224 P. 453 | Cal. | 1924
This is an appeal from an order of the probate court granting the petition of Mary E. Parkinson, the widow of Charles A. Parkinson, deceased, for an allowance for her support out of his estate. The appellant, Ida J. Parkinson, is a sister of the decedent and the residuary legatee under his will, and upon the hearing upon said petition she contended, and she also contends upon this appeal, *355 that said order was improper and erroneous for the reason that the petitioner, though admittedly the widow of the decedent, was not and had never been, at the time of his death, a resident of the state of California; and for the further reason that she was not at the time of the decedent's death a member of the family of decedent, and for each and both of these reasons was, not a person entitled to such allowance within the terms of the statutes providing for the same. The facts of the case are undisputed. Prior to the year 1912 the decedent, Charles A. Parkinson, and his wife, Mary E. Parkinson, resided in the state of Michigan, but had not lived together there for several years previous to that date. He had, in fact, in the year 1900 brought an action against her for divorce in the courts of that state, which suit lie lost. They did not live together after that time, but the decedent associated with other women and otherwise so conducted himself as to render it impossible for his wife to live with him. This state of things continued until about the year 1912, when he left the state of Michigan and came to reside in California. During all these years his wife was and has ever since been in poor health and dependent upon her friends and relatives for support. In the year 1915 she brought an action against her husband in the courts of Michigan for separate maintenance and obtained a decree therein requiring him to pay the sum of $100 a month toward her support. This sum he never fully paid, although there is evidence that he thereafter sent her the sum of three dollars a week. He died in California on April 7, 1921, leaving a will wherein he disposed of his estate to the exclusion of his wife, which will was duly admitted to probate and an inventory and appraisement filed showing the assets of his estate to consist of personal property of the appraised value of $5,175.07. Shortly after his death his widow came to California and has since resided in this state. Not long after her arrival she presented a claim against his said estate for the sum of $7,200, alleged to be the balance due her on account of her said judgment for separate maintenance, which claim being disallowed by the executor, she brought suit to establish the same, which action is still pending. Thereafter and on April 9, 1923, she filed her petition for an allowance as his widow out of said estate, which application the court granted in the sum *356 of $75 per month from the date of the filing of the inventory; and it is the order granting the same which forms the subject of this appeal.
The sections of the Code of Civil Procedure relating to the making of provision for the comfort and support of the surviving spouse and minor children of a decedent are sections 1464, 1465, and 1466 of that code. The first of these sections provides that when a person dies leaving a widow or minor children, the widow or children, until letters are granted and the inventory is returned, are entitled to remain in possession of the homestead, etc., and are entitled to a reasonable provision for their support, to be allowed by the court or a judge thereof. The next section provides that upon the return of the inventory, or at any subsequent time during the administration, the court may, upon petition therefor, set apart, to the use of the surviving husband or wife, or in the case of his or her death, to the minor children of the decedent, all property exempt from execution, including the homestead; and makes provision for the selection of a homestead for the use of the surviving husband and wife and minor children, in case none had been selected and set apart by the survivor in his or her lifetime. Section 1466 provides that if the property thus set apart is insufficient for the support of the widow and children, or either, the court or a judge thereof 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. The application of the respondent herein for an allowance out of said estate was made under section 1466 of the Code of Civil Procedure, there having been no real property in said estate and no provision therefor having been made or possible for the setting apart of a homestead.
The first contention of the appellant is that section 1466 of the Code of Civil Procedure must be read in connection with the sections of said Code which immediately precede it, and that so read it must be construed as permitting an allowance to such person or persons only as would have been entitled to have a homestead set apart; and that since the respondent herein was not, at the date of the death of the decedent, a resident of the state of California, and had never prior thereto been such resident of the state, she *357
could not have been entitled to have a homestead set apart to her, and hence was not, by virtue of her status as a nonresident, entitled to an allowance for her support out of said estate during the period of administration. In making this contention the appellant in the first instance relies upon certain language used by this court in the Matter of Estate ofWhitney,
[2] The appellant's second contention is that the use of the word "family" in section 1466 of the Code of Civil *359
Procedure gives rise to the implication that the allowances under that section are to be confined to cases where an actual family status, existed at the date of the decedent's death. We can see no reason for giving any such restricted significance to the use of that phrase in that section, nor, in fact, in making any distinction between the application of section 1464 and section 1466 of said code in that regard. Both of these sections are dealing with the support of the widow and minor children, if any, of the decedent, the one before and the other after the return of the inventory. In the case of an application made under section 1464 of the Code of Civil Procedure this court held, in the Matter of Estate of Gould,
Order affirmed.
Alyers, J., Lawlor, J., Lennon, J., Seawell, J., Waste, J., and Wilbur, C. J., concurred. *360