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District Court of Appeal, Second District, Division 2, California.


Civ. Nos. 14238, 14239.

Decided: December 21, 1943

H. E. Lindersmith and Frank E. Carleton, both of Los Angeles, for appellant. Derthick, Cusack & Ganahl and William J. Cusack, all of Los Angeles, for respondent.

These are appeals from orders of the Superior Court of Los Angeles County, sitting in probate, granting respondent's petition for a (1) family allowance, and (2) probate homestead.

The essential facts are:

Decedent, Earl F. Miller, who died January 8, 1943, and respondent were husband and wife. February 17, 1939, decedent and his wife entered into a property settlement agreement.

This is the sole question necessary for us to determine.

Did the property settlement agreement between the parties constitute a waiver by respondent of her rights to a (1) family allowance, and (2) probate homestead?

This question must be answered in the negative and is governed by these established rules of law:

(1) Whether a wife has waived her rights to a (1) family allowance, or (2) probate homestead by a property settlement agreement depends upon the provisions of the agreement. (Estate of McCoy, 51 Cal.App.2d 483, 488, 125 P.2d 71).

(2) In order to constitute a waiver of a wife's right to a (1) family allowance, or (2) probate homestead by a property settlement agreement, such agreement must show a clear and explicit intent to waive such right or rights and any uncertainty in the language of the agreement will be resolved in favor of the right alleged to have been waived. (Estate of Whitney, 171 Cal. 750, 756, 154 P. 855; Estate of Bidigare, 215 Cal. 28, 30, 8 P.2d 122.)

So far as material here, the property settlement agreement of February 17, 1939, contained the following provision:

“10. It is hereby specifically understood and agreed that each of the parties hereto does hereby waive, renounce and forever quitclaim each to the other any and all right, interest or claim of inheritance in the estate of the other as well as all right to administer the same, and does further forever release, renounce and quitclaim, each to the other, and all right, title, interest or estate either may, might, could or would have in the property of the other no matter wheresoever situate or howsoever acquired or held.”

From a reading of the foregoing clause it is clear that respondent did not in the property settlement agreement by “clear and explicit” language waive her right to either a (1) family allowance, or (2) probate homestead. Therefore, the probate court's orders were correct.

The following cases relied on by appellant are factually distinguishable from the present case.

In re Noah, 73 Cal. 583, 15 P. 287, 2 Am.St.Rep. 829, the court found that the wife was not a member of her husband's family at the time he died. In the instant case, respondent was a member of her husband's family at the time of his death, since there was not any divorce, and the probate court found that the separation was because of the continued cruelty of respondent's husband. (Estate of Parkinson, 193 Cal. 354, 357, 224 P. 453, et seq.)

Wickersham v. Comerford, 96 Cal. 433, 31 P. 358, was decided at a time when the law did not permit the selection of a homestead from the separate property of either spouse. It was clear in that case that the property upon which the wife attempted to fasten a homestead was the separate property of her husband. At the present time a homestead may be selected by the wife from the separate property of her husband. (Sec. 1238, Civil Code.)

In Estate of Winslow, 121 Cal. 92, 53 P. 362, the wife had deeded to her husband the real property upon which she claimed a homestead, and the court properly held that this constituted an abandonment of her rights to such land.

In Estate of Yoell, 164 Cal. 540, 129 P. 999, 1003, the property settlement agreement by explicit language clearly waived the wife's rights to a family allowance or probate homestead. So far as material here it provided, “all claim as such heir, or as surviving husband and wife respectively, and all right to contest or oppose the last will of the other is expressly waived. * * *”

In Estate of Cutting, 174 Cal. 104, 161 P. 1137 the antenuptial agreement between the husband and wife provided that should the husband predecease the wife she should receive for her support $250 per month for life, and that such sum should be “in lieu of any and all claims against” the property or estate “whether community or any other property or interest” of the husband. Clearly under the foregoing conditions the wife waived her rights to a family allowance.

In Estate of Sloan, 179 Cal. 393, 177 P. 150, 151, the agreement released the husband's property from “all claims, demands and interests against or in the estate of the other upon the death of either.” Such language was definite and certain. It was likewise broad enough to include the claims for a family allowance.

For the foregoing reasons the orders appealed from are and each is affirmed.

