Bridges v. Dougherty

NOURSE, P. J.

Two appeals are taken on the same record from an order denying motions to terminate a family allowance and modifying an allowance theretofore made.

E. L. Dougherty died testate on May 30, 1948. On July 22, 1948, his will was admitted to probate. On November 1, 1948, the court granted the widow a family allowance of $750 a month from the date of the death of the testator. On December 21, 1948, the widow filed a contest of the will. On February 28, 1949, the executor filed his first account showing that all debts had been paid and that the estate was then ready to be closed except for the pending contest. It then appeared that the estate had been diminished from the inventory value of $41,535 to $29,508 by payment of the family allowance and expenses of administration.

On April 25, 1949, appellant George filed a petition to modify the family allowance on the ground that it was excessive since the widow had theretofore received from deceased $33,712 in life insurance, a home valued at $25,000 which has been held in joint tenancy, and all the household furnishings.

On May 10, 1949, the petition was set for hearing, but the court refused to hear it pending the will contest. Other continuances were granted because of the pendency of a motion for a new trial of the contest. In the meantime the executor filed his petition for a modification of the family allowance showing that the widow had been paid $10,500 in family allowance and that the original estate of $41,535 had been depleted to $25,024 and that attorney’s fees and expenses of defending the contest remained to be paid.

On October 25, 1949, more than six months after the petition was filed, the court made its order reducing the allowance to $350 a month commencing October 1, 1949. The appellants argue that the order discloses a double breach of discretion, first in continuing the allowance to the widow in any amount, and second in awarding her the full $750 for the six months’ period pending the hearing of the motion which delay was due solely to the fault of the court.

On the first point the parties agree that, under section 680 of the Probate Code, the court had power to grant the

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