Hilton v. Stewart
69 P. 671
Utah
1902
Check Treatment
BARTCH, J.

Tbe petitioner herein presented a petition to tbe court, praying that sbe be adjudged to be tbe surviving wife and widow of John R. Park, deceased; that sbe be allowed a certain sum per month out of tbe estate of the deceased for maintenance and support pending tbe administration and final settlement of tbe estate; and that sbe be adjudged to be tbe owner of, and entitled to one-third in value of, all the legal and-equitable estate in real property of which tbe decedent was seized and possessed at tbe time of bis death. Tbe court denied tbe petition, finding and bolding that tbe petitioner was never tbe lawful wife of tbe deceased, and was neither entitled to a family allowance nor a distributive share of tbe decedent’s estate. This appeal is from tbe order of tbe court denying tbe petition.

Eor our decision of all tbe material questions of law presented herein, except that relating to family allowance, we refer to our opinion in tbe case of Hilton v. Roylance (decided at tbe present term)', 25 Utah 129, 69 Pac. 660. Upon the authority of that case, this one must be reversed, with costs, except as to tbe matter of family allowance. While we are of tbe opinion that tbe petitioner was tbe lawful wife and widow of tbe deceased, still, from tbe facts in evidence, we are unable to say that tbe court erred in refusing an allowance-for her maintenance 'pending suit. Tbe statute providing for family allowance was doubtless intended to make immediate provision for tbe family when tbe bead of it is removed by ■death, and such provision is to continue during the administration of tbe decedent’s estate. In this case there was no *163family, except tbe wife, and sbe did not constitute tbe immediate family of tbe deceased; sbe and her husband having many years ago agreed to live separate and apart from each othe-r, and bad so lived up to tbe time of bis death. She- was therefore never dependent upon him for support,, and we think, under all the circumstances, tbe court properly refused an allowance. 1 Woemer, Adm’n, 184; In re Noah’s Estate, 88 Cal. 468, 26 Pac. 361; Hettrick v. Hettrick, 55 Pa. 290; Odiorne’s Appeal, 93 Am. Dec. 683.

Tbe cause must be remanded, with directions to tbe court below to proceed in accordance herewith. It is so ordered.

MINEE, C. ¿T., and-BASKIN, J.,.concur..