I dissent. The sole question presented by this original proceeding in mandate and general demurrer to the petition is: Do the provisions of section 1466 of the Code of Civil Procedure authorize granting to a surviving husband a family allowance out of the estate of his deceased wife?
Petitioner, a surviving husband without estate of his own and who throughout his married life was supported and maintained out of his wife's property, seeks a family allowance from her estate now in the course of probate. He alleges also that the estate possesses no real property out of which a homestead might be carved and that the exempt property is insufficient for his support.
The power of the court to grant a family allowance from the estate of a deceased person is purely statutory (McSwain'sEstate, 176 Cal. 280 [168 P. 117]). The solution of the problem before us, therefore, rests upon the interpretation given to sections 1465 and 1466 of the Code of Civil Procedure, which read in part as follows:
"1465. All Property Exempt From Execution to Be Set Apart for Use of Family. Upon the return of the inventory . . . the court may . . . set apart for the use of the surviving husband or wife . . . all the property exempt from execution, including the homestead selected. . . . If *Page 674 none has been selected . . . the court must select . . . a homestead for the use of the surviving husband or wife, and the minor children. . . ."
"1466. Court May Make Extra Allowance. If the property set apart is insufficient for the support of the widow and children, or either, the court . . . must make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family, according to their circumstances, during the progress of the settlement of the estate. . . ."
In brief the contention of respondents is that under the latter section a condition precedent to allowance by the court of maintenance for the family is that the property set apart be insufficient for the support of the widow and children; hence where there is neither widow nor children, the granting of a family allowance is unauthorized. This contention of respondents, however, is in the face of a contrary holding of this court (Inre Garrity, 108 Cal. 463 [38 P. 628, 41 P. 485]).
In that case the right to a family allowance was before the court and it was contended that inasmuch as real estate existed out of which might be set apart a homestead, until this was done the granting of such allowance was unauthorized and would further be unauthorized unless it was found that after setting apart a homestead, it, together with the exempt property, would be insufficient for the support of the family. The court, ruling that the right to a family allowance existed independent of these conditions, said: "The right of a family to an allowance for its support is not, however, contingent upon a previous order setting apart a homestead for its use. Whether a homestead be set apart or not, section 1466 confers upon the court the power, in its discretion, to `make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family according to their circumstances during the progress of the settlement of the estate.'"
Respondents' position may again be summed up in the contention that the word "family" as used in section 1466 excludes a surviving husband. It is to be noted that this section is one of a series of sections relating to "provision for the support of the family." It is easily demonstrable *Page 675 from the text of sections 1464, 1465 and 1468 of this chapter that the word "family" includes the husband — the deceased husband in section 1464 and the surviving husband in the other two sections. Why, then, should the word be given a meaning in section 1466 that excludes him? It is easily to be supposed that circumstances may exist which entitle him to as much consideration as a widow and minor children are entitled to and we find no foundation upon which to base a legislative intent to deny him the same right accorded them. The majority opinion admits the husband is a constituent part of the family but cuts him off. I presume he should be too gallant to claim such allowance! The opinion ignores the effect of In re Garrity,supra, a case of controlling importance.
It is true that this question has not been squarely presented in any previous decision of this court, but the case of In reGarrity, supra, goes a long way toward foreshadowing the conclusion herein reached. It is also true that in Phelan v.Smith, 100 Cal. 158, 170 [34 P. 667], the court uses this language in referring to said chapter of the code, especially including said section 1466: "The term family throughout the chapter is used as synonymous with and as representing the surviving wife or husband and children, if any."
In McSwain's Estate, supra, this court considered the question of a separate allowance to be made to a minor child of deceased after an allowance had been made to the surviving wife for her support, and used these words: "Sections 1465 and 1466 relate to the same subject. The latter obviously refers to the conditions described in the former. They should be construed together, and so construed, it is obvious that the family referred to in the latter section consists of the same persons as those expressly mentioned in the former section, that is, the surviving husband and wife, if any, and the minor children, if any, of the decedent."
A similar construction of the word is found in In re Lamb,95 Cal. 397, 407, 408 [30 P. 568, 571], where the court was considering section 1474 of the Code of Civil Procedure relating to setting aside a homestead to the surviving spouse, and used this language: "It is true that the word `family' in its ordinary signification, refers to two or *Page 676 more persons, and as used in the section just referred to, will include those living under the same roof as kindred or dependents, and under one head, thus constituting a family, as that term is generally understood; but this word as used in the statute concerning probate homesteads, is not to be so restricted in its meaning as to exclude the only survivor of the family (e.g. the husband) of which deceased was a member. The object of the statute is to preserve the family home for the use and benefit of the survivor or survivors of those occupying it as such, and the right of the surviving husband or wife to retain this home for such period as the court may direct, does not depend upon the fact that there are children or others who may share in its use."
It is true, as respondent contends, that there is certain language in Estate of Steehler, 195 Cal. 386, 395 [233 P. 972], which might be considered at variance with the above quotations, but an examination of the holding there made shows that the question before us was not involved and the language relied upon was used arguendo and was, therefore, not determinative of the issue we are considering.
I am, therefore, of the opinion that under said section the surviving husband, as a constituent element of the family, is entitled to a family allowance out of the estate of his deceased wife and it is the duty of the court, sitting in probate, to make such suitable allowance to him as under the circumstances may be deemed just and proper.
I think the peremptory writ should issue.
Richards, J., concurred.