In Re Estate of Finch

LORIGAN, J.

Deceased died testate in Los Angeles leaving an estate consisting of separate property of the value of. fifteen thousand dollars. He left a widow but no children, and by his will gave one-half of his estate to his widow; the other half to his father and four brothers. The widow petitioned for a family allowance, to the granting of which objections were interposed by one of the brothers, a devisee under the will. The court granted the widow an allowance of $75 a month and the objecting devisee appeals.

The claim of the appellant is that by reason of a contract entered into between the widow and the deceased at the time of their marriage, the widow was precluded from making any claim against the estate of deceased for a family allowance. The contract relied on by appellant is as follows:

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“Los Angeles, Calif.

“Mar. 11, 1913.

“In conformance with an understanding had contemporaneous with our contract of marriage, and in consideration of mutual love and effection said understanding is hereby reduced to writing acknowledged and recorded and agreed to by and between Allen Finch and Mary L. Finch formerly Mary L. Yogel both of Los Angeles, Calif., that all the rents, issues and profits of our separate property shall be considered as community property but our separate property as a whole shall not lose its identity as such.

“Allen Finch.

“Mary L. Finch.”

It was conceded on the hearing herein that the spouses lived happily together during their marriage; that when the contract was made between them, and during their marriage, they were each the owners of income-bearing property which was managed entirely by the husband, and the income therefrom devoted to the family expenses and their joint use; that during such marriage, and at the death of deceased, the widow owned separate estate of the value of twenty-five thousand dollars, producing, when the application for a family allowance was made, an income of at least one hundred dollars a month.

The contention of appellant is that by reason of this contract between them the widow was precluded from making any claim for a family allowance against the separate estate of her husband. His argument is, that by the contract the respondent here relieved her husband from supporting her as long as the income from her separate estate, which was to be treated as community funds, was sufficient for that purpose, a condition which existed up to the time of the death of deceased and which still exists, as the income from her separate estate is more than sufficient for her support. Hence, it is claimed, that having relieved him by contract from supporting her during her lifetime, his separate estate is relieved from any claim for such support after his death. As supporting his contention, apppellant relies on such cases as