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District Court of Appeal, Second District, Division 1, California.


Civ. 15010.

Decided: December 17, 1945

Newby, Holder & Newby, of Los Angeles, for appellant. Perry F. Backus, of Los Angeles, for respondent.

This is appeal from an order granting a widow's allowance and designating a probate homestead. The decedent, James Robert Brooks, died June 4, 1944, leaving an estate in excess of $24,000, which estate is not insolvent. The petitioner, Bessie M. Brooks, and decedent, as husband and wife, occupied as a home certain premises at 2243 Gatewood Street, in Los Angeles, from the time of their marriage, September 29, 1936, until their separation on June 28, 1940. On or about March 13, 1939, the wife designated and recorded a homestead on this, the separate property of the husband, which homestead was thereafter jointly abandoned at the time of divorce proceedings between the parties.

On July 22, 1940, within 24 days after the wife had left the family domicile, never to return thereto during the husband's lifetime, the husband filed action for divorce on the ground of cruelty to which the wife cross-complained also on the ground of cruelty. Upon the trial of this action an interlocutory decree of divorce was granted the husband on a supplementary amended complaint for desertion. Mrs. Brooks appealed and secured a reversal of that portion of the decree granting a divorce on the ground of desertion. Brooks v. Brooks, 53 Cal.App.2d 95, 127 P.2d 296. Other litigation between the parties included the husband's action to recover from the wife money which the husband had paid under an alleged void contract made in contemplation of marriage, which provided that the husband should pay the wife $80 per month for her services as nurse and housekeeper as had been done before their marriage. In Brooks v. Brooks, 63 Cal.App.2d 671, 147 P.2d 417, a judgment for the defendant wife in this latter action, was affirmed.

On or about July 24, 1942, the wife wrote to the husband a letter offering to return, to which the husband made no reply; thereafter the wife filed a divorce action in Alameda County and on October 11, 1943, was awarded an interlocutory decree of divorce on the ground of the husband's desertion. It is stated in appellant's brief that: ‘As a result of the negotiations between the attorneys * * * the defendant therein (the husband) agreed to waive his motion for a change of venue, would not contest the divorce action if an amended complaint were filed based exclusively upon desertion, and if the plaintiff would make no demands upon defendant in said divorce action, except the payment of the aggregate sum of $165.00 for attorney fees and costs, and also upon the condition that the plaintiff would join in the abandonment of the homestead theretofore declared by her on March 13, 1939’ (italics added); that such conditions were fulfilled and the interlocutory decree entered pursuant thereto. The husband, James Robert Brooks, died testate on June 4, 1944. The premises located at 2243 Gatewood Street, in Los Angeles, upon which a probate homestead was ordered, constitute a part of the residue of the estate devised by the husband to Emma Brooks, a sister. The homestead above mentioned was set aside to the widow for a period of three years, and a widow's allowance of $50 per month for one year, was ordered paid to the respondent Bessie M. Brooks.

In respect to the widow's allowance, appellant contends that: ‘Before a widow can claim a family allowance, she must be receiving or entitled to receive from the husband, at the time of his death, support and maintenance.’ This argument is based upon the Estate of Egeline, 53 Cal.App.2d 368, 370, 127 P.2d 948, 949 where the court said: ‘In the Ruiz case (Estate of Ruiz, 53 Cal.App.2d 363, 127 P.2d 945), wherein the Fulton case (Estate of Fulton, 15 Cal.App.2d 202, 59 P.2d 508) was followed, we held that where it had been judicially determined that the marriage should be dissolved under conditions rendering the husband no longer liable for the wife's support, the surviving wife—although technically within the letter of section 680, Probate Code,—was not entitled to a family allowance.’ An examination of the Egeline case, however, reveals that the wife had been served by publication and that the husband had been granted an interlocutory decree on the ground of the wife's cruelty, whereas in the present case, the interlocutory decree of October 11, 1943, was granted to the wife on the ground of the husband's desertion. Likewise in the Ruiz case, the husband was awarded the decree on the ground of the wife's cruelty; so also in the Fulton case, the interlocutory decree was granted on the ground of the wife's desertion. These cases are therefore no authority in support of the appellant's contention.

