93 P. 283 | Cal. | 1907
This is a motion to dismiss an appeal taken by a creditor of deceased from an order making a family allowance to the surviving wife.
The sole ground of the motion is that a creditor of the deceased may not maintain such an appeal. It appears from the record that appellant claimed in the court below that the estate is insolvent, and that the order making the allowance appears to have been made on that theory, for it limits the allowance to a period of twelve months, and provides that it is made without prejudice to application for a further allowance "in case hereafter said estate should turn out to be solvent." We can conceive of no ground upon which it can be held that a creditor of an insolvent estate, who must look to the general assets for the payment of his claim, is not a party aggrieved by an order of family allowance erroneously made, the necessary effect of such an order being to diminish the amount he would otherwise receive on account of his claim. The statute expressly provides that an appeal may be taken *574
from such order (Code Civ. Proc., sec. 963, subd. 3), and that any party aggrieved may appeal (Code Civ. Proc., sec. 938). It has never been held that such a creditor may not maintain an appeal. On the other hand, this court has annulled on certiorari
an order requiring an administrator to pay family allowance theretofore ordered during the pendency of an appeal taken by other claimants to the estate from the order granting the allowance. (Pennie v. Superior Court,
The motion to dismiss the appeal is denied.
Rehearing denied.