Ehler v. Ehler

This is an appeal by the executors from an order for family allowance, and from an order setting apart exempt personal property, and from an order setting apart a homestead, all in favor of the respondent, who is the widow of decedent. Said decedent died testate leaving an estate consisting entirely of separate property, which he devised to his children by a former marriage. By his will he specifically disinherited respondent, giving as his reason for such action the fact that she had left him and commenced an action for divorce against him. The inventory showed the value of the estate to be $346,000, against which amount there were liabilities in the form of mortgages and two disputed claims amounting to $75,000 and $3,700 respectively, making in all $171,000 of outstanding claims, but less than $100,000 of admitted indebtedness.

Appellants maintain that respondent is not entitled to a family allowance, to the exempt personal property or to the homestead out of her deceased husband’s estate, for the reason that she was not a member of his family at the time of Ms death.

Appellants contend that the widow voluntarily abandoned decedent and that she thereby waived her right to claim any allowance from his estate. As a matter of fact, the record shows that she left him and instituted an action for divorce against him, which was pending at the date of his death. It was, therefore, never determined whether or not respondent left voluntarily or for good cause. In view of this, we are of the opinion that there was a total absence of any

In the Estate of Henningsen, 199 Cal. 103 [ 247 Pac. 1082 , 1083], (in which an appeal was taken from an order setting apart a homestead to the surviving husband of a deceased wife, and on appeal from an order setting apart the exempt property of said estate to the surviving spouse, and in which the appellant contended that the family relation had been dissolved prior to death and that therefore the husband was not entitled to benefit from the estate of the deceased wife), the court said: “Even if it were to be conceded, which it is not, that the appellant herein had established upon such hearing by practically undisputed evidence that the family status of the parties had been destroyed, it would not follow that the husband of the decedent must for that reason have been denied the rights he sought to assert under section 1465 of the Code of Civil Procedure. On the contrary, this court has held in Estate of Gould, 181 Cal. 11 [ 183 Pac. 146 ], and also in Estate of Parkinson, 193 Cal. 354 [ 224 Pac. 453 ], that the rights of the surviving spouse created under the provisions of sections 1464, 1465 and 1466 of the Code of Civil Procedure were not conditioned upon the existence of the family status at the date of the decedent’s death.”

The court, in its order setting aside the exempt personal property for the use of the widow, included therein several pieces of furniture from the home place, which had been bequeathed by decedent to his heirs. The appellants claim that the court’s action was inequitable and contrary to the law, inasmuch as the particular articles were unnecessary for the use of respondent and that she could very well have done without them. These pieces of furniture— admittedly exempt from execution—constituted a portion of decedent’s home, and upon application of the widow, duly made and noticed, the requirement to set them aside to her is mandatory, and the court is without jurisdiction to make an order denying it. (Mahoney v. National Surety Co., 89 Cal. App. 148 , at 152 [ 264 Pac. 304 ], citing Estate of Ballentine, 45 Cal. 696 ; County of Los Angeles v. State, 64 Cal. App. 290 , at 296 et seq. [ 222 Pac. 153 ].) This is also true of the proceeds from the insurance policy. The respondent had the prior right to have this money set aside

Appellants also claim that the court grossly abused its discretion in awarding respondent the sum of $6,500 for the month ending December 20, 1927 (which was more than eight months after letters testamentary had been granted), and also awarding the further sum of $750 per month from that date for the period of administration of the estate or until further order of the court; and in addition claim that these amounts are far in excess of the amounts reasonably necessary for respondent’s maintenance according to her circumstances and manner of living, and are not justified by the amount and condition of the estate, which they maintain is insolvent. So far as the record shows, respondent received from the estate of her deceased husband the homestead, together with its furnishings and, $4,000 insurance money. There is nothing to show that she had independent means of her own with which to sustain herself. Further, the estate is a large one—over $200,000— and while much of the property is nonihcome bearing, we do not find that the order awarding the widow $750 per month during the period of administration is excessive or an abuse of discretion by the trial court. The allowance of $6,500 “for the month ending December 20, 1927”, probably was made by the court in the light of the fact that there had been a delay of seven months in the filing of the inventory, and a corresponding delay in the matter of • family allowance. Neither do we believe that the allowance should be limited to one year after issuance of letters testamentary, unless the court should subsequently find the estate to be insolvent. In the ordinary estate offered for probate, there is rarely either sufficient cash on hand or income with which to pay off outstanding indebtedness, and an executor ordinarily is forced to sell off part of the estate in order to secure the funds necessary to pay claims and demands outstanding. In the instant case the assets of the estate were amply sufficient to pay all debts and all expenditures ‘incident to administration. That is sufficient to make the estate not insolvent, within the definition of an insolvent estate under the provisions of section 1466 of the Code of Civil Procedure. Where the assets of an estate were appraised at $58,000, and the debts allowed,

The orders are affirmed.

Conrey, P. J., and Houser, J., concurred.