Opinion
No. 16994
12-21-1956
In the Matter of the ESTATE of Edgar Laurence DOW, a/k/a E. L. Dow, Deceased. Maxine Patricia HUTCHINSON, Appellant, v. Maxine B. DOW, Respondent.*
William A. White, Hutchinson & Quattrin, San Francisco, for appellant. J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, San Francisco, Erskine, Erskine & Tulley, Morse Erskine, II, San Francisco, for respondent.
In the Matter of the ESTATE of Edgar Laurence DOW, a/k/a E. L. Dow, Deceased.
Maxine Patricia HUTCHINSON, Appellant,
v.
Maxine B. DOW, Respondent.*
Dec. 21, 1956.
As Modified on Denial of Rehearing Jan. 18, 1957.
Hearing Granted Feb. 13, 1957.
William A. White, Hutchinson & Quattrin, San Francisco, for appellant.
J. Oscar Goldstein, P. M. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, San Francisco, Erskine, Erskine & Tulley, Morse Erskine, II, San Francisco, for respondent.
FRED B. WOOD, Justice.
In this estate a decree of final distribution was entered February 2, 1955, fixing and directing payment of certain debts, expenses of administration and a legacy, and awarding the residue in equal shares to Maxine Dow and Patricia Hutchinson, the widow and the daughter of the decedent. On the same day, Patricia appealed from the whole of the decree. On March 8, 1955, she modified the scope of her appeal by limiting it to the awards to Maxine (the legacy, a debt, reimbursement for certain expenses, and compensation as administratrix) and to awards to certain attorneys for services rendered the estate.
On February 18, 1955, the widow filed a petition for an allowance from the estate. After a hearing the petition was granted. The order (which is the subject of the instant appeal) was filed April 13, 1955. It directs that $500 a month 'be appropriated from said Estate' for the maintenance of Maxine, commencing as of February 2, 1955, and continuing 'during the progress of the settlement of the Estate, and the Appeal now pending from the Judgment and Decree of Final Distribution, or until the further Order of this Court.'
The evidence supports these findings, upon which the order is based: (1) the total assets of the estate are approximately $391,937, (2) the widow has no assets of her own to support and maintain herself pending the hearing of Patricia's appeal from the decree of distribution and is completely without funds for necessary medical care and hospitalization, (3) the widow is entitled to a reasonable allowance out of the property of the estate for her maintenance and support according to her circumstances, and (4) $500 a month is a reasonable amount to be paid therefrom for that purpose.
In view of these findings, the probate court was not precluded from making such an award by the rendition in September, 1953, of a decision, In re Estate of Dow, 120 Cal.App.2d 296, 260 P.2d 970, directing termination of a former similar award, That termination was predicated upon findings that at that time there were no matters pending which called for further administration except the payment of a claim of the administratrix (in her individual capacity) and the settlement and payment of certain expenses of administration, and that it was to the best interests of all parties interested to close the estate immediately; hence, no further time could properly be consumed in the settlement of the estate.
That was a markedly different condition from that which obtained in April, 1955, when the order now under appeal was made, in view of Patricia's appeal from the final decree of settlement and distribution, following as it did a trial of some duration and presenting a number of complex problems of its own, respecting which we refer to our decision of April 2, 1956, in Dow v. Superior Court, 140 Cal.App.2d 399, 297 P.2d 30, for further details. Such a change in conditions prevented the decision of September, 1953, from precluding (by way of res judicata or as the law of the case) consideration anew of the propriety of awarding an allowance to the widow. See In re Estate of Dow, 91 Cal.App.2d 420, 427-429, 205 P.2d 698.
But the disposition which the decree of distribution made of the property in the estate put that property, all of it, beyond the reach of any subsequent order purporting to subject it to any other purpose or use; made it incompetent for the court to 'appropriate' any of it for the payment of a widow's allowance.
