Estate of Wallace

This is an appeal pursuant to Probate Code section 1240 from an order granting family allowance to respondent Barbara S. Wallace payable by the estate of her late husband: It raises the novel issue of the competency as evidence of affidavits or declarations in a contested proceeding on a petition for family, allowance. The appeal also includes issues of the relevancy of length of marriage to the award of family allowance to a surviving widow and the propriety of an exercise of trial court discretion in making the award.

We conclude: (1) affidavits or declarations are not competent evidence in a contested proceeding concerning the award of a probate family allowance; (2) length of marriage is irrelevant to the right of a surviving widow to the allowance; and (3) the trial court did not abuse its discretion. We reject as untimely a further contention first asserted by the appellant executor in his reply brief. Accordingly, we affirm the order.

Facts

Prior to October 1969, Donald P. Wallace was employed by a corporation, Wallace Machinery Co., at a salary of $48,000 per year plus 10 percent of net profit. The contract provides for the payment of $1,000 per month to the…