Bell v. Bell

HARRISON, P. J.

Letters testamentary upon the estate of Thomas Bell, deceased, were granted by the superior court for San Francisco November 7, 1892, and on November 22, 1892, Teresa Bell, one of the defendants herein, presented to the court her petition, setting forth that the decedent had left her as his surviving widow with six minor children, and praying that the court would make an allowance out of said estate for the support of said family. January 12, 1893, the court made an order awarding to her “as and for a family allowance out of said estate” the sum of $2,000 per month, and directing the executors to pay the same to her each month until the further order of the court. October 14, 1895, the court made an order reducing the said monthly allowance to $1,500 per month, and in May, 1898, made another order reducing it to $100 per month. The plaintiffs herein are four of the children of the decedent who have reached their

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majority, and by the present action they seek judgment for an accounting by their mother (the said Teresa Bell) of the moneys received by her under the aforesaid order and disbursed for their support, and for judgment in their favor for the several amounts found due them upon such accounting, claiming that the said moneys were received and held by her in trust for the several members of the family, and that they are entitled to the respective shares which have not been expended for their support. The court sustained a demurrer to the complaint, and from the judgment entered thereon the plaintiffs have appealed.

It is manifest that the plaintiffs cannot maintain their action unless they have some interest in the moneys paid to the defendant for the said family allowance; and for the purpose of showing such interest they rely upon section 1468 of the Code of Civil Procedure, which provides that when property is set apart to the use of the family, the one-half of such property shall belong to the widow, and the remainder in equal shares to the children, if there be more than one. By the very terms of this section, however, its provisions are applicable only when some specific or tangible property has been “set apart” for the use of the family; e. g., property that is exempt from execution, or a homestead when one has not been selected in the lifetime of the decedent (section 1465). or the entire estate when its value is less than $1,500 (section 1469). In these cases the property set apart is withdrawn from the administration of the estate and is no longer under the control or supervision of the court. The provision for a family allowance does not direct the court to “set apart” any particular property, but requires it to “make a reasonable allowance” out of the estate, which, by section 1467, is made a “charge” against the estate, which must be “paid” in preference to all others except funeral charges and expenses of administration, and for which, by section 1536, other property of the estate may be sold for the purpose of raising the money with which to pay the charge. The limitation of title declared in section 1468 for the property which is “set apart,” and the omission to prescribe such limitation for the money directed to be paid for the family allowance, clearly indicates that the legislature did not intend that the latter should be subject to such restriction.