I dissent. The former appeal, reported in 100 Cal. 597 , was taken by the widow from an order made May 13, 1892. The order was reversed and the cause remanded for further proceedings. Such proceedings were had, and a new order was made March 22, 1894, from which the present appeal is prosecuted by the next of kin.

Lux died testate in March, 1887, and it is stipulated that his estate is of the value of $10,000,000. Nearly all was community property. His family consisted solely of his widow.

The first allowance was for $2,500 per month, until the return of the inventory. This sum was paid to her monthly until November, 1891—four years and eight months. The court ruled, however, that the inventory had been returned August 30, 1888, and that after that time the allowance was paid by the executors at their peril. That is, they would only be allowed a credit for such sum as the court should determine ought to have been allowed.

The order of May 13, 1892, was for $1,000 per month from August 30, 1888. From this order the widow took an appeal, and on the appeal contended that the order was erroneous, because: 1. It was retroactive, and deprived her of the preliminary allowance which she claimed continued until the filing of the inventory of May 16, 1890; and 2. Because it only continued the allowance until November 15, 1391, instead of during the progress of the administration.

This court held that the order was properly made to operate from August 30, 1888, but reversed the order appealed from, and directed the probate court to make *84 an allowance to the widow to continue during the progress of the settlement of the estate, and in such amount as it shall deem reasonable, without regard to the fact that she may have separate property sufficient for her support.

One trouble with the judgment of reversal and with the opinion is that there was no claim made that Mrs. Lux had any separate property, and in fact she had none except the homestead which had been conveyed to her before the death of the testator. There was no-claim that she was deriving any income from it. It appears, then, that she had sold her life estate in the Buri-Buri rancho and had realized $137,000 from the sale, and it was this resource which was specially considered, although it is inaccurately called separate property.

The report does not show that it then appeared that there had been a partial distribution of the estate by which the Buri-Buri rancho was set apart to Mrs. Lux, and with the record used on that appeal before me I find no evidence that such partial distribution had been made. The case presented was that Mrs. Lux had sold her interest as a devisee—the grantee taking it subject to administration. But a widow is not compelled to sell her interest in the estate in order to procure the means-of living.

The court in its opinion carefully guarded against the contention that if there had been a partial distribution of the estate such fact would not affect the right of the widow, to her support out of the estate. It said: “Of course, we are not to be understood as holding that the value of the property set apart for the use of the family, under section 1465 of the Code of Civil Procedure, or the income of such property, is not to be considered in determining what is a reasonable -allowance to be made from the remaining portion of the estate for the support of the family during the progress of the settlement of the estate; nor that such order for family support, when made, may not be subsequently modified by the court if *85 the condition of the estate or the relation of the family thereto should change; as if, for instance, it should appear that the value of the estate was materially less than shown at the date of the order sought to he modified, or that its indebtedness is greater than was then supposed, or in the event of a partial distribution to the widow or children before the final distribution of the estate.”

If the court may modify or discontinue, an allowance because there had been a partial distribution, such fact should be considered in malting the allowance if the distribution was made before the discretion of the court is called into exercise.

The record on this appeal shows that there had been a partial distribution by which the Buri-Buri rancho was set apart to Mrs. Lux for life, and also rents which had then accrued, amounting to $33,460. It was assumed that the amount of rents after deducting expenses was $27,000. This was in July, 1890.

The order of reversal must be construed in the light of the opinion. It cannot be understood as directing the court to fix an allowance which should not be • modified, even if those changes should take place which are mentioned in the above extract from the opinion. And so, I think, if on the rehearing a different state of facts- were shown, there is nothing in the opinion or the judgment which would prevent the court from taking such new facts into consideration.

Respondents argue the case as though the probate court was bound to determine the question as to what allowance will be necessary during the entire progress of the settlement of the estate, at the time the exempt property is set apart to the widow and family. There is no such requirement in the statute, and if there were it would have been a very unwise one. The power of the court and its duty extends to the entire period of administration. It must make such allowance—and such only—as shall be necessary during the progress of the settlement of the administration.

*86 The general expectation is that the administration will be closed in about one year. The exempt property may be amply sufficient for that period, and utterly insufficient for a further period. If forced to determine the matter when the exempt property is set apart, it would necessarily determine that no further allowance was necessary. So, too, the exempt property may be unproductive for the first year and after that produce an ample revenue. I think if the court were to make an allowance for the first year, and none for the second because none was required, it would literally comply with the statute. It would have made such reasonable allowance out of the estate as was necessary for the support of the family during the progress of the settlement of the administration.

