Cutting v. Cutting

MELVIN, J.

On April 19, 1913, Francis Cutting and Alice Duren entered into a contract with reference to their contemplated marriage. Mr. Cutting was seventy-nine years of age at the time and Miss Duren was more than forty-five years old. He was a widower possessed of a fortune worth approximately five hundred thousand dollars and was the father of two living adult children. On Elay 10, 1913, Eliss Duren and Mr. Cutting were married. On July 10, 1913, he executed a codicil to his will which had been made prior to his marriage, said codicil operating as a republication of the testament.

(Estate of Cutting,

172 Cal. 191, [155 Pac. 1002].) Mr. Cutting died on the first day of October, 1913, and his estate is in the course of administration. On January 16, 1915, more than a year after her husband’s death, Mrs. Cutting filed a petition for a family allowance of one thousand dollars a month. This application was resisted by Mr. Cutting’s two children and by the Pacific Unitarian School for the Ministry, one of the legatees mentioned in the will, and after a hearing it was denied. From the order refusing a family allowance, Alice M. Cutting, widow of Francis Cutting, prosecutes this appeal.

[106]

It was admitted by Mrs. Alice M. Cutting at the hearing of her petition that she had received from the executors of the will $250 each month since the death of her husband.

The sole question presented on this appeal is whether or not the monthly payments provided by the contract made before marriage preclude the widow from demanding a family allowance. That contract, which was in writing, was in the following words and figures:

“Ante Nuptial Agreement between Francis Cutting and Alice M. Duren.

“The undersigned, in contemplation of marriage hereby agree that in consideration thereof Francis Cutting will give Alice M. Duren proper support during their married life and should said Francis Cutting die before said Alice M. Duren after their marriage he will cause her to be paid two hundred and fifty ($250) dollars per month during her life which said Alice M. Duren agrees shall be in lieu of any and all claims against the property or estate of said Francis Cutting whether community or any other property or interest of said Francis Cutting and will marry said Cutting at any convenient time requested by said Cutting who also agrees to pay said Alice M. Duren one hundred dollars per month during the time that may elapse prior to marriage and continue during her life should he die before their marriage.