Estate of Hirsh

DRAPEAU, J.

The petition for instructions of Bessie Hirsh and Jeanette Sarno, as coexecutrices of the last will of Max Hirsh, recites that Bessie Hirsh is the surviving spouse of decedent; that the estate consists of community property of decedent and Bessie Hirsh and also separate property of decedent. Under the terms of the will all of decedent’s property was devised and bequeathed to his three children: Jeanette Sarno, A1 Hardy and Hy Hirsh; and Bessie Hirsh is not entitled to receive, and does not claim any interest belonging to decedent, except her one-half of the community property.

It is further recited that Bessie Hirsh received $4,500 in family allowance during course of administration and that the estate is in a position to be closed. That a dispute exists between the coexeeutrices as to which property of the estate shall be chargeable for payment of the family allowance.

It was contended by Bessie Hirsh, the surviving wife, that decedent’s half of the community property and his separate property should

alone

be chargeable with family allowance.

Jeanette Sarno maintained that

all

of the community property and decedent’s separate property were chargeable pro rata with family allowance.

The trial court found in accord with the latter contention and ordered that the separate property of decedent and all of the community property in the estate, including that of Bessie Hirsh, was chargeable pro rata with family allowance on a proportionate basis. Bessie Hirsh appeals.

Appellant urges that “the family allowance is chargeable to the one-half interest of deceased’s community property first and then to his separate property to the exclusion of the surviving wife’s one-half interest in the community property.”

In this connection it is argued that “in 1927, Civil Code, Section 161a, gave the wife a

‘present, existing and equal

interest’ in the community. It certainly must be assumed that the Legislature, when it enacted Probate Code, sections 202 and 300, in 1931, had in mind the nature of the wife’s interest in the community, and consequently provided that

only the husband’s property