Malouf v. Willette

MARKS, J.

This is an appeal from a decree denying appellant’s petition to have the estate of Najeeb M. Malouf set aside to her. Appellant is his widow and Viola Malouf is their minor daughter who was made a beneficiary under the will of deceased.

It was found by the trial court that the total value of the estate of deceased did not exceed $2,500, and that appellant’s estate did not exceed $5,000 in value. Both were of the appraised value of less than those amounts. The truth of these facts is not questioned.

On February 10, 1943, appellant obtained an interlocutory decree of divorce from Najeeb M. Malouf on the ground of

[590]

extreme cruelty. She was given the family furniture and two-thirds of the community real estate. An automobile and the remaining one-third interest in the real estate was given to Najeeb who was also given the custody of Viola. Najeeb was not required to pay appellant anything for her support, the interlocutory decree being silent on that subject.

Najeeb died on April 29, 1943, more than sixty days after the entry of the interlocutory decree of divorce, from which no appeal had been taken.

The trial court found that appellant and Najeeb were living separate and apart at the time of his death, and that since the rendition of the interlocutory decree he had not contributed to her support. The conclusion was drawn that at the time of his death “the deceased was under no legal obligation to support his wife, and that said petition ought to be denied.” There is nothing indicating that appellant had waived by contract any of her rights as a widow given by our statutes.

The decree in question is based on the theory that appellant was not a member of the family of the deceased, although his widow, at the time of his death and, therefore, was not entitled to any of. the benefits conferred on a widow by sections 640, et seq., of the Probate Code.

Counsel seek to support this holding by the citation of such cases as

Estate of Miller,

158 Cal. 420 [111 P. 255];