Estate of Nolan

COOPER, C.

Appeal from order settling account of Mary Nolan as administratrix of the estate of James Nolan, deceased. The item of six hundred and twenty-five dollars, being the amount of family allowance for twenty-five months at twenty-five dollars per month, paid by the administratrix to herself, is the subject of contest.

Mary Nolan filed a petition in the superior court praying for letters of administration upon the estate of James Nolan, deceased, in which she alleged that she was the widow of said deceased. After notice given, an order was made appointing her administratrix of the said estate; she duly qualified, letters of administration were issued to her, and she has ever since been such administratrix.

In January, 1901, she filed her petition praying for a family allowance, in which she alleged that she was the widow of deceased, and the court afterwards, on the twenty-ninth day of January, 1901, made an order allowing her, as the widow of deceased, the sum of twenty-five dollars per month for her support and maintenance. The amount of the item in contest accrued, and was paid under this order. On petition for partial distribution of the said estate, in December, 1902, after hearing all the parties, the court found that the administratrix is not and never was the widow of deceased, but that deceased left surviving him three brothers and the children of a deceased sister as his only heirs, and the estate was ordered distributed to the said heirs.

It seems to be conceded that said decree was correct as to said partial distribution, and that the administratrix .was not the widow of deceased. The question is .as to the validity of the family allowance under a valid order of court. In our opinion, the court properly allowed the item. The court had the power, and it was its duty, to make an allowance to the widow of deceased, if he left a widow. (Code Civ. Proc., sec. 1466.) The court, upon the proofs before it at the time, did make such order, and found the administratrix to be the

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widow. This order was appealable.' (Code Civ. Proc., sec. 963, subd. 3.) It was not appealed from, and no motion made to set it aside, and hence it became final.

(In re Stevens,