Hutchinson v. Dow

NOURSE, P. J.

The daughter of deceased Edgar Dow, as an heir at law and as beneficiary under the will moved for orders terminating family allowance, requiring an accounting, and the closing of the administration of the estate. The widow of deceased as administratrix and also as heir to the remaining one-half of the estate opposed the motions. She is also the owner of a claim in .the sum of more than $12,000 which has been unpaid and has been drawing interest at the rate of 7 per cent a year since the year 1931. The appellant's claim is that the widow refuses to pay this claim becaue of the favorable interest rate and that she refuses to account or to take proceedings for the closing of the estate in order to continue her family allowance, first fixed at $1,000 a month and reduced in July, 1947, to $500 a month continuing to date and “until further order of the Court. ’ ’ All other claims have long since been paid. All motions were denied (except that payment of interest on the claim of administratrix was suspended as of October 16, 1952) and this appeal followed.

[298]

The facts sufficient for the purpose of this opinion are found in the findings of facts which, of course, cannot be controverted by respondent on this appeal. We quote: “The Court finds that there are no matters pending in said estate, other than the payment of a claim asserted by the administratrix in her individual capacity, the settlement and payment of the remaining costs and expenses of administration and the determination and payment of attorneys’ fees and commissions of said administratrix and a final accounting by the administratrix; and that it is to the best interests of all parties interested in said estate to immediately close said administration. That said claim of said administratrix has been pending since 1931; that at no time has said administratrix paid upon the principal or interest accruing of said claim any monies at all.”

We would be justified in assuming from these facts that conclusions of law granting the motions would follow. But the court summarily concluded that all should be denied.

The family allowance should have been terminated as of the date of this motion. The court found that there were no matters pending in said estate other than the payment of this claim, that the administratrix had not paid any part of the claim or of the interest thereon, and “it is to the best interests of all parties interested ... to immediately close said administration. ’ ’ This being so, why, the appellant asks, has the estate not been closed and the family allowance terminated? Since the court found that there were no matters pending calling for further administration (except respondent’s claim and expenses of administration) the continuance of the family allowance should have been denied. On this point the authorities are in accord. In