Estate of Andres

CONREY, P. J.

Respondent Margaret Andres is the widow of William P. Andres, who died on the twenty-second day of February, 1931, leaving property in the county of Los Angeles now subject to administration under the will

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of decedent. Respondent petitioned for an allowance for her support and maintenance, which petition was granted. Contestant, who is executor of the will, and also is an heir at law of decedent, appeals from said order.

Respondent and the decedent William F. Andres had lived separate and apart from each other at all times since the year 1905, but never were divorced. Shortly before their separation they entered into an agrément in writing, dated November 17, 1905. In this agreement nothing was said to indicate that the parties intended to live apart from each other. The agreement referred entirely to property and recited that they desired to separate their property interests, “in order that each party may have exclusive control and disposition of all property standing in his oilier respective name”. Therefore in consideration of the premises and of other good and valuable consideration, and of the sum of $2,350 received by Mrs. Andres “in full satisfaction for this agreement and in full settlement of her community rights now or hereafter acquired by her”, she released to her husband, his heirs and assigns forever, “all the right, title and interest, which said party of the first part now has or may hereafter acquire, by operation of law or otherwise, in and to all other property, real, personal and mixed, which said party of the second part now owns or has acquired or which he may hereafter acquire or own, or which may now or hereafter stand in his name, whether the same be community property or otherwise”. In similar terms the husband, as party of the second part, in consideration of the agreements therein contained on the part of the party of the first part and of the sum of $1, released all present or future rights in property of the party of the first part, Mrs. Andres.

It is contended by appellant that the said agreement of November 17, 1905, is a complete and final adjustment of all property rights between the spouses, and constitutes a waiver of the respondent’s rights to a widow’s allowance.

In a very recent case the Supreme Court of California had before it an appeal from an order granting a family allowance to the widow of a decedent, where the objection to the allowance was based upon a claim of waiver by virtue of a contract between husband and wife. The court said: “The sole question presented on the appeal is whether the