Estate of Coffin

NOURSE, P. J.

The appeal herein is from an order denying a petition of the widow to modify an order for family allowance. Two motions were made by respondents pending the appeal. Upon the ground that the order for family allowance was made in accordance with a stipulation of the parties, the respondents moved for a diminution of the record for the purpose of including such stipulation. This was granted. The respondents also moved for a dismissal of the appeal upon the ground that the appellant had accepted the benefits of the order of which she asked modification and that her appeal is therefore moot. Since we have found that the order appealed from must be affirmed upon its merits, the motion to dismiss is denied.

The appeal from the order presents the simple question of the power of the probate court in relation to the granting of a family allowance. Section 680 of the Probate Code declares that the widow and minor children

are entitled to such reasonable allowance

out of the estate as shall be necessary for their maintenance during the progress of the settlement of the estate. It is the contention of the appellant that this section requires the periodical payment to the widow and minor children of a fixed sum from the date of the death of the decedent until the date of the settlement of the estate no matter how long the latter date is delayed through the fault or neglect of those receiving the allowance. She predicates her argument upon disconnected expressions from earlier cases as to the mandatory character of the provisions of the code section destined to maintain the status of the widow and the minor children in the condition which they had enjoyed prior to the death of the decedent. The error of the appellant’s argument, and of some of the authorities upon which she relies, rests in the assumption that the code section requires that this allowance be paid periodically from the date of death to the date of settlement of the estate. But the code section does not require the payments

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to be made in that manner. It has declared that the widow and minor children are entitled to a reasonable allowance during the progress of the settlement of the estate, and all the authorities agree that what is a reasonable allowance is a matter to be determined in the sound discretion of the probate court. In making this determination it is competent for the court to determine what is a reasonable time within which the estate should be settled and to fix the amount of the allowance accordingly. This is the rule adopted in