That decree settled the administratrix' third and her fourth and final accounts and reports; found that all debts, funeral expenses and expenses of the last illness, including claims presented and allowed, have been paid, except those which it listed and ordered now to be paid; ascertained and ordered paid certain expenses of administration, to certain persons designated as entitled thereto; authorized the administratrix 'to withhold the sum of $100 as and for a reserve for the closing expenses of said Estate, and for the payment of any taxes which may be properly assessed against said Estate, and to distribute the unexpended balance thereof when the statutory period of liability for such taxes has expired in the propertion of one-half thereof to Maxine B. Dow, and one-half thereof to Maxine Patricia Hutchinson'; and then decreed that 'all of the balance of the * * * property of said Estate, after payment of all obligations, costs, and attorneys' fees, as herein provided [italics supplied], be, and the same is hereby divided and distributed equally between' Maxine and Patricia; also, that the administratrix file a supplemental account showing all receipts and disbursements since the date of filing her fourth and final account, to be approved in the manner provided by law; and distributed all unknown property to Maxine and Patricia in equal shares.
Manifestly, this decree did not envisage a family allowance and did not leave any property of any kind unappropriated or undistributed. Hence, when later the order for the widow's allowance was made, there was in the estate no property that could be 'appropriated' for payment of the allowance.
This principle was established in this state as early as 1868, when our Supreme Court held that an order 'distributing the entire estate of the executrix as sole devisee under the will, was the final order of the Court in the matter of the estate, and its effect, unless subsequently modified or reversed on appeal, was a final disposition of all the funds of the estate, and an investiture of the absolute right and title thereto in the executrix as sole devisee; nothing of the estate remained for the Court to act upon. An appeal from that order, duly perfected, suspended and stayed its vital force and effect; and, pending such appeal, no action could be taken by the Court below for the enforcement of the order, or upon any subject matter embraced therein. The subject matter of that order, from which an appeal was pending at the time this subsequent order [for payment of attorney fees for preserving the estate] now under consideration was made, was the money belonging to the estate then subject to distribution by order of the Court. This subsequent order, if effectual for any purpose, operates upon the same subject matter as the former order, and disposes of a portion thereof in direct conflict with the former order, and is, therefore, null and void for want of jurisdiction of the Court at the time it was made.' In re Estate of Garraud, 36 Cal. 277, 279-280.
That principle has been consistently adhered to and applied, illustrated by the following cases: In re Estate of Freud, 134 Cal. 333, 66 P. 476, reversing an order for partial distribution because the very property involved had previously been ordered sold to pay debts and expenses of administration (the fact that the order of sale was suspended by the taking of an appeal therefrom 'would not justify the probate court in so disposing of the property as to defeat the execution of the decree [of sale] in cases of its affirmance,' 134 Cal. at page 337, 66 P. at page 478; In re Estate of Baird, 181 Cal. 742, 186 P. 351, reversing an order of sale of certain property which was made after the entry of and prior to the taking of an appeal from a decree distributing that very property to the sole heir; and In re Estate of Reiss, 68 Cal.App.2d 128, 155 P.2d 862, dismissing an appeal from an order denying a petition for compensation for services rendered in preserving the assets of the estate, the property of the estate having been distributed pursuant to a decree of distribution (the decree, apparently, had become final but its finality, it would seem, was not an indispensable factor for the court relied upon In re Estate of Baird, supra, also 11 Cal.Jur. 257-258, 11A Cal.Jur. 125-126, and 11B Cal.Jur. 785-786). The Supreme Court of Oklahoma, citing the Girraud and the Baird cases among others, has applied this same principle to an order for a widow's allowance made after entry of a decree distributing all of the property of the estate. In re Hicks' Estate, 189 Okl. 310, 116 P.2d 905.
Respondent directs attention to the fact that, until the enactment of the Probate Code in 1931, section 1666 of the Code of Civil Procedure provided, in respect to the decree of distribution that, 'Such order or decree is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal,' and that when this provision was transferred to the Probate Code, as a part of section 1021 of the latter, it was changed to read 'Such order or decree, when it becomes final, is conclusive as to the rights of heirs, devisees and legatees.'
