Summary
dismissing appeal from order denying family allowance because right of widow does not survive to anyone
Summary of this case from Weiss v. Marsh (In re Estate of Marsh)Opinion
Department One
MOTION to dismiss an appeal from an order of the Superior Court of Sonoma County setting apart an estate to the widow of a deceased person. Albert G. Burnett, Judge.
COUNSEL:
T. J. Butts, and J. M. Thompson, for Appellant.
T. F. Bachelder, for Respondent.
OPINION
THE COURT
[56 P. 98] Upon the return of the inventory in the estate of the above-named decedent, and it appearing therefrom that the entire value of the estate was less than fifteen hundred dollars, Louise Bachelder, claiming to be the widow of the deceased, made application to the superior court for an order assigning to her for her use and benefit the whole of the said estate, averring in her petition that there were no minor heirs of said estate. Upon the hearing the court denied her application, and she appealed therefrom to this court. Subsequent to the appeal she died, and the respondent has moved for a dismissal of the appeal upon that ground.
The provisions of section 1469 of the Code of Civil Procedure authorize the superior court to set aside the whole of an estate without administration for the use and support of the widow and minor children, but, if there is no widow or minor child, the power does not exist, and the estate is subject to administration. As there is no minor child in the present case, the widow was the only person for whose use and support the estate could be set apart, and by her death the court lost jurisdiction to make such an order. Her death, pending the appeal from an order refusing to grant her application, had the same effect upon the power of the court as if she had died before the application had been heard. This right of the widow does not survive to anyone, and the proceedings therefore abated by her death. (See Kirschner v. Dietrich , 110 Cal. 502.)
The appeal is dismissed.