Hoffman's Estate, In re

• Decision Date: 07 March 1963
• Citation: 29 Cal.Rptr. 60,213 Cal.App.2d 635
• Parties: In the Matter of the ESTATE of Samuel HOFFMAN, Deceased. Samuel ZEMAN, Executor of the Last Will and Testament of Samuel Hoffman, deceased, Petitioner and Respondent, v. Rose HOFFMAN, widow of the late Samuel Hoffman, deceased, Objector and Appellant. Civ. 20646.
• Court: California Court of Appeals Court of Appeals

Page 60

29 Cal.Rptr. 60

213 Cal.App.2d 635

In the Matter of the ESTATE of Samuel HOFFMAN, Deceased.

Samuel ZEMAN, Executor of the Last Will and Testament of Samuel Hoffman, deceased, Petitioner and Respondent, v. Rose HOFFMAN, widow of the late Samuel Hoffman, deceased, Objector and Appellant.

Civ. 20646.

District Court of Appeal, First District, Division 1, California.

March 7, 1963.

Rehearing Denied April 1, 1963.

Hearing Denied May 1, 1963.

Sidney Rudy and Richard N. Rapoport, San Francisco, for appellant.

Raymond H. Levy, Truman S. Waterman, Milton H. Cohn, Neil J. Christal, San Francisco, for respondent.

MOLINARI, Justice.

This is an appeal from an order of the probate court setting aside an order granting appellant a family allowance from the estate of her deceased husband. The respondent has moved to dismiss the appeal on the ground that the appellant has rendered the appeal moot by reason of the filing by her of a second petition for family allowance.

The Record

On May 22, 1961, appellant, Rose Hoffman, presented and filed a verified petition for family allowance before inventory requesting a family allowance in the amount of $350 per month commencing from the date of the death of her husband on March 24, 1961. Said petition alleged that the petitioner was the only surviving person entitled to a family allowance; that she believed that the estate was of the approximate value of $30,000; and that the sum of $350 would be a reasonable allowance for her maintenance. An ex parte order was made on the same day ordering the payment to Rose Hoffman of a family allowance in the sum of $350 per month beginning March 24, 1961.

On June 7, 1961, and prior to the filing of the inventory, the respondent executor filed a motion to set aside the aforesaid order for family allowance. On June 13, 1961, the probate court ordered that said motion be referred to the Probate Commissioner. Thereafter, the Probate Commissioner proceeded to hear said motion on August 2, 1961, in his capacity of a referee. The basis for the said motion was that the petition for family allowance did not state all of the pertinent facts upon which a determination for a proper family allowance should be made. The motion alleged that the said Rose Hoffman was not in need of a family allowance; and alleged, further, among other things, that the said Rose Hoffman was possessed of properties asserted to be of a value of $250,000 and that she had reported an income of $14,106.75 to the United States Department of Internal Revenue. (The year was not specified.) The said motion also recited that an inventory and appraisement had not been filed because said Rose Hoffman had refused and neglected to furnish him certain records and indices of assets necessary for such preparation until May 17, 1961, but that said inventory was then in the process of preparation. At the hearing before the said referee evidence was adduced that Rose Hoffman had given $12,000, in notes and stocks, and approximately $40,000, in realty, to her sons during the previous year. Testimony was also adduced that in prior years she had transferred other realty to her sons. She also testified that she was receiving an income amounting to approximately $800 gross per month, leaving a net after taxes and expenses of $450 to $500 per month, from some of the property transferred to her sons and from a parcel of real property which she had sold to a third party. An inventory and appraisement was filed by the executor on the day following the hearing, i. e., on August 3, 1961.

The referee made his report to the probate court on November 17, 1961. He therein stated that since the order for family allowance the estate of the decedent had been appraised for the sum of $31,966.17; that a full disclosure of the value of the estate and of the independent income of the widow had not been made to the court at the time of the ex parte order; and he was of the opinion that if the court had been possessed of all said information it would not have made the order for family allowance as it then stood. The referee recommended that the order for family allowance be vacated, effective the day on which the motion to vacate was filed, i. e., on June 7, 1961. The referee's report further recommended that the order be made without prejudice to the widow to renew her application for family allowance provided that the same be on notice. A motion for confirmation of the report of the referee, with an amendment making the order vacating effective as to the date of the granting of the allowance, was then made by the respondent executor. The appellant excepted to the report of the referee on the ground that notwithstanding the evidence adduced before the referee she was entitled to the family allowance as ordered, and on the further ground that there was no showing of inadvertence, mistake or fraud. On January 11, 1962, the probate court made its order confirming the report of the referee without amendment and overruling the exceptions.

