121 P. 1003 | Cal. | 1912
This is an appeal by certain creditors of the estate of deceased and the administrators with the will annexed from an order of the superior court of the city and county of San Francisco directing said administrators to pay an alleged arrearage under a prior order of said court, made subsequent to the return and filing of the inventory in said estate, granting a family allowance to the widow of deceased.
There is no controversy as to the material facts, which are as follows: Deceased died testate, and his will was admitted to probate on December 8, 1906. The inventory and appraisement of the estate was returned and filed on March 22, 1907. On May 15, 1907, Lucy B. Treat, the widow of deceased, filed her petition for a family allowance of $175 per month. On the following day the court made its ex parte order granting such application to the extent of $125 per month "to be paid by administrators herein, and same to date from date of order admitting will to probate," no expressed specification being contained therein as to the time during which such allowance should continue, or as to the condition of the estate in respect to solvency. No appeal was ever taken from this order. The administrators paid to the widow the amount so allowed for a period of thirteen months, to and including the month ending January 19, 1908, and refused to make any further payments. In January, 1909, the widow presented her petition for an order requiring such administrators to pay to her one thousand dollars, then in their hands and not necessary for the payment of costs and expenses of administration, on account of such allowance alleged to be due under such order, which would pay all sums due thereunder to and including the month ending September 19, 1908. The administrators and appealing creditors opposed the granting of such application on the ground set up in their answer that the estate is insolvent, the creditors alleging in their answer that such estate was insolvent at all times since the death of decedent, and both answers substantially alleging that the refusal of the administrators to pay any allowance after the payment of the same for thirteen months was because of such insolvency. Upon the hearing *253 in the lower court it was sought by the appellants to show such insolvency on the part of the estate, but the court, upon the objection of the petitioner, refused to hear any evidence on that question. If a showing that the estate was in fact insolvent would have been a sufficient answer to the application of the widow for the payment of any additional family allowance under the order of May 16, 1907, it is obvious that the lower court erred to the prejudice of appellants in excluding such evidence.
Section 1466 of the Code of Civil Procedure provides: "If the property 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, which, in case of an insolvent estate, must not be longerthan one year after granting letters testamentary or ofadministration." The question in this case is as to the effect of the portion of this section which we have italicized. The theory of the appellants is that it constitutes a limitation which must be read into any order for family allowance, however general such order may be on its face, and that the allowance comes to an end upon the lapse of one year if the estate is, in fact, insolvent.
There can be no doubt that the statutory provision in question was intended to prevent the payment of any family allowance under section 1466 of the Code of Civil Procedure, for a longer period than one year after the granting of letters testamentary or of administration, where the estate is insolvent. This intention is clearly enough expressed, and has always been recognized in the decisions of this court. In Estate of Montgomery,
The respondent's theory practically is that section 1466 of the Code of Civil Procedure contemplates and relates to conditions as they exist at the time the order of allowance was made, that so far as the question of insolvency is concerned the court must at the time of making the order determine whether the estate is then solvent or insolvent, and make its order in view of such determination, that the making of an order without any limitation as to the time during which it shall continue to be operative implies a finding of solvency which is conclusive as to thestatus of the estate in that regard in the absence of a revocation or modification of the order, except in a subsequent proceeding to obtain such revocation or modification, and that the allowance ordered must be paid during the entire progress of the settlement of the estate in the absence of such modification or revocation, for to hold otherwise would involve a holding that the validity and regularity of an order may be assailed in a collateral proceeding to enforce such order.
While as a prerequisite to an order for family allowance under section 1466 of the Code of Civil Procedure, certain facts must be determined by the trial court, we see nothing in our statute requiring the question of solvency or insolvency to be so determined. It must be determined, for instance, that such property as has been set apart for the support of the widow and children, under section 1465 of the Code of Civil Procedure, if any, is insufficient for their support, for the statute allows the order for family allowance to be made only where such other property is insufficient, and the granting of a family allowance necessarily implies a finding of such insufficiency (Estate ofWelch,
What we have said in reply to respondent's theory stated above is said with reference solely to the question of the proper construction of the order of family allowance involved in this case, and in support of our conclusion that, so far as the time during which the allowance was to continue is concerned, it simply ordered the payment for such period as was authorized by section 1466 of the Code of Civil Procedure, and in no degree adjudicated the question of solvency or insolvency. If this be the proper construction of the order, we have here, as already substantially said, no question of any collateral attack on the order, but simply an inquiry whether under the terms of the order itself it has not ceased to be operative. The question in this regard is somewhat analogous to a case where the widow who is granted a family allowance marries again during the progress of the settlement of the estate. It is held that in such a case, the order of allowance ipso facto terminates at the time of the second marriage, the theory being that such an order clearly implies that it is to be paid the widow only while she remains a member of the family of the *258
deceased, and that by her marriage she removes herself from the operation of the order. The order is satisfied so far as she is concerned. (Estate of Hamilton,
In view of what we have said, we are satisfied that the administrators and creditors were entitled to show if they could, in response to the widow's application for the order appealed from, that the estate of deceased was insolvent. The court's ruling excluding the testimony offered in this behalf was, therefore, prejudicially erroneous.
It is claimed in the brief of respondent that the order involved in this appeal is not an appealable order, and that the appeal should be dismissed for that reason. A motion to dismiss the appeal on that ground was heretofore made by respondent and denied on its merits by this court. We see no reason to doubt the correctness of that ruling. The statute allows an appeal in probate proceedings from an order "against or in favor of . . . making an allowance for a widow or child." (Code Civ. Proc., sec. 963, subd. 3.) In view of what we have said as to the proper construction of the original order for family allowance, it is clear that the order here appealed from was in substance and effect one "making an allowance for a widow."
The order appealed from is reversed.
Shaw, J., Lorigan, J., Henshaw, J., Melvin, J., and Beatty, C.J., concurred.