Estate of FREDERICK ARTHUR FALLON, Deceased. AMERICAN TRUST COMPANY, as Special Administrator, etc., Appellant, v. MARGARET FALLON, Respondent, 49 Cal. 2d 402

SPENCE, J. 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 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 1940 and had filed reciprocal divorce actions in 1945. Both parties were denied divorces but the court awarded Mrs. Fallon support of $250 a month for one year only. This decree was affirmed on appeal. (Fallon v. Fallon, 83 Cal.

App.2d 798 [189 P.2d 766].) The husband made the ordered payments for the one year and then stopped. Some seven years elapsed before the husband’s death, during which time Mrs. Fallon moved to British Columbia and received no further payments from him. On December 22, 1955, the court granted the widow a family allowance of $1,000 per month. On December 29, 1955, the court, on the trust company’s petition, appointed it special administrator of the estate. On January 4, 1956, the court filed a second order identical to its previous order granting the widow the $1,000 monthly family allowance.

Thereafter the special administrator filed its petition seeking vacation of the orders granting the family allowance. It alleged that because of the previous divorce proceedings (Fallon v. Fallon, supra, 83 Cal.App.2d 798) the widow was not entitled to a family allowance. It also alleged that, as guardian of the deceased’s estate, it had filed an inventory on December 6,1955, showing assets of some $337,000 and income for 1955 of less than $10,000. After a hearing this petition was denied.

The right of a wife to a family allowance is conditioned upon her right to support at the time of her husband’s death. (Estate of Brooks, 28 Cal.2d 748 [171 P.2d 724].) Ordinarily the wife establishes a prima facie case for an allowance by showing that the marriage relation continued until the time of her husband’s death. She is not required to allege and prove that there were no circumstances by which she lost this right to support, which is ordinarily inherent in her position as a wife.

Nor is the right ordinarily lost merely because the spouses were living apart at the time that the husband died or because the wife had been supporting herself without financial aid from the husband. (Estate of Coons, 107 Cal.App.2d 531, 536 [237 P.2d 291]; see 34 A.L.R.2d 1056.) The effect of the award for the wife’s support for a limited period, which expired before the husband’s death, however, is an additional circumstance which must be considered here. In Estate of Brooks, supra, 28 Cal.2d 748, the wife had obtained an interlocutory decree of divorce which made no provision for her support.

While the marriage continues until the final decree, an “interlocutory judgment of divorce is ... so far as it determines the rights of the parties, a contract between them. . . . Until that contract is in some manner changed, either in the action or in some independent proceeding, or by a reconciliation, her right to support is suspended.” (London G. & A. Co. v. Industrial Acc.

Com., 181 Cal. 460, 465-467 [184 P. 864].) This court in the Brooks case noted that the manifest purpose of the family allowance is “to continue during the settlement of the estate, the support that the wife was previously receiving or was at least entitled to receive.” (28 Cal.2d at p. 755.) Since the wife there was not entitled to support under the divorce decree, the order granting a widow’s allowance was reversed. A situation more similar to the present case was involved in Monroe v. Superior Court, 28 Cal.2d 427 [170 P.2d 473], where the wife had been granted separate maintenance for only a limited period.

After that period expired, she sought a further allowance for her support, “alleging that the circumstances upon which the decree was based had materially changed.” (28 Cal.2d at p. 428.) This court held that additional support might be granted, although jurisdiction to do so had not been reserved in the original decree, if sufficiently changed circumstances were shown.

Relief could be granted since a “separate maintenance decree does not end the marriage” nor “the obligation to support” arising from it, but “only regulates the extent of that support.” (28 Cal.2d at p. 429.) While the wife here, under the terms of the support decree, was not receiving support payments from her husband at the time of his death, she could have sought modification of that decree during his lifetime if she could have shown sufficiently changed circumstances occurring before the death. (Monroe v. Superior Court, supra, 28 Cal.2d 427; O’Toole v.

O’Toole, 215 Cal. 441 [10 P.2d 461].) His death should not prevent her from thereafter seeking a family allowance based on changed circumstances occurring before his demise (see In re Nowell, 99 F. 931) nor should she be penalized for not seeking a modification of the decree during his last illness.

If the probate court finds, upon competent evidence, that circumstances had changed sufficiently so that the support decree could have been modified during the husband’s lifetime to provide further support and that she was therefore entitled to support at the time of the husband’s death, that court could properly order a family allowance for the widow after his death. The record here, however, reveals no evidence of such changed circumstances occurring before the death of the husband.

Nor can we agree with the widow that the fact that her husband permitted her to keep a flat in a building which he owned and to store personal effects there constituted an agreement on his part to support her while they lived apart. This act, as well as the provision in his will bequeathing his widow $2,500, must be regarded simply as evidence of his continued kindly disposition toward her despite their marital differences.

We therefore conclude that in the absence of evidence upon which the probate court could have found that the widow was entitled by reason of changed circumstances to support from her husband at the time of his death there was no basis for the granting of the family allowance. The orders granting the family allowance are reversed. The appeal from the order denying the petition to vacate said orders for family allowance is dismissed. Appellant shall recover costs on appeal. Gibson, C. J., Traynor, J., and Schauer, J., concurred. McComb, J., concurred in the judgment.