Fallon

I dissent. The majority opinion relies on Estate of Brooks, 28 Cal.2d 748 [ 171 P.2d 724 ] and Monroe v. Superior Court, 28 Cal.2d 427 [ 170 P.2d 473 ] as authority for holding that where during marriage an order for maintenance and support has been made to the wife for a limited period and no decree of divorce has been granted, a showing of changed circumstances must thereafter be made as a necessary foundation for an award of a family allowance from the estate of her deceased husband.

In Estate of Brooks , an interlocutory decree of divorce had settled the property rights of the parties and terminated the right to support. In the present case the widow’s right to support was not terminated by the 1945 support order. If she had petitioned the court for additional support during Mr. Fallon’s lifetime, she might have obtained it, under the holding of this court in the Monroe case, upon a showing of changed circumstances and by modification of the order. Upon Mr. Fallon’s death, however, Mrs. Fallon was no longer entitled to move for a modification of the prior support order. (See Hilton v. McNitt, ante, p. 79 [ 315 P.2d 1 ]; Civ. Code, § 139.) Her right thereafter to any financial…

American Trust Company, special administrator of the above estate, appeals from two orders granting a family allowance of $1,000 a month to Margaret Fallon, widow of the deceased, and from an order refusing to vacate these orders for family allowance. The order denying the petition to vacate the order granting a family allowance is not an appealable order. (Prob. Code, § 1240.) The appeal from that order will therefore be dismissed. (Estate of Caldwell, 67 Cal.App.2d 652 [ 155 P.2d 380 ].)

The administrator attacks the propriety of the award of a family allowance to the widow under the particular circumstances of this case. The record sustains its position, and the orders granting such allowance must be reversed.

Frederick Arthur Fallon died on November 18, 1955, aged approximately 86. Shortly thereafter the trust company filed its petition for the probate of his will. On December 15, 1955, the widow filed her verified petition for a family allowance, seeking $2,500 per month. She claimed that the estate *404 bad a value in excess of $600,000 and that its monthly income was adequate to pay the allowance she sought.

At the hearing it appeared that she and deceased had married in…

I dissent.

In my opinion neither Estate of Brooks, 28 Cal.2d 748 [ 171 P.2d 724 ], nor London G. & A. Co. v. Industrial Acc. Com., 181 Cal. 460 [ 184 P. 864 ], announces a rule of law which may be invoked to defeat the claim of Mrs. Fallon to a family allowance here. Furthermore, this is not a Monroe case (Monroe v. Superior Court, 28 Cal.2d 427 [ 170 P.2d 473 ]). There, an action for separate maintenance had been brought by the wife, and after issue joined, had been tried and a decree rendered which had become final. In that case the trial court had entered a decree of separate maintenance which contained no reservation of jurisdiction as to property rights or otherwise, and which purported to be a final decree and to fully and forever settle the reciprocal rights and obligations of the parties. It made provision for support of a minor child; it awarded to the wife as her sole and separate *407 property the family borne, with all furniture, furnishings, and equipment therein; it awarded to her the specific amount of $250 a month to be paid by the husband for 27 months commencing on a specified date, and certain insurance which was to be kept in force by the husband for her…