dissenting.
I respectfully dissent from the majority holding in point of error number three. Appellants urge that the trial court erred in granting Marian Churchill’s application for family allowance because such an allowance is disallowed by statute when a surviving spouse has adequate separate property to provide for her maintenance, and because there was no evidence, or insufficient evidence, to determine whether Marian’s separate property existing at the time of her husband’s death was inadequate to provide for her maintenance. The majority holds the evidence is legally and factually sufficient to show appellee’s separate property was inadequate for her maintenance.
It is my opinion that the probate court abused its discretion by granting the family allowance to Marian after she gave away her separate property following her husband’s death. In the interest of justice and fair play, appellee should not be allowed to bolster her widow’s allowance by being permitted to give away property that could have contributed to her support and maintenance. The property had a tax-appraisal value of $51,000 at the time of Richard Churchill’s death. If sold, this income might have reduced the family allowance taken from the estate of her deceased husband.
As the majority points out, section 288 of the Texas Probate Code provides that the court is not to make an allowance for the surviving spouse when the survivor has separate property adequate for his or her maintenance. Additionally, if appellee did not want the benefit and use of this property, it should have been sold. Accordingly, I dissent to the court’s ruling on point of error three.