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 *407property 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 benefit and that of the child; it awarded the husband, as his sole and separate property, a certain automobile, bank funds, tax bonds, and war savings bonds. It was my view as expressed in my dissenting opinion in that case (28 Cal.2d 432) that the decree there entered, which had become final, was res ad judicata on the issues there determined, and I am still of that opinion. Here, actions for divorce were brought by both parties which resulted in a judgment denying either party a divorce but awarded the wife $250 per month for her support for one year pursuant to section 136 of the Civil Code. Unquestionably, either party could thereafter have brought another action for divorce based upon conduct of the other occurring after the rendition of the former judgment, and the court would have had jurisdiction in such an action to make such provision for the support and maintenance of either party which the pleadings and evidence warranted. Such being the law, the court here unquestionably has jurisdiction to pass upon the issue of family allowance to the widow notwithstanding the former judgment denying a divorce to either party. The effect of the prior judgment was not to determine the right of the wife to support and maintenance for all time as this issue was not litigated in the divorce action. It would seem clear that if the wife was not entitled to a divorce in the former actions, she was not entitled to permanent alimony or separate maintenance. The allowance to her of $250 per month for one year was only temporary and should not deprive the court of jurisdiction to make a subsequent adjudication of this issue.
It must be obvious that if an award of separate maintenance is made for a definite period, and becomes final, and the husband should die during such period, the award could not thereafter be increased or extended, and an award of alimony would terminate upon the husband’s death (Hilton v. McNitt, ante, p. 79 [315 P.2d 1]) with no power in a court to modify it. Such is not the situation here,' and it is my view that the prior judgment in the divorce actions and the allowance of temporary support pursuant to section 136 of the Civil Code in no way impedes the jurisdiction of the probate court to determine what if any family allowance should be *408awarded to Mrs. Fallon in the probate proceedings on her husband’s estate. In other words, the court had jurisdiction to hear all competent evidence relative to the status of the parties prior to the death of the decedent and make an award in favor of Mrs. Fallon for a family allowance if such an award was justified by the evidence. In my opinion the trial court was justified in making an award for a family allowance in favor of Mrs. Fallon and its order should, therefore, be affirmed.