The duty of the court to make such allowance as may be necessary, and its control over the allowance that it may do so, continues during the entire administration. This proposition is, I think, involved in the above extract from the opinion rendered on the former appeal. The true doctrine was accurately stated in In re Walkerley, 77 Cal. 643 .

Upon this subject the former opinion, taken as a whole, merely holds that the family of the deceased is entitled to a support from the estate during the progress of the settlement of the estate, although the widow or children may have other resources sufficient for that purpose. The probate judge was of .the opinion that, under the order made, he was not at liberty to take into consideration the fact that there had been a partial distribution, or the fact that the widow was entitled, under the will, to $500 per month for life. His construction of the opinion was a reasonable one, but, as to the paragraph above set out, the court expressly disclaimed the intent to so hold. I think the probate court in this matter erred.

As the court found that $2,500 per month was necessary for the support of the family, and it appears that, through the partial distribution, and the provision made *87 in the will, of which the widow might have availed herself, the sum of about $1,000 was provided, that sunk should be deducted from such monthly allowance.

Mrs. Lux has died since this appeal was taken, and it is. claimed that her right to an allowance died with her; that she had no title or vested right which could descend to her heir or pass to her administrator. There-is surely much plausibility in this contention. In the former opinion it was suggested that the duty of the husband and father for the support of the wife and children rested upon his estate during administration. If a hither give to his wife or minor child money to spend for her or its support, the money belongs to the father* or husband, until expended. If the money were placed in the hands of the widow, or guardian, for the minor children, it must be held in trust for that purpose. Upon this theory, logically, when allowance money is paid to the widow, she takes it in trust for the purposes for which it was allowed. Certainly, the widow has no vested interest in an allowance before it is actually made. It is not on the same plane as her distributive share as an heir in the estate. The intent is, that the money shall be immediately expended, and shall not swell the estate of the beneficiaries.

She is not, before the amount is judicially determined, entitled to any specific sum, or, indeed, to anything, but only that the probate judge shall determine-whether there is a necessity for an allowance.

The title to the money paid as an allowance is not. settled by section 1468. The provisions of that section, would be inapplicable. Take the case where there ara minor children who are not the children of the widow* and who have guardians of their person and estate. In such case the court might conclude that the widow’s share of the exempt property was ample for her support, but that the children needed an allowance. In such case she would not be entitled to any portion of it, and there can be no doubt of the power of the court to dispose of the fund so that the children would be sup> *88 ported. And, in such a case, if one of the children were to die, would its share of the unused allowance go to its estate?

In this case there are no children, and the suppositions are made simply by way of an argument that until there is money due under some valid order the widow has no vested interest.

Ordinarily the allowance is doled out in such small sums, by means of frequent payments, that this question does not become important, but here the allowance was $30,000 per annum, and payments have been stayed for several years by appeals taken from the order. Therefore, when Mrs. Lux died a large amount had accrued.

Since there'were no minor children we are not forced to consider questions that might be embarrassing under different circumstances. The practice has been that when the money has been paid the court is not further concerned about it. It will not require the beneficiaries to account for it, but will assume that it was necessary. So far, therefore, as concerns the money which has been paid—-if not above what is finally adjudged to be necessary—no question can arise.

And I think the same rule must prevail in regard to allowances which had accrued, but which had not been paid, when Mrs. Lux died. Since it was adjudged in the former appeal that the court would not consider other resources in determining what allowance is necessary, if she had been forced to look elsewhere for her means of support while payments were suspended by the appeals, she, or in case of her death, her estate, -should be reimbursed therefor.

It is said that until the order has become final she had no vested right. I do not think it necessary to hold that the order must be final in the sense in which a judgment must be final to be used as evidence of a right. If there had been no appeal, it would not have been final, in that sense, until the time for the appeal had -elapsed. It was operative, however, and, though the right to claim the benefit of it was suspended by the *89 appeal, it was at all times so far operative that his right to the allowance accrued as each fell due, subject to the chance that the order would be reversed.

I think the order appealed-from should be modified by reducing the amount of the allowance to $1,500 per month, and as modified affirmed.

Henshaw, J., concurred in the dissenting opinion.

Rehearing denied.