Estate of Secord

OGDEN, J. pro tem.

This is an appeal from an order denying the petition by a 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 testate, the provisions of and the beneficiaries of his will are not, however, disclosed by the record. His estate, as disclosed by the inventory, consists of household furniture, an automobile, an interest in a promissory note and a small amount of traveler’s checks all of the total value of $4,370. Prior to his death, he and appellant owned as joint tenants a bank account in the sum of $800 and two parcels of real property producing a gross rental of $300 per month. Appellant, as the survivor, became and was, at the time of her petition, the sole owner of the property so held in joint tenancy. She testified, however, that the bank account had been expended for funeral and other expenses, that the rental from the real property had not met the cost of necessary repairs thereto, and that it had become necessary for her to borrow money upon which to live.

In addition to appellant, decedent left surviving him an adult daughter by a prior marriage. A claim was filed by his former wife against the estate in the approximate sum of $9,000, based upon arrearages claimed to be due under a court order for the support of this daughter during her minority. It was rejected by appellant in her capacity as executrix and suit thereon was thereupon instituted against the estate. Shortly thereafter appellant petitioned the pro

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bate court for an allowance from the estate for her support, suggesting the sum of $500 per month effective as of the date of decedent’s death.

At the hearing oral objection to the granting thereof was made by counsel representing the claimant. The probate judge denied the petition

in toto.

It is the position of respondent that the probate court was entitled to infer from the failure of the widow to apply for an allowance until after suit against the estate upon the rejected claim was instituted and from the excessive amount of the request, which if allowed would have consumed the entire assets of the estate in less than nine months, that no allowance from the estate was in fact necessary for her support, and that it was requested solely as a device to preclude the claimant, if successful in the pending litigation, from recourse to the assets of the estate. We agree that the inference is strong that such was the principal motive of appellant. It does not follow, however, that solely by reason of such a motive the widow is precluded from asserting the right to support from her husband’s estate given her by section 680 of the Probate Code.