183 P. 146 | Cal. | 1919
This is an appeal by E.B. Gould, a special administrator of the estate of Frank H. Gould, deceased, from an order allowing respondent, Nettie Gould, the widow of the deceased, the sum of $75 a month as a family allowance.
On January 19, 1918, the superior court of the city and county of San Francisco granted to Nettie Gould an interlocutory decree of divorce from Frank H. Gould, upon a cross-complaint filed by her in an action instituted by the said Frank H. Gould. This decree required the plaintiff, Frank H. Gould, to transfer to the respondent herein certain property, real and personal, it being at the same time ordered that "All other property of said community, real, personal or mixed, and of every description, is hereby assigned and allotted to the plaintiff, Frank H. Gould, free and clear of all claim of the defendant [Nettie Gould]."
Frank H. Gould died on January 26, 1918. On March 1, 1918, Nettie Gould made her application to the superior court of the city and county of San Francisco for a family allowance. The application was resisted on the ground that Nettie Gould had not been for many years in fact a member of the family of Frank H. Gould, and, moreover, that Frank H. Gould died possessed of no property save that which had formerly been the property of the community and which had been awarded to him free and clear of all claim of Nettie Gould including, so it is contended, her claim for a family allowance. On March 12, 1918, the court made the order appealed from allowing Nettie Gould a family allowance beginning with February 1, 1918, and continuing until further orders of the court. *13
[1] When a person dies leaving a widow under section 1464 of the Code of Civil Procedure, such widow is entitled to a reasonable provision for her support to be allowed by the superior court or a judge thereof. This provision is not conditioned upon her having lived in a family relation with her husband at the time of his death. It follows, therefore, that the right of Nettie Gould to a family allowance must be determined independently of the circumstance that she had not lived with Frank H. Gould for some years prior to his decease. (Farris v. Battle,
At the time of the death of the decedent, Nettie Gould was his wife. She is now entitled to such rights as the law confers upon her, under the circumstances, as his widow, including the right to a family allowance unless the property of the community awarded to the decedent was allotted to him free and clear of all claim by her, including the claim to a family allowance. (Estate of Dargie,
In the Estate of Whitney,
In the Estate of Whitney, supra, the wife "waived all claims to her share of the community property and any and all other claims that she might have upon any of the estate *14
disposed of by the said will." The will assumed to dispose of the entire estate of the husband. After careful consideration of the authorities in this state and other jurisdictions, the court decided that the wife had not waived her right to a family allowance. In view of the similarity of the language involved in that and in the instant case, this decision is entitled to great weight. An examination of the cases wherein it has been held that the wife had waived her statutory rights as widow reveals the fact that in each case the words used clearly imported an intention to surrender the very right afterward claimed. In the Matter of Noah,
The view which we have taken of the case makes it unnecessary for us to consider the question whether or not Frank H. Gould died possessed of any property save that which had formerly been the property of the community.
The order appealed from is affirmed.
Wilbur, J., and Melvin, J., concurred.
Hearing in Bank denied.
All the Justices concurred.