In re Estate of Montgomery

60 Cal. 648 | Cal. | 1882

Myrick, J.:

Deceased died intestate June 2,1876, leaving him surviving a widow and two minor children. June 26,1876, J. W. B. Montgomery was appointed administrator of the estate. August 14,1876, the Probate Court made an order that one hundred and twenty-five dollars per month be paid to said widow for the support of herself and her two minor children. The real estate was appraised at one hundred and eighty-five thousand dollars; personal property remains in the hands of the administrator of the value of about eight thousand five hundred dollars. Unpaid claims, allowed and approved, now exist to the amount of, principal, about one hundred and twenty-six thousand dollars, interest, thirty-five thousand dollars. June 22, 1878, the Probate Court made an order increasing the family allowance to two hundred and fifty dollars per month. On the fifteenth of April, 1879, the allowanee was by order reduced to one hundred and seventy-five dollars per month, upon the application of creditors. On the seventeenth of August, 1881, certain creditors filed a petition that the family allowance be discontinued. This petition averred that the real estate had greatly depreciated in value, arid that after the payment of the expenses of administration there would not" remain sufficient to pay the debts, and that the estate is insolvent. The widow demurred to the petition, and the demurrer was overruled. Mo answer was filed, and the Court heard proofs of the allegations of the petition. From such hearing the Court found the allegations to be true, and that the estate is insolvent, and had been for more than one year prior to the date of the petition, and made an order discontinuing the family allowance. From such order this appeal is prosecuted by the widow.

It is urged, on behalf of the appellant, that the order fixing the family allowance is conclusive, under Section 1466, C. C. P., during the progress of the settlement of the estate, and that the amount cannot be reduced. We do not think this view is correct. The amount to be allowed for the support of the family is peculiarly within the province of the Court; it must be such as in its judgment, may be necessary for the maintenance of the family, according to their circumstances; but, in case of an insolvent estate, the time must not be longer than one year after the granting of letters. Here is an absolute prohibition in case of insolvency. The Court had power, upon ascertaining the estate to be insolvent .—nay, it was its duty—to discontinue the allowance. In this case the allowance had been paid for five years, and during more than one year of that time, the Court finds the estate had actually been insolvent.

Order affirmed.

McKinstry and McKee, JJ., concurred.