279 P. 805 | Cal. | 1929
Lead Opinion
Petitioner herein applied to the probate court of the county of Los Angeles for a family allowance out of the estate of his deceased wife. The petition was denied, and petitioner thereafter filed in this court his *667 petition for a writ of mandate directed against said probate court and the judge thereof "commanding them to set said Petition for Family Allowance for further hearing, and upon such further hearing to make an Order granting Petitioner a family allowance." No question is raised but that mandamus is the appropriate remedy to test the question herein presented. The petition herein sets forth that the petitioner is the surviving husband of Eugenie Thompson Maginnis Hills, deceased; that her estate was in course of administration in said probate court; that petitioner had filed in said probate court a petition for a family allowance out of the estate of said deceased and that said court denied said petition. A general demurrer was filed to the petition herein. The petitioner has annexed to and made a part of his petition herein copies of his said petition for a family allowance presented to said probate court and of the order of said court denying said petition. The following facts appear from said petition and order: That said deceased at the time of her death left surviving her her said husband, the petitioner herein; that petitioner is without any estate of his own; that throughout the married life of deceased and petitioner, said deceased paid out of her own estate all living expenses of herself and said petitioner; that the property of said estate exempt from execution is not sufficient for the support and maintenance of petitioner and that said deceased left no children or issue surviving her.
[1] The power to grant a family allowance is purely and exclusively the creature of statute (In re Noah,
[2] It would appear from a simple reading of this section of the code that the only persons whom the legislature intended should be entitled to an extra or family allowance under this statute or code section were the "widow and children or either." This conclusion is further strengthened when this section is read in connection with the article of the code of which section
It is contended by appellant that the word "family" includes the husband as well as the wife and children and that when section
Petitioner relies upon certain language used by this court in the Estate of McSwain, supra, to the effect that the family referred to in section
Section 1466 of the Code of Civil Procedure substantially in its present form was enacted in the year 1872, and has ever since said date been in full force and effect. It is curious that during the long period of time intervening between the date of its enactment and the present the question of a surviving husband's right thereunder to a family allowance has never been before any of the appellate courts of this state. This circumstance can only be explained by the fact that its terms are so clear and plain that no person before the institution of the present proceeding has ever had the temerity to claim at least in these courts that it accorded to the husband the right to a family allowance from the estate of his deceased wife.
There is another circumstance which we think well to mention at this time, and which we think clearly shows that the legislature, at which the original section
As we view the question before us, it was never the intention of the legislature, nor has it by any reasonable construction to be placed upon section
His petition herein, therefore, is hereby denied.
Waste, C.J., Langdon, J., Seawell, J., and Shenk, J., concurred.
Dissenting Opinion
I dissent. The sole question presented by this original proceeding in mandate and general demurrer to the petition is: Do the provisions of section
Petitioner, a surviving husband without estate of his own and who throughout his married life was supported and maintained out of his wife's property, seeks a family allowance from her estate now in the course of probate. He alleges also that the estate possesses no real property out of which a homestead might be carved and that the exempt property is insufficient for his support.
The power of the court to grant a family allowance from the estate of a deceased person is purely statutory (McSwain'sEstate,
"1465. All Property Exempt From Execution to Be Set Apart for Use of Family. Upon the return of the inventory . . . the court may . . . set apart for the use of the surviving husband or wife . . . all the property exempt from execution, including the homestead selected. . . . If *674 none has been selected . . . the court must select . . . a homestead for the use of the surviving husband or wife, and the minor children. . . ."
"1466. Court May Make Extra Allowance. If the property set apart is insufficient for the support of the widow and children, or either, the court . . . must make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the progress of the settlement of the estate. . . ."
In brief the contention of respondents is that under the latter section a condition precedent to allowance by the court of maintenance for the family is that the property set apart be insufficient for the support of the widow and children; hence where there is neither widow nor children, the granting of a family allowance is unauthorized. This contention of respondents, however, is in the face of a contrary holding of this court (Inre Garrity,
In that case the right to a family allowance was before the court and it was contended that inasmuch as real estate existed out of which might be set apart a homestead, until this was done the granting of such allowance was unauthorized and would further be unauthorized unless it was found that after setting apart a homestead, it, together with the exempt property, would be insufficient for the support of the family. The court, ruling that the right to a family allowance existed independent of these conditions, said: "The right of a family to an allowance for its support is not, however, contingent upon a previous order setting apart a homestead for its use. Whether a homestead be set apart or not, section
Respondents' position may again be summed up in the contention that the word "family" as used in section
It is true that this question has not been squarely presented in any previous decision of this court, but the case of In reGarrity, supra, goes a long way toward foreshadowing the conclusion herein reached. It is also true that in Phelan v.Smith,
In McSwain's Estate, supra, this court considered the question of a separate allowance to be made to a minor child of deceased after an allowance had been made to the surviving wife for her support, and used these words: "Sections 1465 and 1466 relate to the same subject. The latter obviously refers to the conditions described in the former. They should be construed together, and so construed, it is obvious that the family referred to in the latter section consists of the same persons as those expressly mentioned in the former section, that is, the surviving husband and wife, if any, and the minor children, if any, of the decedent."
A similar construction of the word is found in In re Lamb,
It is true, as respondent contends, that there is certain language in Estate of Steehler,
I am, therefore, of the opinion that under said section the surviving husband, as a constituent element of the family, is entitled to a family allowance out of the estate of his deceased wife and it is the duty of the court, sitting in probate, to make such suitable allowance to him as under the circumstances may be deemed just and proper.
I think the peremptory writ should issue.
Richards, J., concurred.