Coffin v. Bruse

The appeal herein is from an order denying a petition of the widow to modify an order for family allowance. Two motions were made by respondents pending the appeal. Upon the ground that the order for family allowance was made in accordance with a stipulation of the parties, the respondents moved for a diminution of the record for the purpose of including such stipulation. This was granted. The respondents also moved for a dismissal of the appeal upon the ground that the appellant had accepted the benefits of the order of which she asked modification and that her appeal is therefore moot. Since we have found that the order appealed from must be affirmed upon its merits, the motion to dismiss is denied.

The appeal from the order presents the simple question of the power of the probate court in relation to the granting of a family allowance. Section 680 of the Probate Code declares that the widow and minor children are entitled to such reasonable allowance out of the estate as shall be necessary for their maintenance during the progress of the settlement of the estate. It is the contention of the appellant that this section requires the periodical payment to the widow and minor children of a fixed sum from the date of the death of the decedent until the date of the settlement of the estate no matter how long the latter date is delayed through the fault or neglect of those receiving the allowance. She predicates her argument upon disconnected expressions from earlier cases as to the mandatory character of the provisions of the code section destined to maintain the status of the widow and the minor children in the condition which they had enjoyed prior to the death of the decedent. The error of the appellant’s argument, and of some of the authorities upon which she relies, rests in the assumption that the code section requires that this allowance be paid periodically from the date of death to the date of settlement of the estate. But the code section does not require the payments

In making the order of April 24, 1935, the probate court followed this practice. It was therein ordered that the widow be awarded the sum of $300 per month “continuing for a period not to exceed ten months, . . . or, until the final distribution of said estate, in the event that said estate is so finally distributed before the expiration of said ten months”. The petition of the widow for modification of this order gave no good reason why the settlement of the estate had been delayed beyond the ten months’ period. Upon the hearing of the petition, the court expressly inquired as to the reason for the delay and showed its dissatisfaction with the answer given. Upon this appeal the appellant has failed to show any abuse of discretion on the part of the probate court either in limiting the allowance to be paid to the widow or in limiting the period of payment.

In addition to this, the order of April 24, 1935, of which the. appellant asked a modification, was based upon a stipulation of all the parties interested, made and filed in open court. By the terms of that stipulation the appellant

The order is affirmed.

Sturtevant, J., and Spence, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 23, 1936.