Estate of Ehler

California Court of Appeal Jul 9, 1931 No. Docket No. 7771.Published

Before: York

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Holding. A widow is entitled to a family allowance, exempt personal property, and a homestead from her deceased husband's estate regardless of whether she was living in a family relation with him at the time of his death, provided she has not waived those rights. The court further held that setting aside exempt property is mandatory and that the awarded allowance was not an abuse of discretion.

Issues

Whether a widow is entitled to a family allowance and homestead if she was not living with the decedent at the time of his death.
Whether the widow waived her statutory rights by leaving the decedent and filing for divorce.
Whether the court had discretion to deny the setting aside of exempt personal property.
Whether the family allowance awarded was excessive or constituted an abuse of discretion.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the rights of the surviving spouse created under the provisions of sections 1464, 1465 and 1466 of the Code of Civil Procedure were not conditioned upon the existence of the family status at the date of the decedent’s death.”

“these pieces of furniture— admittedly exempt from execution—constituted a portion of decedent’s home, and upon application of the widow, duly made and noticed, the requirement to set them aside to her is mandatory”

YORK, J.

This is an appeal by the executors from an order for family allowance, and from an order setting apart exempt personal property, and from an order setting apart a homestead, all in favor of the respondent, who is the widow of decedent. Said decedent died testate leaving an estate consisting entirely of separate property, which he devised to his children by a former marriage. By his will he specifically disinherited respondent, giving as his reason for such action the fact that she had left him and commenced an action for divorce against him. The inventory showed the value of the estate to be $346,000, against which amount there were liabilities in the form of mortgages and two disputed claims amounting to $75,000 and $3,700 respectively, making in all $171,000 of outstanding claims, but less than $100,000 of admitted indebtedness.

Appellants maintain that respondent is not entitled to a family allowance, to the exempt personal property or to the homestead out of her deceased husband’s estate, for the reason that she was not a member of his family at the time of Ms death.

[405]

It is admitted that respondent commenced an action for divorce against deceased, which was pending at the time of his death, and that decedent had been paying to her the sum of $20 per week alimony

pendente lite.

In the

Estate of Parkinson,

193 Cal. 354, at 358 [224 Pac. 453, 455], it was contended that the use of the word “family” in section 1466 of the Code of Civil Procedure gave rise to the implication that the allowances under that section were to be confined to cases where an actual family status existed at the date of the decedent’s death, and the court in passing upon that question said: “We can see no reason for giving any such restricted significance to the use of that phrase in that section, nor, in fact, in making any distinction between the application of section 1464 and section 1466 of said code in that regard. Both of these sections are dealing with the support of the widow and minor children, if any, of the decedent, the one before and the other after the return of the inventory. In the case of an application made under section 1464 of the Code of Civil Procedure this court held, in the

Estate of Ehler

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YORK, J.

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