Houchin v. Houchin

BABNABD, P. J.

This is an appeal from an order for continuance of family allowance. C. E. Houchin died on November 23, 1953, leaving a will providing that one-half of his estate should be placed in a trust to be used for the benefit of his widow, the respondent herein, and that the other half be placed in another trust in which these appellants were the lifetime beneficiaries. The will stated that all the property in which the testator had any interest was community property; that the widow should elect whether to take under her community rights or under the will; and that “in any event she shall be entitled to a . . . family allowance out of my estate.”

On December 1, 1953, the widow filed a petition for family allowance alleging that the value of the estate was unknown; that its income would greatly exceed $30,000 per annum; that $2,500 per month was reasonably required for her support and maintenance during the administration of the estate, considering the value of the estate and the manner in which she and her home were maintained during the lifetime of the decedent; and reserving the right to request an increase if it was later found that this amount was insufficient. An order was entered on December 2 granting the petition and ordering the payment of this sum monthly during the settlement of the estate or until the further order of the court. On December 21, the widow filed a petition to increase the allowance to $5,000 per month, alleging that the income of the estate would exceed $200,000 per year, and that she had ascertained that this increased amount was necessary. On December 22, an order was made granting this petition and ordering the monthly allowance increased to $5,000 for a period not to exceed 24 months. On March 29, 1954, the

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widow filed a second petition for an increase alleging, among other things, that the inventory had not yet been completed or filed, and that it had then been ascertained that it would require $7,500 per month to maintain her home in the manner provided by the decedent. An order was made on March 29 granting this petition and ordering the payment of $7,500 per month until the further order of the court, but not to exceed 24 months from the death of the decedent.

On November 16, 1955, the widow filed a petition for a continuance of family allowance alleging, among other things, that an inventory was filed on October 21, 1954, showing $8,906,196.40 as the appraised value of the estate; that a preliminary distribution of about $208,000 had been made to the trustees of the trusts created under the will; that $776,-373.91 had been paid on account of federal estate taxes; that $307,500 had been paid on account of attorneys’ and executors’ fees; that all claims filed had been paid except for one of $450 which had been rejected, and except for the “Miller & Lux claims” aggregating $30,000,000; that a compromise and covenant not to sue further had been agreed upon, providing for the payment of $2,138,669.14 in cash and the transfer of properties appraised at $1,345,932.82 in full settlement and compromise of said claims; that after the payments already made and the payments to be made on the Miller and Lux claims the estate would have on hand on October 31 cash and other properties of the total appraised value of $4,566,278.90; that it was not then possible to close the estate as, aside from the final settlement of the Miller and Lux claims, a final settlement had not yet been reached with respect to the federal and state inheritance tax matters, in which one of the required audits had not yet been commenced; and that a continuance of the $7,500 per month for family allowance was reasonable and necessary in view of the condition of the estate and the widow’s manner of living before and after the death of the decedent. An order was made on November 28, 1955, finding that all of the allegations of the petition are true, and that all notices required by law and all special notices had been given, and ordering the executors to continue to pay the $7,500 per month to the widow for a further period not exceeding 12 months after November 24, 1955.