The recent case of Estate of Malouf, 67 Cal.App.2d 589, 155 P.2d 121, 122, cited by respondent, is directly in line with the facts of the present controversy. In that case the court held that the right of a widow to have the husband's estate not exceeding $2500, set aside to her under the provisions of Section 640 of the Probate Code, is not affected by the fact that, at the time of the husband's death, the wife was living apart from the husband under an interlocutory decree of divorce granted because of the husband's extreme cruelty. Holding that the Fulton and Ruiz cases, hereinbefore mentioned, were not in point, the court in the Malouf case said: ‘We have no such situation here. The interlocutory decree of divorce was granted to the wife because of the extreme cruelty of her husband. We must therefore assume that the separation was not caused by any voluntary act or the misconduct of the appellant but by mistreatment by her husband.’

In this connection it may be noticed that Section 680 of the Probate Code, relating to family allowances, merely provides that: ‘The widow and minor children are entitled to such reasonable allowance out of the estate as shall be necessary for their maintenance according to their circumstances, during the progress of the settlement of the estate * * *.’ In this case there is no contention that the allowance of $50 per month to the widow, was not reasonable.

Notwithstanding the interlocutory decree of October 11, 1943, granted to the wife ‘on the ground of defendant's (the husband's) wilful desertion and abandonment of plaintiff (the wife),’ the appellant nevertheless insists that: ‘The petitioner, having voluntarily abandoned her husband on July 28th, 1940, under conditions rendering him no longer liable for her support, lost her statutory rights to a family allowance and probate homestead.’ In this connection appellant relies upon an earlier divorce action between the parties, hereinbefore referred to, in which on August 23, 1941, it was adjudged that the wife was not entitled to a divorce and that the husband should be granted a divorce on the ground of desertion, which judgment was reversed in Brooks v. Brooks, 53 Cal.App.2d 95, 127 P.2d 296. Also relied upon is the testimony of Emma Brooks that the wife voluntarily left the home of the husband, who was a paralytic, on June 28, 1940, and never returned thereto.

The decree of October 11, 1943, finding the husband guilty of desertion, has never been modified or vacated. In view of this judicial determination, appellant's contention that the wife was the party actually at fault, cannot now be entertained. Whatever may have been the initial causes of the disruption of this marriage, and whatever steps may have been taken in previous litigation between these parties, these are not now proper matters for consideration. To hold otherwise would be tantamount to permitting a reopening of the divorce issues and a contradiction of the decree itself.

Appellant likewise contends that the widow is not entitled to a probate homestead for the reason that she was not residing on the property at the time of the husband's death, and had not resided there since June 28, 1940, when, as appellant insists, the wife abandoned the decedent. What has been said herein, as to the alleged fault of the wife, is equally applicable to the probate homestead. Moreover, the cases cited by appellant in support of the present proposition, namely, Estate of Carraghar, 181 Cal. 15, 183 P. 161, and Estate of Kachigan, 20 Cal.2d 787, 128 P.2d 865, are entirely inapplicable to the situation here presented. Nor does the case of Robson v. Meder, 66 Cal.App.2d 47, 151 P.2d 662, now published in 66 Cal.App.2d 47, 151 P.2d 662, support the appellant's contention. The Estate of Fulton, 15 Cal.App.2d 202, 59 P.2d 508, previously commented on, was one in which the interlocutory decree had been granted to the husband because of the wife's desertion, whereas, as said in the respondent's brief, ‘In the case at bar, the position is exactly the reverse.’ In the Estate of Parkinson, 193 Cal. 354, 358, 224 P. 453, 455, the court held that a widow was not prevented from receiving a probate allowance ‘merely because she was, through no fault on her part, but wholly through fault on his part, separated from her husband * * *.’ The court then cited with approval Estate of Gould, 181 Cal. 11, 183 P. 146, holding that ‘the right of a widow to a reasonable provision for her support * * * was not conditioned upon her having lived in the family relation with the deceased at the time of his death.’

A perusal of the statute relating to probate homesteads, namely, Section 660 et seq. of the Probate Code, discloses no legislative intent to make residence by the widow, a prerequisite to such homestead. Section 661 provides without equivocation that if no homestead had previously been selected, etc, ‘the court, in the manner hereinafter provided, must select, designate and set apart and cause to be recorded a homestead for the use of the surviving spouse * * *.’ (Italics added.) The trial court correctly found that the petitioner, Bessie M. Brooks, was the surviving widow of James Robert Brooks, and that the petitioner and decedent ‘were living apart at the time of his death by the fault of decedent.’ The widow was therefore entitled to the probate homestead set apart to her, as well as the widow's allowance, unless it was made to appear that, in some manner, a waiver of those rights had taken place.