I concur. While it is true that the ordinary commercial contract couched in such terms as those employed by respondent and decedent would be interpreted liberally, yet in the construction of an agreement made by spouses during coverture a strict construction is preferred. It must be constantly borne in mind that a property settlement agreement is a part of the authorized processes for disestablishing a status. The maintenance of that status and the continuance of obligations arising therefrom have always been jealously guarded by the law as a means of conserving the happiness, peace and serenity of society. Out of regard for this juridical policy, as well as for public policy established by statutes, the courts have been hesitant to supplement an agreement designed to dispose of the estate and the mutual rights and obligations of a community partnership by reading into it what it does not specifically contain. Because of her paramount right growing out of coverture the widow's claim to a “family allowance is strictly favored in our law.” Such right is not surrendered by an agreement with her departed husband unless such intention is evidenced by clear and explicit language. In re Woodburn's Estate, 212 Cal. 683, 300 P. 22. The widow's right to an allowance is paramount to the right of inheritance in all other persons. Her right is not one of inheritance. Neither does it depend upon any previous interest in property owned by her deceased husband. Such an interest is readily relinquished by a property settlement. In re Woodburn's Estate, supra. The rights of heirs, legatees and devisees are subject to the power of the court to award the surviving widow such allowance as the amount and condition of the estate warrant and the needs of the widow require. In re Bain's Estate, 137 Cal.App. 547, 31 P.2d 211.

At the time of decedent's death he was the husband of respondent. Although they were living apart the finding of fact was that their separation was due not to the faults or the acts of respondent or to her choice but that it was brought about by decedent's bad faith and by his cruel and unlawful conduct toward his wife. A separation so induced does not deprive her of her right to a widow's allowance. Neither is her right conditioned upon her having lived in the family relation with her husband immediately prior to his decease. In re Parkinson's Estate, 193 Cal. 354, 224 P. 453. A widow's right to a family allowance is a marital right which is not waived by a property settlement unless upon a critical examination of the agreement such intention on her part is free from doubt. In re Bidagire's Estate, 215 Cal. 28, 8 P.2d 122. In the cited case, notwithstanding the widow had released her rights to maintenance, she was granted a family allowance.

In the instant case the trial court found as a fact that respondent did not intend to waive her right to a widow's allowance. In view of such finding, supported by the absence from the contract of a specific release of her right, this court must not interfere. Mah See v. North American Ins. Co., 190 Cal. 421, 213 P. 42, 26 A.L.R. 123; Anderson v. Los Angeles Transfer Co., 170 Cal. 66, 148 P. 212. All intendments favor the judgment, and we must accept as true all evidence tending to establish the correctness of the findings and indulge in all “legitimate and reasonable inferences * * * to uphold the verdict if possible.” Raggio v. Mallory, 10 Cal.2d 723, 76 P.2d 660, 661; Coco Cola Co. v. Feliciano, 45 Cal.App.2d 680, 114 P.2d 604. No competent proof aside from the written agreement having been submitted to the court, it is not within the province of this court to declare that the construction given by the probate court to an ambiguous or uncertain writing should be supplanted by findings of our own. Slama Tire Protector Co. v. Ritchie, 31 Cal.App. 555, 161 P. 25.

I dissent. The property settlement agreement must be considered in its entirety and in the light of the surrounding circumstances. Petitioner and decedent had lived together as husband and wife for about six and one–half years and during that time he had adopted the minor daughter of petitioner by a former husband. When the property settlement agreement was executed the parties had been separated for nearly two months. It is recited in the agreement that “unhappy marital differences have arisen between said parties, and each of said parties is mutually desirous of finally adjusting and settling their property rights and interests. * * *” By the property settlement agreement they divided all of their property. Decedent agreed to pay the household debts and accounts incurred up to January 1, 1939, and petitioner agreed to take care of her own bills after that date. It was agreed that one spouse should vacate the family dwelling and that petitioner should bear the full burden for the support of the minor child, who at that time was nineteen years of age. Decedent agreed to pay to petitioner the sum of $10,500 for her “full maintenance and support”. It was provided that in case of a divorce action both parties would waive the payment of attorney's fees, court costs, alimony and support during the pendency of such action and after its determination. It was also provided that the agreement should be binding upon the heirs, administrators and executors of the parties. Paragraph X of the agreement goes further than the provisions referring to the community property of the parties and expressly provides that each of the parties waives and renounces “any and all right, interest or claim of inheritance in the estate of the other as well as all right to administer the same” and further releases “all right, title, interest or estate either may, might, could or would have in the property of the other no matter wheresoever situated or howsoever acquired or held”.

