Schwartz v. Schwartz

WHITE, J. This is a companion case to that of Estate of Schwartz, this day decided (ante, p. 301 [179 P.2d 863]). [309]Minnie K. Schwartz, widow of decedent, appeals from an order denying her petition for a family allowance, such denial being based on the ground that by the terms of an antenuptial agreement she had waived her right to such allowance.

Section 680 of the Probate Code expressly relates to the support of the family of the decedent to which the widow and minor children become entitled upon his death and the probate of his will, irrespective of the interest which they or any of them may have had in the property of said decedent during his lifetime, and without regard to their heirship or right of inheritance therein. However, it is now settled law in this state that although under section 680 no more is required of one who petitions for a family allowance than that she be the testator’s widow, nevertheless, it is not in every case where an applicant establishes that she is the decedent’s widow that the section gives her an absolute statutory right to such an allowance. “An applicant may have waived her right to an allowance by an agreement to that effect... or may have lost that right by her conduct.” (Estate of Brooks, 28 Cal.2d 748, 750 [171 P.2d 724].)

In the instant case there is no contention that the widow lost her right to a family allowance by reason of her conduct. She was residing with the testator at the time of his death and as his wife was receiving maintenance and support from him.

A review of the cases involving antenuptial and separation agreements wherein it was urged that the widow had waived her right to a family allowance or a probate homestead, impresses us that each particular case must be determined in the light of all the surrounding circumstances as disclosed by the record and the language used in the particular agreement under consideration. We think it fair to say that in a case such as the one now before us, where the spouses had lived together until the husband’s death under conditions that made him liable for her support until that time, the right should not be held to have been surrendered by an agreement between the spouses, “except by clear and explicit language.” (Estate of Whitney, 171 Cal. 750, 756 [154 P. 855].)

We are therefore confronted with the question of whether, in the agreement made by appellant wife, the words were such as to clearly import an intention to surrender the