Kruse v. Shriners' Hospital for Crippled Children

Opinion

STONE, P. J. Carl F. Kruse died January 15, 1955, leaving a will which named his wife, Irene I. Kruse, executrix, and bequeathed all of the income from a testamentary trust to her for life, commencing with the date of his death, with power to invade the corpus. The residue remaining upon her death was devised and bequeathed to Shriners’ Hospital for Crippled Children, hereinafter referred to as “Shriners.”

Shriners complain that the executrix made no accounting for income received during the administration, and that the court denied its request that she be surcharged with family allowance paid out of the corpus.

The will provides that all income from assets be distributed to the decedent’s wife from the date of his death and during probate administration, directing his executrix to “make the same provisions for the beneficiary as provided in said trust.” Thus the court found that Mrs. Kruse, as executrix, acted properly in paying the income to herself, as income beneficiary, and in excluding such items of income from her accounting.

Shriners’ principal complaint, however, relates to the family allowance, or those portions thereof paid from corpus. The executrix obtained an order of court for a family allowance of $750 per month prior to return of the inventory and appraisement, and thereafter no change was made in the allowance. Shriners argues that the executrix, by paying herself all income from the date of death and, in addition, $750 per month family allowance, depleted the corpus of the estate and materially reduced the residue to be distributed to Shriners upon her death.

A gift of income from date of death is deemed a bequest under the will (Estate of Roberts, 27 Cal.2d 70 [162 P.2d 461]; Estate of Platt, 21 Cal.2d 343 [131 P.2d 825]) and since it began as of the date of death it was permissible for the executrix to pay all income to herself during probate. (Estate of Lair, 38 Cal.App.2d 737 [102 P.2d 436].) The family allowance was not ordered to be paid by crediting it first to income and then, if necessary, by paying the balance from corpus. Therefore the probate judge [475]properly refused Shriners’ request to surcharge the executrix that portion of the family allowance paid from corpus.

The argument that the court, in ordering the family allowance, failed to take into account the provisions of the will providing for payment of income, comes too late. The same is true of the contention that the estate was kept in probate for an unduly long time. Precisely these arguments were made in Estate of Roberts, supra, 27 Cal.2d 70, 76, and the Supreme Court said: “Appellants contend that the widow has no right to the family allowance of $100 monthly granted her by an order of the probate court on' the grounds that the bequest of $200 monthly from the date of death of the testator was in lieu of a family allowance, and that in any event, she was not entitled to a family allowance for a period longer than three years within which the estate would have been closed but for her allegedly improper conduct in delaying the administration of the estate. The merits of these contentions cannot be determined in the present proceeding, for the order of the probate court granting the family allowance was neither appealed from nor modified. The order was made before the inventory was filed and was therefore subject not only to appeal (Prob. Code, § 1240), but to modification by the court after the inventory was filed. (Prob. Code, § 681.) Having' failed to take an appeal within the time prescribed or to petition for the modification of the order after the filing of the inventory, appellants cannot attack the order collaterally in the present proceeding.”