After the separation petitioner did not again live with decedent. She did not talk to him thereafter and did not attend his funeral. She did not seek or receive any support from him other than that mentioned in the agreement.

I am not unaware of the rule that in order to bar a family allowance the intention to waive the right must be clear and explicit. Estate of Whitney, 171 Cal. 750, 154 P. 855, is often cited in support of this rule, but the Whitney case also lays down the rule, at page 760 of 171 Cal., at page 859 of 154 P. that, “to a great extent each writing must be viewed by itself, and the intent of the parties must be ascertained from a study of the particular terms employed, read in the light of the underlying purpose of the transaction and the circumstances under which it was made.” It is significant that in the Whitney case the parties had not separated but were living together in harmony. In that case the general words of waiver, taken by themselves, would have been sufficient to cut the widow off from a family allowance. This was pointed out in Estate of Cutting, 174 Cal. 104, 161 P. 1137, where the court denied a family allowance to a widow who in a prenuptial contract agreed that a set sum per month during her life would be accepted “in lieu of any and all claims against the property or estate of * * * Francis Cutting.” The court held that it was the intention of the testator and his wife that the monthly payments should be in “lieu of family allowance as well as of all other possible demands against his property, whether in his lifetime or afterwards”. The rule that the question whether a wife has waived the right to a family allowance must be answered from a study of all of the terms in the agreement and in the light of the surrounding circumstances was applied in Estate of McCoy, 51 Cal.App.2d 483, 125 P.2d 71.

My views are in harmony with the decisions in the Cutting case, supra, and in Estate of Sloan, 179 Cal. 393, 177 P. 150, 151, where the husband and the wife entered into a property settlement agreement by which releases were made from “all claims, demands and interests against or in the estate of the other upon the death of either.” The agreement set forth that the parties had adjusted and “forever determined all their respective rights to, of and in any inheritances the one from the other, respectively.” Upon the death of Mr. Sloan, notwithstanding she had signed this agreement, Mrs. Sloan filed a petition asking that a probate homestead be set apart to her. Her petition was dismissed and the Supreme Court in affirming the action of the lower court held that the petitioner had “in express terms and in language that is most apt for the purpose relinquished all claim and right to his property and estate, thus barring herself from the claims made, just as effectually as such an agreement would bar her right as widow, to administer upon the estate of her deceased husband.” In the case now before us the property settlement agreement contains waivers substantially the same as the waivers in the Sloan case, for petitioner waived all of her rights and interests in the property of decedent and waived all “claim of inheritance in the estate.”

It is stated in the Whitney case, supra, that “the widow's claim to a family allowance is strongly favored in our law”, but in my opinion this rule should be applied to cases where the relationship is genuine, as in the Whitney case, and should not be applied to cases where the parties have finally separated and where, as here, an action for divorce had been commenced.

If we apply the rule that the intention of the parties should govern the decision of the court it seems clear to me that the only reasonable conclusion to be reached is that petitioner waived her right to a family allowance and to a probate homestead. It was not necessary to specifically refer in the agreement to the matter of the family allowance. Estate of McCoy, supra; Estate of Cutting, supra; Wickersham v. Comerford, 96 Cal. 433, 31 P. 358; Estate of Yoell, 164 Cal. 540, 129 P. 999. By the express terms of the instrument petitioner waived all her interest in the estate of decedent, her claim of inheritance, her right to administer his estate and her right to receive support for herself and their minor child. The agreement was expressly made binding upon the heirs and executors. There was no expectation that the parties would ever live together again and they clearly intended to make a final settlement of all of their property rights and rights of support. Manifestly the parties did not consider that it was at all necessary to specifically mention in the agreement that either party waived the right to a family allowance. It seems to me incredible that the parties intended to make any reservation whatever concerning a family allowance or a probate homestead. To permit petitioner now to demand and receive a family allowance and a probate homestead is to disregard the clear and explicit terms of the contract which she entered into with decedent.

McCOMB, Justice.