On January 19, 1962, the appellant filed her notice of appeal from the order confirming the report of the referee. Thereafter, the appellant filed and presented a petition for family allowance after inventory. This petition was denied on April 2, 1962, on the sole ground of the pending appeal.

The Motion to Dismiss

The respondent contends that the appeal has been rendered moot on the ground that by filing the second petition for family allowance the appellant waived all rights claimed under the first family allowance. No authority has been cited or furnished in support of this contention. The respondent merely makes the assertion that by the filing of a second petition for family allowance the appellant has accepted the validity of the orders which limited and terminated the family allowance. It is the duty of counsel to support his claim by argument and citation of authority. We are not obliged to perform the duty resting on counsel. (People v. Schlosser, 99 Cal.App. 593, 594, 278 P. 898; Greenstone v. Claretian Theological Seminary, 173 Cal.App.2d 21, 35, 343 P.2d 161; Givens v. Southern Pacific Co., 194 Cal.App.2d 39, 48, 14 Cal.Rptr. 736; see Rule 15, Cal.Rules of Court.) The respondent is apparently alluding to the rule that a party is not entitled to accept the benefits of a judgment and then appeal from it. (See Schubert v. Reich, 36 Cal.2d 298, 223 P.2d 242.) But even this rule is subject to the qualification that in order to defeat the appeal it must be shown that the appellant has received and accepted benefits from the judgment to which he would not be entitled in the event of a reversal of the judgment. (Browning v. Browning, 208 Cal. 518, 525, 282 P. 503; Mears v. Mears, 180 Cal.App.2d 484, 509, 4 Cal.Rptr. 618.) Suffice it to say, the appellant in the instant case has not received or accepted any benefits from the order appealed from. The probate court refused to entertain the second application, apparently for lack of jurisdiction because of the pending appeal. ¹

The Propriety of the Order Vacating Family Allowance

Probate Code, section 1240 provides that an appeal may be taken from an order 'granting or modifying a family allowance; * * *.' The report of the referee in the instant case, as confirmed by the court, recites that the 'order directing payment of family allowance be vacated and set aside.' The first question to be disposed of, then, is whether the order is appealable. The subject order purports to annul the original order in its entirety. To vacate or set aside an order is to determine that it was improperly or illegally issued and results in the destruction of the order in its entirety. (Seymour Manufacturing Company v. Tarnopol, 20 Misc.2d 210, 187 N.Y.S.2d 494, 497; Krummel v. Hintz, 222 S.W.2d 574, 578 (Mo.App.); Distillers Factors Corp. v. Country Distillers Products, Sup., 81 N.Y.S.2d 857, 858; and see Cowdery v. London, etc., Bank, 139 Cal. 298, 303, 73 P. 196.) A reading of the order discloses, however, that it does not purport to annul or declare void the order from the time of its issuance, but declares, in effect, that the order for family allowance is terminated as of June 7, 1961, the day on which the motion to vacate was made. Accordingly, the subject order acknowledges the validity of the original order for family allowance when it acquiesces in the allowance for the period from the date of the death of the decedent on March 24, 1961, to the said date of termination on June 7, 1961. An order retroactively terminating a family allowance has been held to be an appealable order. (In re Estate of Chapman, 158 Cal. 740, 742, 112 [213 Cal.App.2d 641] P. 302.) We are satisfied, moreover, as we shall hereafter point out, that the essence of the order in question was to modify the order for family allowance, and hence was appealable.

The report of the referee recites that a widow is entitled to a family allowance as a matter of right and notwithstanding that she has independent income, but opines that the court would not have granted the family allowance in the first instance had it been apprised of the evidence which was received and heard by him. This opinion appears to be the rationale of the referee's conclusion that an order for family allowance made ex parte may be vacated pursuant to Code of Civil Procedure, section 937 ² upon a showing of mistake, inadvertence or fraud. However, in making his recommendation that the order for family allowance be vacated as of the date the motion to vacate was filed, the referee, in effect, recommends a modification of the order to the extent of terminating the allowance as of that date. ³ In adopting this recommendation, the probate court reaffirmed the validity of the original order and permitted that portion which covered the period from March 24, 1961, to June 7, 1961, to remain in effect. A modification of a previous order may, in a proper case, eliminate a portion of the previous...