IN RE: the ESTATE of Frederick Arthur FALLON

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

IN RE: the ESTATE of Frederick Arthur FALLON, also known as Frederick A. Fallon, also known as F. A. Fallon, Deceased. AMERICAN TRUST COMPANY, Special Administrator of the Estate of Frederick Arthur Fallon, Deceased, Appellant, v. Margaret FALLON, Respondent.*

Civ. 17277.

Decided: March 25, 1957

Lange & Rockwell, San Francisco, for appellant. Appel, Liebermann & Leonard, San Francisco, for respondents.

This is an appeal by American Trust Company as special administrator of the above captioned estate from two orders granting a family allowance of $1,000 a month to Margaret Fallon, widow of deceased and from an order denying appellant's petition for an order to vacate or modify said family allowance.

Frederick Arthur Fallon died on September 18, 1955, probably at the age of 86. On November 30, 1955 American Trust Company filed a petition for probate of his will in which it was appointed executor and for issuance of letters testamentary. On December 15, 1955, respondent Margaret Fallon filed her verified petition for family allowance alleging in substance, that she was the widow of deceased and entitled to a reasonable allowance, that according to her information and belief the value of deceased's estate is in excess of $600,000, that $2,500 per month is a reasonable amount for her maintenance, that the estate has a monthly income adequate to pay such allowance and is not materially indebted. Hearing was set for December 22nd and the attorneys of record of American Trust Company were so informed by letter of December 15th which letter they received.

At the hearing respondent testified that she and deceased were married in 1940, that she had no means except temporary employment at Hale's at that time. After a question by the court whether there had been a divorce, her attorney explained that in 1945–1946 there had been reciprocal divorce actions, which had both been denied; the trial court had provided for maintenance for Mrs. Fallon of $250 a month but for one year only. On Appeal the decision had been affirmed. After the end of the one year the payment had stopped. Respondent testified that at all times she had a flat in a property owned by Mr. Fallon, of which she still had the key and where her personal effects were still stored. She had been a nurse before her marriage. The only opposition consisted in a statement by an attorney present in behalf of some of the legatees that $2,500 was a little high at that time. American Trust Company was not represented. (It is stated in its brief but does not appear in the record, that the failure to appear was caused by the fact that its attorney was detained at the Eel River by a flood.)

On December 22, 1955, the court filed an order finding that no inventory had been filed and that all allegations of the petition were true and granting respondent an allowance of $1,000 per month. On December 29, 1955 the court on the petition of American Trust Company appointed it special administrator, with the powers of a general administrator. On January 4, 1956 the court filed again an order granting the petition for family allowance, except for its date identical with the one filed on December 22nd. No notice or hearing preceded it. On January 24, 1956, American Trust Company filed a verified petition for an order to vacate or to modify the order for family allowance. It alleged in substance that the relationship of Mrs. Fallon to deceased did not entitle her to a family allowance, that relation being determined in Fallon v. Fallon, 83 Cal.App.2d 798, 189 P.2d 766 and Fallon v. Fallon, 86 Cal.App.2d 872, 195 P.2d 878. (The first case cited affirms the denial of the husband's, appellant's, action for divorce on the ground of desertion and the granting of maintenance for one year; the latter case relates only to the payment of attorneys fees and costs on appeal by the husband and is irrelevant here.); that for eight years prior to the death of Mr. Fallon, Mrs. Fallon lived separate and apart from him in White Rock, British Columbia, without family relationship with deceased; that in an inventory of December 6, 1955, filed in guardianship proceedings (after American Trust Company had been appointed guardian of the Estate of Mr. Fallon) the assets had been evaluated at $337,034.01, and that the income from it in 1955 was less than $10,000. At the hearing of this petition after formal notice on February 6, 1956, on further evidence was adduced but the case argued on the above basis. On February 8, 1956 an order was filed denying the petition. The appeal taken on February 17, 1956 was timely as to all three orders.

In so far as the last order denies the special administrator's petition to vacate the orders granting the family allowance, it is non-appealable because it is not mentioned in Section 1240 of the Probate Code. In re Estate of Caldwell, 67 Cal.App.2d 652, 656, 155 P.2d 380.

Appellant's contention that the orders granting the allowance should be set aside because of failure to give notice and to make findings of fact and conclusions of law is without merit. Probate Code, Sections 681 and 1200 require notice of a petition for a family allowance only if made after the inventory is filed, which was not the case. (11a Cal.Jur. 538). The granting of the family allowance without notice prior to filing of the inventory finds its origin in the former law which provided for a preliminary or temporary allowance until the inventory was filed and further allowance during the progress of the estate. (11a Cal.Jur. 506–507). [Because of the circumstance that the family allowance may be granted without notice prior to the filing of the inventory, the fact that the denial of the vacation of the order is nonappealable seems undesirable. However, it is settled law that with the single exception of appeals from orders granting motions for new trial, no appeal will lie from any order in probate not specified in Probate Code, Section 1240. In re Estate of Noonan, 113 Cal.App.2d 899, 900, 249 P.2d 306; In re Estate of O'Dea, 15 Cal.2d 637, 104 P.2d 368, in which latter case it was held on that ground that in probate no appeal lies from denial of relief from default under Code of Civil Procedure, § 473.] As stated before findings were included in the order. Such findings are sufficient, Silverstein v. Silverstein, 76 Cal.App.2d 872, 875, 174 P.2d 486. Conclusions of law need not be expressly drawn where they naturally follow from the findings and/or decision. (24 Cal.Jur. 1002 and cases there cited.)

