American Trust Co. v. Fallon

SHENK, J.

I dissent. The majority opinion relies on Estate of Brooks, 28 Cal.2d 748 [171 P.2d 724] and Monroe v. Superior Court, 28 Cal.2d 427 [170 P.2d 473] as authority for holding that where during marriage an order for maintenance and support has been made to the wife for a limited period and no decree of divorce has been granted, a showing of changed circumstances must thereafter be made as a necessary foundation for an award of a family allowance from the estate of her deceased husband.

In Estate of Brooks, an interlocutory decree of divorce had settled the property rights of the parties and terminated the right to support. In the present case the widow’s right to support was not terminated by the 1945 support order. If she had petitioned the court for additional support during Mr. Fallon’s lifetime, she might have obtained it, under the holding of this court in the Monroe case, upon a showing of changed circumstances and by modification of the order. Upon Mr. Fallon’s death, however, Mrs. Fallon was no longer entitled to move for a modification of the prior support order. (See Hilton v. McNitt, ante, p. 79 [315 P.2d 1]; Civ. Code, § 139.) Her right thereafter to any financial assistance resulting from the marital relationship became a preferential statutory right under section 680 of the Probate Code which provides that the widow is “. . . entitled to such reasonable allowance out of the estate as shall be necessary for [her] maintenance according to [her] circumstances, during the progress of the settlement of the estate. ...”

This court now requires the surviving widow to show, before she may obtain a family allowance after the death of her husband, such change of conditions as would entitle her to a modification of a support order made during the lifetime of her deceased husband. Such a requirement should relate only to the distinct and separate remedy in a proceeding to modify the support order made during the husband’s lifetime.

The Brooks case should not be extended beyond a holding that where the right to support has been terminated during the lifetime of the husband no family allowance may be granted from his estate. It is a sufficient showing to entitle her to a family allowance that Mrs. Fallon’s right to support was not cut off by the expiration of the 1945 support order. The court now extends the Brooks and Monroe cases to reach a result which is neither consonant with the holdings of those cases nor with the direct terms and unquestioned spirit of Probate Code, section 680. I would affirm the orders.

Respondent’s petition for a rehearing was denied December 17, 1957. Shenk, J., and Carter, J., were of the opinion that the petition should be granted.