife that she should receive her stipulated monthly allowance; should have it paid to her monthly during his life and after his death, and that it should be in lieu of family allowance as well as of all other possible demands against his property whether in his lifetime or afterward.
It will be of little interest or value to analyze the authorities cited by learned counsel for petitioner and for respondents touching other contracts somewhat similar to this one which have been considered by this and other courts. Each agreement must be interpreted with reference to its own peculiar language read in the light of the surrounding circumstances. This contract we have attempted so to interpret.
The order from which the appeal of Alice M. Cutting is taken is affirmed.
Lorigan, J., and Henshaw, J., concurred. *110