Rinaudo v. Wakefield

BARNARD, P. J. This is an appeal from an order denying appellant’s petition for an order requiring the administrator of this estate to pay to her for the benefit of the above-named minors an accrued family allowance in the amount of $1225.

Costanzo Monge died on September 7, 1924, and letters were issued in his estate on November 18, 1924. On" February 13, 1925, an order was made granting to his widow a family allowance of $125 per month commencing September 7, 1924, and continuing until the further order of the court. The widow remarried and on September 25, 1925, after due proceedings, an order was made granting to the appellant, as guardian of the minor children of the decedent, a family allowance of $150 per month commencing as of September 9, 1925, and continuing until further" order by the court. On March 1, 1929, Bank of Italy National Trust & Savings Association, a creditor of said estate, filed a petition for a reduction or termination of said family allowance alleging that said estate was then insolvent. A hearing was held at which all interested parties appeared and on March 8, 1929, an order was made reducing the family allowance to be paid for the benefit of said minors to $100 per month and ordering that amount paid monthly in advance commencing with March 9, 1929. Payments were made in accordance with this order to and including December 9, 1932. Between that date and January 12, 1934, nothing was paid except the sum of $75, leaving an accrued family allowance as of the latter date of $1225. On January 16, 1934, responsive to proceedings duly had, the court set aside to said minors a probate homestead and further ordered that said family allowance “be discontinued from and after the 12th day of January, 1934”.

Thereafter, the appellant, as guardian of said minor children, filed a petition asking that the administrator be required to pay said accrued and unpaid family allowance. Answers were filed denying that the administrator had sufficient cash on hand to pay said sum or any sum to said minors, and alleging that the estate was and had been insolvent at all times during the course of administration. The court found that $4,771.86 was then in the hands of the administrator, that all expenses of administration had been [237]paid except the sum of $300 as attorney’s fees, that claims had been allowed aggregating about $27,000 which had not been paid, that from December 9, 1932, up to January 12, 1934, family allowance in the sum of $1225 accrued in favor of said minors and had not been paid, and that on January 12, 1934, the court “did then terminate said family allowance”. It was further found “that on the 9th day of December, 1932, the estate of said decedent was insolvent, and that said estate continued to be insolvent and is now insolvent”. An order was made denying the petition and this appeal followed.