American Trust Co. v. Fallon

SPENCE, J. American Trust Company, special administrator of the above estate, appeals from two orders granting a family allowance of $1,000 a month to Margaret Fallon, widow of the deceased, and from an order refusing to vacate these orders for family allowance. The order denying the petition to vacate the order granting a family allowance is not an appealable order. (Prob. Code, § 1240.) The appeal from that order will therefore be dismissed. (Estate of Caldwell, 67 Cal.App.2d 652 [155 P.2d 380].)

The administrator attacks the propriety of the award of a family allowance to the widow under the particular circumstances of this case. The record sustains its position, and the orders granting such allowance must be reversed.

Frederick Arthur Fallon died on November 18, 1955, aged approximately 86. Shortly thereafter the trust company filed its petition for the probate of his will. On December 15, 1955, the widow filed her verified petition for a family allowance, seeking $2,500 per month. She claimed that the estate [404]bad a value in excess of $600,000 and that its monthly income was adequate to pay the allowance she sought.

At the hearing it appeared that she and deceased had married in 1940 and had filed reciprocal divorce actions in 1945. Both parties were denied divorces but the court awarded Mrs. Fallon support of $250 a month for one year only. This decree was affirmed on appeal. (Fallon v. Fallon, 83 Cal. App.2d 798 [189 P.2d 766].) The husband made the ordered payments for the one year and then stopped. Some seven years elapsed before the husband’s death, during which time Mrs. Fallon moved to British Columbia and received no further payments from him.

On December 22, 1955, the court granted the widow a family allowance of $1,000 per month. On December 29, 1955, the court, on the trust company’s petition, appointed it special administrator of the estate. On January 4, 1956, the court filed a second order identical to its previous order granting the widow the $1,000 monthly family allowance. Thereafter the special administrator filed its petition seeking vacation of the orders granting the family allowance. It alleged that because of the previous divorce proceedings (Fallon v. Fallon, supra, 83 Cal.App.2d 798) the widow was not entitled to a family allowance. It also alleged that, as guardian of the deceased’s estate, it had filed an inventory on December 6,1955, showing assets of some $337,000 and income for 1955 of less than $10,000. After a hearing this petition was denied.