Appellant's contention that respondent was not entitled to any family allowance, because at the time of the death of Mr. Fallon she was not receiving or entitled to support from him must be reviewed on the basis of the facts that were before the lower court at the time of the orders granting the allowance. With respect to the principle itself that the right to a family allowance is dependent upon the wife's right to support at the time of her husband's death there is no longer any doubt. In re Estate of Brooks, 28 Cal.2d 748, 755, 171 P.2d 724; In re Estate of Cooper, 97 Cal.App.2d 186, 193, 217 P.2d 499. Normally, the wife by showing that she was the wife of the deceased at the time of his death makes out a prima facie case for her right to a family allowance and she cannot be required to allege and prove that there were no circumstances by which she lost the right of support normally inherent in her position as a wife. However, in this case she brought to the notice of the court the order which on denial of divorce granted her maintenance for one year only and the fact that since then she did not receive any support. The effect of such situation must therefore be considered. No case treating the effect of an order granting under Civil Code, Section 136 maintenance on denial of divorce for a limited time only has been cited to us or found. In Monroe v. Superior Court, 28 Cal.2d 427, 170 P.2d 473 is found the closely related situation that a wife on her action is granted separate maintenance for a limited period only. It was held that the court could grant additional support in case of changed circumstances although it did not reserve jurisdiction to do so in the decree, because the decree did not end the marriage and the obligation to support which arises from it, but only regulates the extent of that support. It is said in 28 Cal.2d on page 430, 170 P.2d on page 474, that the decree granting separate maintenance for a limited time determined ‘that given the circumstances in which the parties found themselves when the decree was rendered, petitioner's wife should be given an allowance for 27 months only.’ The court cites with approval a case in which the Supreme Court of Michigan, Binkow v. Binkow, 298 Mich. 609, 299 N.W. 734 denied further allowance after the originally limited period of separate maintenance, on the ground that the wife had made no showing of changed circumstances. Also cases relating to an interlocutory decree of divorce which does not provide for support may be compared because the marriage continues until the final decree, although the relation with the situation before us is much less close. In London G & A Co. v. Industrial Acc. Comm., 181 Cal. 460, 184 P. 864, it was held that the wife in such situation was not entitled to support. It is said in 181 Cal. at page 465, et seq., 184 P. at page 867. ‘An interlocutory judgment of divorce is * * * so far as it determines the rights of the parties, a contract between them. It is temporary and provisional in its nature, it is true, but it settles the rights of the parties for the time being * * *. They are, by virtue of the interlocutory judgment, living separate by agreement, and if that judgment makes no provision for her support by him, they are living separate by an agreement which does not provide for her support, and under section 175 he is not, during that interval, personally liable for her support. The judgment has the effect of a contract for that purpose. Until than contract is in some manner changed, either in the action or in some independent proceeding, or by a reconciliation, her right to support is suspended.’ It was held in Re Estate of Brooks, supra, 28 Cal.2d 748, 171 P.2d 724, that the wife whose right to support was in that manner suspended, was not entitled to a fimily allowance.

We need not decide whether a decree alone granting after denial of divorce maintenance to the wife for a limited period only, necessarily has the effect of a prima facie showing that her right to support was limited to said period, which the wife has to overcome by proof that since the granting of the decree the husband's obligation has been extended or revived. In the case at bar the court had before it, over and above such a decree, the fact that her attorney stated to the court ‘after that one year period in 1948 Mrs. Fallon has since been in the position of being a wife without any support or maintenance.’ The combination of the decree and her admission that she had received no support for more than seven years after expiration of the limited period of maintenance, presents a prima facie implication that, at the death of her husband, she was not entitled to his support. It was then incumbent on her to show proceedings or changes in circumstances since the decree granting maintenance for one year which had extended or revived the obligation. The testimony that at all times she had ‘a flat or residence’ in one of the pieces of property owned by Mr. Fallon and that she still had the keys to that flat and had her personal effects there, does not indicate a change since the time the limited decree was made and is no substantial basis for an inference of an agreement of Mr. Fallon to support her while living separate and apart. There was then no basis for holding her entitled to support at the time of Mr. Fallon's death and to a family allowance from his estate. The orders granting such allowance must be reversed. At the retrial it will be incumbent on respondent to prove such proceedings or changes in circumstances since the time of the decree which granted her maintenance for one year only as to cause extension or revival of her husband's duty of support.

Because of the reversal of the orders granting the family allowance the appeal from the order denying appellant's petition to vacate or modify said orders has become moot and must be dismissed on that ground. The orders granting Mrs. Fallon a family allowance are reversed, the appeal from the order denying appellant's petition to vacate or modify said orders is dismissed. Appellant to recover costs on appeal.

PER CURIAM.