Stewart v. Foreman

THOMPSON, J.

W. A. Stewart, a creditor of the Estate of Winfield A. Foreman, deceased, has appealed from an order granting Florence Wayne Foreman, widow of the deceased, a family allowance under the provisions of section 680 of the Probate Code.

The testimony adduced at the hearing of the petition for family allowance is not before this court. The transcript on appeal contains only the documents incident to that procedure.

Winfield Amos Foreman, a resident of the state of New York, died February 10, 1932. He left surviving him his widow, Florence Wayne Foreman, who is the petitioner in this proceeding. At the time of his death the spouses were living apart. They were not divorced. He was possessed of an estate of great value, including 470 shares of stock of the Citizens National Trust & Savings Bank of Los Angeles, California. The transfer tax department of New York appraised it at the sum of $243,693.47. By the terms of a written agreement between the spouses, the wife received a monthly allowance of $1250 to the timé of his death. Upon proceedings duly had in the surrogate court of New York, tire will of the deceased was admitted to probate. Upon

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ancillary proceedings therefor, the will was admitted to probate in the Superior Court of Los Angeles County under the provisions of section 360 of the Probate Code, and Florence Wayne Foreman was appointed administratrix with the will annexed. Letters of administration were issued to her April 23, 1934. March 8, 1934, she filed a verified petition in the estate of her husband in the California court, praying for a family allowance in the sum of $1250 per month for her support, pursuant to section 680 of the Probate Code. The required statutory facts were alleged in the petition, including the allegations that the petitioner is the surviving widow of the deceased and resides at 8538 Cahuenga Terrace, Hollywood; that the entire estate consists of property of the value of more than $5,000,000, including 470 shares of stock of the Citizens National Trust & Savings Bank of Los Angeles. It does not appear that this petition for a family allowance was opposed. The petition was granted March 8, 1934, allowing the widow $1250 per month until the filing of the inventory in the estate. April 27, 1934, this appellant, W. A. Stewart, alleging himself to be a creditor of the estate by mesne assignment of claims, moved the California court, under the provisions of section 473 of the Code of Civil Procedure, to vacate the order for family allowance on the ground that it was made through mistake, inadvertence, surprise or excusable neglect. The motion was heard upon affidavits, and denied. Stewart gave notice of appeal from the order granting family allowance to the widow in the sum of $1250 per month, and from the order denying his application for relief under the provisions of section 473 of the Code of Civil Procedure.