Silverman v. Union Bank

California Court of Appeal Mar 6, 1967 No. Civ. No. 29479Published

Before: Roth

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Holding. A widow's family allowance is not exempt from attachment or execution by creditors, as it is not among the properties specifically exempted by the Code of Civil Procedure. Funds held by an executor that have been ordered paid to a beneficiary are subject to attachment.

Issues

Whether a widow's family allowance is exempt from attachment or execution.
Whether a family allowance is in custodia legis and therefore immune from attachment.
Whether a writ of attachment served on a bank in its corporate capacity is valid against the bank acting as an executor.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In providing for such allowance in section 680 of the Probate Code, the Legislature gave it a highly favored position in relation to other obligations of the estate, but did not exempt it from attachment or garnishment.”

“The widow’s family allowance is not one of the exempted properties.”

“We have no authority to extend the statute of exemptions by construction.”

ROTH, P. J. Dorothy K. Silverman, widow of Fred R. Silverman, as permitted by Probate Code, section 680, filed for a family allowance and pursuant thereto, an order was made directing Union Bank, executor of the estate of Fred, to pay her a family allowance of $1,000 per month,1 commenc[182]ing as of August 18, 1963, and continuing to distribution, but in no event longer than 19 months.

On May 15, June 18 and July 17, all in 1964, separate attachments, ancillary to an action against Dorothy, filed in the Municipal Court of Beverly Hills, were levied, pursuant to Code of Civil Procedure, section 541,2 upon Union bank, Union Bank, and Union Bank Trust Department, as a consequence of which Bank, as executor, withheld payment. On August 6, 1964, Dorothy filed a petition, citing the Bank for nonpayment of the family allowance and prayed that the executor be ordered forthwith to pay “all the family allowance due and payable to her under the said order to and including the hearing of this petition and . . . executor... show cause why it has not been paid . . . and why it should not be ordered to forthwith pay ... in full; . . . .”

Dorothy argued in the trial court and urges here that:

1) A widow’s allowance is exempt from any levy of attachment or execution;

2) A widow’s allowance is in custodia legis and not attachable ;

3) The writs of attachments were not levied upon the Bank in its capacity as the executor and therefore should have been ignored; and

4) The custom of . Bank in making payments pursuant to the order creating the family allowance on the last day of the monthly period, instead of in advance monthly, commencing with the date fixed in the order, resulted in the return in one instance, of funds by Bank which it would not have had, had it paid in advance monthly.

The family allowance is for the widow's maintenance and support and for no other purpose. (Estate of Blair, 42 Cal.2d 728, 730 [269 P.2d 612] ; Estate of Treat, 162 Cal. 250, 255 [121 P. 1003] ; Holmes v. Marshall, 145 Cal. 777, 781 [79 P. 534, 104 Am.St.Rep. 86, 2 Ann.Cas. 88, 69 L.R.A. 67]) It is favored by law (Prob. Code, § 680; Estate of Whitney, 171 Cal. 750, 755 [154 P. 855].)

Whether a family allowance is exempt from attachment and execution, has not been decided in California.

Silverman v. Union Bank

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