Petitioner contends that this amendment (particularly the interpolation of the words 'when it becomes final') changed the very basis of the rulings in the Garraud, Freud, Baird and Reiss cases, with the result that those cases no longer correctly state the law. The 1931 amendment had no such effect. It made no substantive change. The statement that the decree is conclusive 'when it becomes final' is really but a different manner of expressing the former statement that the decree is 'conclusive * * *, subject only to be reversed, set aside, or modified on appeal.' The decree never was regarded as conclusive until it became final. See In re Estate of Schmierer, 168 Cal. 747, 749, 145 P. 99; Drexler v. Washington Development Co., 172 Cal. 758, 760, 159 P. 166.
That this substitution of 'when it becomes final' for the words previously used was made by the Code Commission and the Legislature for the purpose of simplification and uniformity additionally appears from similar changes which were made when the text of former section 1686 of the Code of Civil Procedure was carried into section 1054 of the Probate Code and the provisions of the last sentence of former section 1701 became a part of section 1123 of the Probate Code.
Moreover, the doctrine of the Garraud case was not predicated upon the finality of the decree of distribution. The decree there involved was not final; it was in a state of suspension due to an appeal which was still pending.
It seems clear, therefore, that the order appealed from must be reversed.
This, of course, is not a holding that when rendering a decree of final distribution the probate court is without power to grant or to continue or to reserve jurisdiction to grant a family allowance, nor that the entering of a decree of distribution necessarily terminates a previously issued and unrevoked order for a family allowance.
The property of a decedent is 'chargeable with * * * the payment of * * * the allowance to the family.' Probate Code, § 300 and the allowance is payable 'during the progress of the settlement of the estate,' limited to one year in the case of an insolvent estate, Prob.Code, § 680.
Precisely when 'the progress of the settlement of the estate' is at an end seems not to have been definitely decided in this state, although there is some indication that it does not necessarily end until the members of the family entitled to the allowance have received their distributive shares of the estate. Thus, it has been said that this statute was enacted 'to make a provision for the family of the deceased prior to the time when the estate could be finally distributed to them.' In re Estate of McSwain, 176 Cal. 280, 284, 168 P. 117, 119. See also Estate of Walkerley, 77 Cal. 642, 644-645, 20 P. 150; In re Estate of Jacobs, 61 Cal.App.2d 152, 155-156, 142 P.2d 454; In re Estate of Blair, 42 Cal.2d 728, 730-731, 269 P.2d 612.
The Supreme Court of Oklahoma, construing a similar statute, has held that the entry of a decree of distribution does not, as a matter of law, terminate an order for a widow's allowance which by its terms was made to run "until said estate is closed," the court saying in part '[w]e think the clear intent of the Legislature, as expressed in the statute, supra, was to make provision for the widow out of her decedent's estate until such time as she has in due process of law received the possession and use of her share of the estate so that she might apply the same to her needs. We construe the statutory expression, 'during the progress of the settlement of the estate,' to mean until such time as the above eventuality shall have occurred and hold that the term, 'until said estate is closed,' as appears in the order here involved, has the same meaning.' Crane v. Howard, 1952, 206 Okl. 447, 244 P.2d 559, 562.
Similarly, under such a statute, it might be competent in a decree of distribution to grant or reserve jurisdiction to grant a widow's allowance and then order distribution of the property of the estate subject to a charge for the payment of such an allowance until the widow has received the possession and use of her share of the estate unless the allowance is sooner terminated by subsequent order of the court.
We mention these possibilities to make it clear that this decision does not preclude them. We refrain from undertaking to decide them because the facts of this case do not necessarily present them.
The order for a widow's allowance is reversed.
PETERS, P. J., and BRAY, J., concur. --------------- * Opinion vacated 312 P.2d 1.