Ettlinger v. Ettlinger

[604]

NOURSE, P. J.

Three appeals from three separate orders made in probate have, by stipulation and order, been consolidated for hearing and determination upon the same transcript and briefs. One appeal is from 'an order made October 9, 1941, granting the widow a family allowance of $500 a month until the filing of the inventory and appraisement ; one is from an order made November 3, 1941, granting her a family allowance of $250 a month after the filing of the inventory and appraisement; the third is from an order dated November 25, 1941, setting apart to the widow the family home as a probate homestead.

The appellant is the former wife of the decedent. They were divorced in 1929 at which time a written property settlement agreement was executed and made a part of the decree of divorce. The respondents, other than the widow and the executor, are three adult daughters of the deceased by a marriage prior to that with appellant, and the American Trust Company, which holds a deed of trust upon the home property which is the subject of the controversy over the probate homestead.

The appellant has presented a formidable appearing and involved statement of the issues involved which can be fairly and concisely restated in this form—(1) Do the orders granting a family allowance take precedence over the contractual obligations of the deceased arising from the property settlement agreement ? (2) Did the rights of the appellant under this agreement foreclose the power of the court to set aside a homestead to the widow? (3) Did the widow forfeit her right of inheritance by applying for and accepting a family allowance and a probate homestead in view of the provisions of the will excluding a legatee who attacked the will?

(1) The rights of the widow to a family allowance, and the status of the orders granting an allowance are covered by statute. Section 680 of the Probate Code provides that the widow is "entitled” to such reasonable allowance as may be necessary. "Such allowance must be paid in preference to all other charges, except funeral charges, expenses of the last illness and expenses of administration.” Section 950 of the same code deals with the order of payment of debts of decedent. The family allowance is listed fourth in order, "Mortgages and other liens” are listed seventh, "Judgments” against decedent are listed eighth, and "all other demands against the estate” are listed ninth in order.