In re Estate of Lux

This is an appeal by tlie next of kin—called generally the German heirs—of Charles Lux, deceased, from an order of the court sitting in probate, made March 22, 1894, allowing Miranda W. Lux, widow of the deceased, for her maintenance $2,500 per month from the thirtieth day of August, 1888, during the progress of the settlement of the estate; and we are asked to reverse the order, upon the grounds that the allowance was for too large an amount, and that she was not entitled to any allowance at all.

We will not discuss at length the question whether the court below abused its discretion by making an allowance for too much. The estate was found by the court and admitted by counsel to be of the value of $10,000,000; and it was free from debt or encumbrance. It was nearly all community property, accumulated by the joint efforts of the spouses, one-half of which would go after settlement to the widow; so that, practically, she herself would pay one-half of the allowance. The evidence shows that the amount allowed was in keeping with the scale of expenditures existing before the death of the husband. The proposition that under these circumstances, and as against collateral kin and…

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…

I concur in the order of affirmance. If the case was rightly decided on the former appeal there is no error in the last order of allowance, and if it was not rightly decided on the former -appeal that decision has nevertheless become the law of the case. The contention here is that the superior ■court erred at the last hearing in disregarding the legacy of $500 a month, and the partial distribution of the Buri-Buri rancho. As to the legacy of $500 a'month, the superior court rightly understood the 'decision of this court as containing a direction to disregard it. I think, myself, that it should have been considered, because it was a provision made by the testator himself for the support of his widow out of the community property, and to that extent I think the former decision of 'this court was erroneous. As to the Buri-Buri rancho, T do not think the life estate devised to the widow is, *83 upon a proper construction of the will, chargeable with the support of the family. That interest, whether distributed pending the administration, or at the close of it, was to go to the widow intact, and undiminished by any charge for expenses of administration or support of family.