Estate of Gould

LENNON, J.

This is an appeal by E. B. Gould, a special administrator of the estate of Frank H. Gould, deceased, from an order allowing respondent, Nettie Gould, the widow of the deceased, the sum of $75 a month as a family allowance.

On January 19, 1918, the superior court of the city and county of San Francisco granted to Nettie Gould an interlocutory decree of divorce from Frank H. Gould, upon a cross-complaint filed by her in an action instituted by the said Frank H. Gould. This decree required the plaintiff, Frank H. Gould, to transfer to the respondent herein certain property, real and personal, it being at the same time ordered that “All other property of said community, real, personal or mixed, and of every description, is hereby assigned and allotted to the plaintiff, Frank H. Gould, free and clear of all claim of the defendant [Nettie Gould].”

Frank H. Gould died on January 26, 1918. On March 1, 1918, Nettie Gould made her application to the superior court of the city and county of San Francisco for a family allowance. The application was resisted on the ground that Nettie Gould had not been for many years in fact a member of the family of Frank H. Gould, and, moreover, that Frank H. Gould died possessed of no property save, that which had formerly been the property of the community and which had been awarded to him free and clear of all claim of Nettie Gould including, so it is contended, her claim for a family allowance. On March 12, 1918, the court made the order appealed from allowing Nettie Gould a family allowance beginning with February 1, 1918, and continuing until further orders of the court.

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When a person dies leaving a widow under section 1464 of the Code of Civil Procedure, such widow is entitled to a reasonable provision for her support to be allowed by the superior court or a judge thereof. This provision is not conditioned upon her having lived in a family relation with her husband at the time of his death. It follows, therefore, that the right of Nettie Gould to a family allowance must be determined independently of the circumstance that she had not lived with Frank H. Gould for some years prior to his decease.

(Farris