In re the Estate of Noah

McKinstry, J. — The appellant, Harriet T. Noah, as widow of the deceased, petitioned the Superior Court for an allowance of one hundred dollars a month for her maintenance, under sections 1466 and 1467 of the Code [584]of Civil Procedure. There was no child the issue of the marriage of petitioner and decedent.

The executors answered the petition, and at the trial testimony was given to prove that decedent and petitioner were married October 14, 1875, and after living together five or six weeks, separated, and thenceforth lived separate and apart until his death, which occurred on the 28th of August, 1883; that within six weeks prior to the marriage, decedent gave to the petitioner $2,825 for her personal use, and supplied her liberally during the time they lived together; that the separation was by mutual consent of tiie parties; that upon the separation, the petitioner for the allowance received from the decedent $10,500, $500 of which was paid by her to an attorney at law, who negotiated the settlement for her; that at the time of the marriage, decedent owned certain improved real estate at the corner of Spring and California Streets, San Francisco, the income from which was then about $500 a month, and had in cash about $35,000; that after the separation the decedent contributed nothing to her support, and she did not look or apply to him for her support or maintenance. They were as utter strangers, and never spoke or corresponded; that she had expended the money paid her on the separation prior to a point of time about four years before the filing of her petition for the allowance, and during such four years she supported herself from her own earnings, with the assistance of her mother and brother. The value of the property in the hands of the executors when the petition for allowance was heard was $26,400; there was no community property of the marriage. The petitioner, although informed of the death of decedent, did not attend his funeral.

The executors introduced a writtten agreement for separation, whereby, in consideration of the consent of the decedent that the said Harriet T. should live separate and apart from him, and of the receipt of $10,500 by [585]her, she agreed not to demand any alimony or support from him; that she would not contract any debts on his account; that the $10,500 should be in full satisfaction of “ all her marital claims,” etc.