Estate of Silver

California Court of Appeal Jun 3, 1949 No. Civ. 16815Published

Before: McCOMB

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Holding. The court held that a beneficiary of a testamentary trust is an aggrieved party entitled to appeal an order for a family allowance, and that the trial court committed reversible error by excluding relevant evidence regarding the widow's independent means and failing to make a finding on the necessity of the allowance.

Issues

Is a beneficiary under a testamentary trust a proper party to appeal an order granting a family allowance?
Did the trial court commit prejudicial error by sustaining an objection to the appellant's offer of proof regarding the widow's independent income?
Did the trial court err by failing to make a finding on whether any sum was necessary for the widow's support and maintenance?

Disposition. reversed

Quotations verified verbatim against the opinion

“A beneficiary under a trust created by a will is an aggrieved party and entitled to appeal from an order which adversely affects his interest.”

“Clearly if petitioner had $76,000 invested from which she was deriving a substantial income which was available for her immediate use, such fact was material and relevant for the trial court to consider”

“The unsworn statement of petitioner’s attorney that she could not spend or use the funds mentioned in the offer of proof was not evidence and could not be considered by the trial court in making its findings.”

McCOMB, J.

Marc Silver, a beneficiary under a testamentary trust created by the will of Isador Silver, deceased,

[174]

appeals from an order of the superior court awarding Helen Silver, decedent’s widow, a family allowance.

Facts:

By the last will and testament of Isidor Silver he created a testamentary trust of which Marc Silver (appellant) was a beneficiary. Helen Silver, decedent’s widow, filed a petition for a family allowance alleging that $1,500 per month was a reasonable amount to be allowed her and was necessary for her support and maintenance during the administration of the estate. The executor of the estate filed an answer denying the foregoing allegations. Appellant filed his objections to the granting of the petition in which he (1) denied that $1,500 a month or any other sum was necessary for the support and maintenance of decedent’s widow, and (2) alleged that she had been paid since decedent’s death the sum of $76,000, which she had invested and from which she derived an income.

Offer of Proof:

At the time of the hearing appellant through his attorney made the following offer of proof to which the objection of petitioner was sustained:

“Mr. Bodkin: Your Honor, we offer at this time to prove that this lady received $76,000 in cash February 28, 1946. She received $50,000 at that time. She has received $26,000 in payments thereafter. There is $19,000 being held, offered to her, which she has refused. She can have it any time she will accept it. We offer to prove further she has had a substantial income from the monies which were invested, and we are offering that to show the lack of necessity.

“Mr. Murphy: The offer is objected to on the ground that the funds mentioned have been impounded and set aside pursuant to stipulation made in open court, and that she cannot spend or convert those funds at all. They may have to go back into this probate estate. We don’t know.

“Mr. Bodkin: If your Honor please, I am making that offer, and I don’t agree that there was such a stipulation; but whether there was such a stipulation or not, it would only be during the pendency of that action.

Estate of Silver

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