Moore v. Moore

McKee, J.: W. H. Moore died at the county of Santa Cruz, in this State, on October 30,1871, leaving surviving him his widow, the appellant in this case, and five children. The respondent, having been appointed administrator of the estate, qualified March 4, 1872. According to the inventory and appraisement which he filed, the estate amounted in value to fifty-one thousand seven hundred and three dollars. On April 29,1874, the widow petitioned the Probate Court for a family allowance. On the hearing of the petition, an order was éntered to the effect “that the sum of two hundred and fifty dollars in gold coin of the United States of America be, and the same is hereby allowed out of the said estate of said deceased for each and every month since the death of the said deceased, and until the close of the administration of said estate, for the support and maintenance of the said family of the said deceased.”

On the twenty-eighth of July, 1877, the widow, complaining that the administrator had refused to comply with the order of the Court, except in part, applied for an order to compel the administrator to pay over to her for the support of the family, the moneys appropriated for that purpose which remained unpaid.

On the trial of the issues made by the petition and answer, the Probate Court found that the family allowance to the date of filing of the petition amounted to seventeen thousand six hundred and fifty dollars; that the administrator had paid to the petitioner personally, under the order of the Court, one hundred and twenty-five dollars per month up to the month ending June, 1877, amounting in all to eight thousand seven hundred and ten dollars; that on May 9,1877, he also [528]paid to her the sum of six thousand dollars; and had expended for the tuition, board, clothing, and necessary expenses of three of the children who were sent to school, three thousand and ninety-seven dollars and eighteen cents, making in all the total of seventeen thousand eight hundred and seven dollars, paid and expended. Upon this finding judgment was entered denying the application of the petitioner. She moved for a new trial, which was denied, and from that order this appeal is taken.

The expenditures for the maintenance and education of the children, and the payment of one hundred and twenty-five dollars per month personally to the widow, were the result of an understanding and arrangement between her and the administrator as to the education and maintenance of some of the children out of the family allowance. By her consent, one of the children of the deceased was sent to school during a portion of the time, after the death of the deceased. Of tho others, two were sent to school about a year before the filing of the petition, remained there for about a year, hut afterward did not return to reside with the petitioner, and the other two were under the personal care and control of the petitioner. Under the arrangement as to the payment of the family allowance, the widow received and accepted from the administrator the one hundred and twenty-five dollars per month as sufficient for the needs of herself and the two children under her personal supervision; and the balance of the allowance, with her approval and by her direction, was expended by the administrator for the maintenance and education of the three children who attended school.