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


Civ. 19824.

Decided: November 12, 1953

Leon U. Everhart, Pasadena, Edward Payson Hart, Montgomery G. Rice, Los Angeles, for appellants. Harry A. Pines and Adele Walsh, Los Angeles, for respondent Riley. Roy B. Woolsey, Los Angeles, for respondent Bonnen.

Alfred G. Blair passed away in July, 1950. He left surviving his widow, Susan Ann Blair, and two adult children by a prior marriage, Naomi Blair Ruoff and Alfred Granville Blair. Mrs. Ruoff is executrix of decedent's estate. In August, 1950, the widow was declared an incomepetent and Mrs. Ruoff was appointed guardian of her person and estate, which estate was sufficient to meet her needs. As such guardian Mrs. Ruoff received authorization in the guardianship proceeding to spend $500 monthly from Mrs. Blair's separate estate for her care and maintenance. Mrs. Blair died in May, 1951. Phoebe L. Bonnen was appointed administratrix of her estate. She later resigned and was succeeded by Robecca Riley, a sister of Susan Ann Blair. Alfred G. Blair left an estate sufficient to provide a family allowance for his widow, but no application therefor was made during her lifetime. Phoebe L. Bonnen, however, as administratrix of Mrs. Blair's estate, filed such a petition which was adopted by her successor. The court granted a family allowance of $500 per month for the period Mrs. Blair lived after Mr. Blair's death. Mrs. Ruoff and Alfred Granville Blair challenge the jurisdiction of the court to make such an order after the widow's death. Their position is well taken.

The order is based on section 6801 of the Probate Code. The purpose of this section, as its language plainly indicates, is to protect and provide for the family during a period of readjustment. In re Estate of Jacobs', 61 Cal.App.2d 152, 156, 142 P.2d 454. The amount of the allowance is to be fixed by the court in view of the family needs and circumstances, taking into consideration such matters as the size, habits and mode of living during the life time of the decedent and the educational and health requirements of the several members of the family. It must be ‘such reasonable allowance * * * as shall be necessary’ for the ‘maintenance’ of the family ‘according to their circumstances.’ This implies that before making the order the court must ascertain the circumstances of the family, and demonstrates that there must in fact be a family whose circumstances may be considered by the court in determining what would be a ‘reasonable allowance’ for them out of the decedent's estate. The requirement that the allowance must be for the maintenance of the family is emphasized in Bell v. Bell, 2 Cal.App. 338, 340, 83 P. 814, and presupposes the existence of a family for whom provision must be made. In order, therefore, to warrant a court in making an allowance under section 680, Probate Code, there must be a family as therein defined to maintain. Here the widow, upon Mr. Blair's death, constituted the family, but she too had passed on when the court undertook to make an allowance for her ‘maintenance.’ In the absence of any person to be maintained who falls within the purview of section 680 of the Probate Code that section has no application. Consequently, the court had no jurisdiction to make the award which was in reality for the benefit of Mrs. Blair's estate.

In re Heywood's Estate, 149 Cal. 129, 84 P. 834, supports our conclusion. There a daughter, Agnes Maud, was a minor at the time of her father's death. After attaining her majority she filed an application for, among other things, a family allowance. Her petition was denied because she ‘had attained and passed her majority before application was made.’ She no longer came within the purview of the statute. Hence there was no authority to grant a family allowance. See, to the same effect, State ex rel. Case v. Superior Court, 23 Wash.2d 250, 160 P.2d 606, 607, 608, where the widow died before her application was passed upon.

Petitioner urges that the section providing for family allowance must be liberally construed and, as evidence thereof, points to the fact that the allowance may be retroactive to the death of the decedent. The authority for this, however, is found in the express language of the section2 which gives the court such discretion.

Petitioner relies on In re Lux's Estate, 114 Cal. 73, 81, 45 P. 1023, 1026. That case is not applicable. There an allowance had been made for the widow during her lifetime. Payment, however, had not been made pending an appeal from the order. The widow died before the appeal was determined. It was contended in the Supreme Court that ‘the right died with her as to all the allowance not actually paid her before her death.’ The court, however, held that ‘the order, like any money judgment, was the property of the respondent [widow].’ When the application was made the widow met the requirements of the code for a family allowance, hence the court had jurisdiction to make the award. Her subsequent death could not deprive her estate of the payments that had accrued.

Petitioner also relies on Monahan v. Monahan's Estate, 232 Mo.App. 91, 89 S.W.2d 153, 158. The inapplicability of that case, however, is clear for under the Missouri statute ‘The right to such maintenance becomes vested in the surviving spouse immediately upon the death of the mate.’ It is not claimed that the right to a family allowance is vested in this state.

Petitioner, however, argues that although the matter of a family allowance is a privilege and can be waived, yet Mrs. Ruoff, as the guardian of Mrs. Blair, had no authority to waive it and that Mrs. Ruoff wilfully failed to exercise the privilege for her ward because the granting of an allowance to the widow would correspondingly reduce her father's estate and consequently affect the amount she would receive from it. If Mrs. Ruoff was guilty of any breach of duty in failing to obtain a family allowance for Mrs. Blair out of Mr. Blair's estate there is no doubt an appropriate remedy for any aggrieved parties. That remedy, however, is not an award for a family allowance based on a posthumous application since the court had no jurisdiction to make such an award.

The order is reversed.

The petitions of respondents for rehearing are denied.


FN1. Section 680 reads in part: ‘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, * * *.’.  FN1. Section 680 reads in part: ‘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, * * *.’

2.  Section 680, Probate Code, reads in part: ‘Such allowance * * * may, in the discretion of the court or judge granting it, take effect from the death of the decedent.’

FOX, Justice.

MOORE, P. J., and McCOMB, J., concur.

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