Estate of Blair

42 Cal.2d 728 (1954) Estate of ALFRED G. BLAIR, Deceased. PHOEBE L. BONNEN et al., Respondents,

v.

NAOMI BLAIR RUOFF et al., Appellants.

L. A. No. 22852. Supreme Court of California. In Bank.

Apr. 27, 1954. Leon U. Everhart, Edward Payson Hart and Montgomery G. Rice for Appellants.

Harry A. Pines, Adele Walsh and Roy B. Woolsey for Respondents.

TRAYNOR, J.

The residuary legatees under the will of Alfred G. Blair, deceased, appeal from an order granting a family allowance out of his estate to the estate of his deceased widow, Susan Ann Blair.

Alfred Blair died testate on July 8, 1950. He left surviving his widow and two adult children by a former marriage, Naomi Blair Ruoff and Alfred Granville Blair. Mrs. Ruoff is executrix of the estate. She is also a residuary legatee under the will. In August, 1950, the widow was declared an incompetent, and Mrs. Ruoff was appointed guardian of her person and estate. Her estate was sufficient to meet her needs. The court authorized Mrs. Ruoff to expend from Mrs. Blair's estate the sum of $500 per month for the widow's maintenance [730] and care. No attempt was made before the widow's death in May, 1951, to secure a family allowance from her husband's estate, although the estate was adequate. After Mrs. Blair's death the administratrix of her estate, Phoebe L. Bonnen, filed a petition for a family allowance. She later resigned, and Rebecca Riley, her successor and the present administratrix, adopted her petition. The court ordered Mrs. Ruoff, as executrix, to pay to the administratrix of Mrs. Blair's estate $5,216.58, i.e., $500 for each month between the death of Alfred Blair and the death of the widow.

It is not disputed that the widow could have qualified for a family allowance during her lifetime. The issue is whether the right exists in favor of her estate.

[1] The right to a family allowance, which is entirely statutory (Estate of King, 19 Cal.2d 354, 362 [121 P.2d 716]; Hills v. Superior Court, 207 Cal. 666, 667 [279 P. 805, 65 A.L.R. 266]; Estate of McSwain, 176 Cal. 280, 283 [168 P. 117]), is given by section 680 of the Probate Code: "The widow, widower, minor children, and adult children who have been declared incompetent by order of court are entitled to such reasonable allowance out of the estate as shall be necessary for their maintenance according to their circumstances, during the progress of the settlement of the estate, which, in case of an insolvent estate, must not continue longer than one year after granting letters. Such allowance must be paid in preference to all other charges, except funeral charges, expenses of the last illness and expenses of administration, and may, in the discretion of the court or judge granting it, take effect from the death of the decedent."