It was further found in the court below, that the petitioner had never relinquished or agreed to waive either the right to a widow's allowance or to a probate homestead, and this finding is assailed by the appellant as not sustained by the evidence. The alleged waiver is predicated upon certain negotiations between attorneys for the respective parties which preceded the entry of the interlocutory decree of October 11, 1943. These negotiations, hereinbefore referred to, were, as found by the trial court, to the effect that the husband would waive the right to change the place of trial from Alameda County to Los Angeles County; that the husband would not defend a charge of desertion; that the wife would ‘make no demand upon decedent in said divorce action, except that he pay her attorney's fees and costs in the aggregate sum of $165.00, and further that petitioner should execute an abandonment of the homestead’ (italics added), theretofore selected by her, which stipulations were duly complied with. The interlocutory decree as entered by the Alameda court, contains no statement concerning any waiver by the wife.

The evidence claimed by appellant to prove a waiver of the widow's probate rights, consists of certain correspondence between attorneys which however does not mention such rights; a written stipulation never signed either by the parties or their attorneys; and the testimony of Nathan Newby, appellant's attorney. The record does not support appellant's contention in this respect, but on the contrary discloses that the only financial stipulation actually entered into was that previously referred to concerning payment of attorney fees, etc., and the agreement that ‘in said divorce action’ the wife would make no demand upon the husband. Indeed, the cross-examination of Attorney Nathan Newby seems to indicate quite clearly that the wife did not waive any rights in reference to the husband's estate:

‘Q. By Mr. Backus: Do you have any writing at all from Mrs. Brooks wherein she waived any rights against her husband? A. We think we have the waiver through her attorney.

‘Q. No writing at all where she waived any rights to an allowance from his estate? A. I have not.

‘Q. That was not mentioned in your agreement with her attorney was it? A. No sir.’

In the words of respondent's brief, ‘It would have been extremely simple for the respective attorneys for the parties, to have reduced the agreement waiving her widow's rights, to writing, and had the contract signed by both the parties,’ had such an agreement been contemplated. This was not done, and the record discloses no evidence that any agreement to that effect was entered into either in writing or otherwise.

In the Estate of Bidigare, 215 Cal. 28, 30, 8 P.2d 122, 123, the court said: ‘The sole question presented on the appeal is whether the petitioner waived her right to ask for a family allowance by reason of the above-quoted provision of the property settlement agreement. It is not disputed that the wife may, by her agreement, waive such right. It is well established, however, that in order to bar a family allowance the intention to waive the right must be clear and explicit, and that any uncertainty in the language of the agreement will be resolved in favor of the right. Estate of Whitney, 171 Cal. 750, 154 P. 855; Estate of Gould, 181 Cal. 11, 183 P. 146.’ This rule was followed in Estate of Andres, 126 Cal.App. 146, 14 P.2d 566, in which by written contract the wife had released to the husband, his heirs and assigns forever, all the right, title and interest which the wife ‘now has or may hereafter acquire, by operation of law or otherwise, in and to all other property, real, personal and mixed’ which the husband ‘now owns or has acquired or which he may hereafter acquire or own, or which may now or hereafter stand in his name, whether the same be community property or otherwise.’ Citing the Bidigare case, the court said: ‘Our conclusion is that, under the contract relied upon by appellant herein, it does not appear that there was any express waiver of the wife's right to support or of her right to a family allowance. There is an absence of any clear and explicit intention of the wife to waive her rights in this respect.’ An application to have the cause heard in the Supreme Court, was denied. Appellant's brief states that ‘we do not deny’ that such is the rule, but seeks to distinguish the above cases from the present controversy, maintaining that ‘Mr. Brooks was not liable for the support of his wife at the time of his death,’ and that therefore the order made in the present case was erroneous. The argument is not persuasive and the point taken must be resolved against the appellant.

No reversible error appears to have been committed by the trial court; the orders appealed from are reasonable and in compliance with the law as hereinbefore set forth, and are therefore affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.

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