Baldwin v. Estate of Baldwin

WARNS, J. pro tem.

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This is an appeal from an order denying the petition by the widow, the appellant herein, for a family allowance from the estate of her deceased husband pursuant to the provisions of section 680 of the Probate Code.

The decedent died on May 25, 1960, testate, and on August 9, 1960, the appellant filed a verified petition for the probate of decedent’s will and for letters testamentary. The estimated value of the estate was alleged to be $3,148.52. The petition further alleged that decedent left surviving his wife, the appellant, one adult daughter, and a minor daughter. Decedent’s last will and testament naming appellant as sole devisee and executrix was attached to the petition. The will was admitted to probate and letters testamentary were issued to appellant, Sue Baldwin, on August 25, 1960. The will Avas uncontested.

On August 24, 1960, appellant filed a verified petition setting forth the fact that she was the surviving wife of decedent and the executrix of his estate; that the decedent died on May 25, 1960, and that the matter was pending before the court and no inventory had yet been filed; that the decedent left surviving him petitioner, his wife, and a minor daughter. The estimated value of the estate was alleged to be $3,148.52. It was alleged that the sum of $300 per month was a reasonable allowance out of the estate and was necessary for the maintenance of Sue Baldwin and Susan Gay Baldwin, ac

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cording to their circumstances, for the reason that they have been deprived of support because of the death of decedent. The prayer asked for an allowance of $300 per month family allowance.

In the order admitting decedent’s will to probate the probate court specifically found that the facts alleged in the petition for probate of said will were true. Thus it was found that appellant was the surviving wife of the decedent and that a minor daughter also survived.

In the

Estate of Ettlinger,

56 Cal.App.2d 603, 604 [132 P.2d 895], the court said: “The rights of the widow to a family allowance, and the status of the orders granting an allowance are covered by statute. Section 680 of the Probate Code provides that the widow is ‘entitled’ to such reasonable allowance as may be necessary. ‘ Such allowance must be paid in preference to all other charges, except funeral charges, expenses of the last illness and expenses of administration. ’ ” (Prob. Code, § 950. See also