No. 12426 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

INTHE MATTER OF THE ESTATE OF PETER B. GLEIN, Deceased.

Appeal from: District Court of theFifteenth JudicialDistrict, Honorable M. James Sorte, Judge presiding, Counsel of Record: ForAppellant: Anderson, Symmes, Forbes, Peete and Brown, Billings,

Montana Rockwood Brown, 

### Jr

# . argued, Billings, Montana For Respondent: Loren J. 0'~oole argued, Plentywood, Montana

Submitted: June 19, 1973 Decided : 

## JUL2

## 61973 Filed:

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### 2

## 61973Mr. Justice Gene 

### B. Daly delivered the Opinion of the Court. This appealwas brought on behalf of Glenna B. Glein,

an incompetent,by and through her guardian,Martha Klaus, from an order of the district court of Sheridan County denying a petition for renunciation of will, and denying a petition for

a widow's or family allowance in connectionwith the probate of the estate of Peter 

### B. Glein, deceased. Peter 

### B. Glein, a resident of Sheridan County, Montana, died onMarch 

### 7, 1969. He was survived by his wife Glenna B. Glein, then aged 83,and a natural son from a previous marriage, Gerald Glein. Mrs. Glein has two daughters from a previous marriage, Mrs. Martha Klaus and Mrs. Harriet Jordan. Decedent Glein's will, under which Gerald Glein was appointed executor,

was admitted to probate on April 8, 1969. Within threeyears preceding Peter Glein's death,Mrs. Glein was deeded the family home and Gerald Glein was deeded four lots in Ward County,North Dakota. The Glein's joint checking account at the time of Peter Glein's deathwas $4,877.57. The appraised value of the estate, including the family home, North Dakota lots,and checking account balance was $56,983.24. The principal asset of the estate was a 980 acre farm in SheridanCounty,Montana. Under the will all personal property was left to Mrs. Glein and all realproperty was left to Gerald Glein as remainderman. Gerald Glein, as executor hasmanaged the farm since the death of his father without compensation. The actual farm operation isperformed by one Howard Clark under a lease agreement. Clark had operated the farm under a lease for Peter Glein for several years prior to his death. A financial statement of income and expense was furnished to the district court and to Mrs. Glein's guardian. The records indicate that all income less actualprobate costs and expense has been paid to Mrs. Glein asfollows: Farm income 1969------------------ $4,603.25 1970------------------$2,836.55 1971------------------$2,827.21 1972------------------$6,423.15.
In addition,Mrs. Glein receives a monthly income of $154.84 from social security and $75 from rental of her home. InMay 1969 Glenna Gleinwent to Denver,Colorado, the home of her daughter Martha Klaus and John Klaus, husband of Martha. Under proceedings in the Colorado court,Mrs. Glein

was adjudged incompetent and Mrs. Klaus was appointed guardian

onMay 24, 1969. Mrs. Glein isbeing cared for in a nursing home in Denver. In December 1971Mrs. Klaus, as guardian of Mrs. Glein, filed a petition for renunciation of Peter Glein'swill together with a petition requesting an allowance of $900per month to be paid to the widow and to be applied retroactively in the amount of $650 per month. By order dated November 14, 1972,the district court denied both petitions. Appellant appeals from that order and judgment and from a denial of her request for rehearing. During oral argument before this Court, appellantwithdrew her assignment of error concerning the denial of her petition for renunciationof Peter Glein'swill. The remaining issue before this Court iswhether the district court erred in denying the petition for a widow's allowance. Montana statutes provide for two separate types of family allowance. Section 91-2401,R.C.M. 1947, establishes what could be termed a preliminary or temporary allowance which is applicable "until letters are granted and the estate inventory is returned." The record indicates that inventory and appraisal in the Peter Glein estate was filed onApril 16, 1971. Section 91-2403,R.C.M. 1947,establishes what could be termed an interim or semi-permanent allowance and is applicable

### "during the progress of the settlement of the estate." See: 3 Bancroft's Probate Practice 2d Ed. B 730. The record indicates that on November 14, 1972,the date of the district court's denial of the petitions, the Glein estate had been in probate for over two and one-half years and, though not concluded,was ready for closing. Provisionsof Montana's family allowance statutes have been construed liberally in favor of surviving widows, particularly if it appears she lacks themeans essential for her support. In re Hall's Estate, 124Mont. 355, 224 P.2d 183. The nature of the claim created under Montana's family allowance statuteswas explained in In re Oppenheimer's Estate, 73 Mont. 560, 573, 283 

### P. 599. "Thewidow's allowance is usually referred to as a preferred claim against the estate. In Hale v. Burford, 73 Colo. 197, 214 Pac. 543, it is said: 'The widow's allowance

## * * * is not a debt of, or an interest in, the estate, but a preferred claim, in the nature of costs of administration.' And in In re James' Estate, 38 S.D. 107, 160N.W. 525, the supreme court of South Dakota used this language:

'The [widow's] allowance

## * 

## * * is not in the nature of an interest in property, it is merely a preferred claim against the estate of a decedent which may or may not be available according to the circumstances.'" Determination concerning the granting and the amount of family allowance ismade by theprobate court in the exercise of its sound discretion on a case by case basis upon a consideration of all competentand relevant evidence before it. That court's determinationwill not be overturned unless there is a showing of manifest abuse of that discretion. The factsproper for the probate court'S in the instant casewere: (1) the widow's particular living and maintenance needs during the period of probate, (2) the assets she has received outright from the estate and thosepresently available to her, (3) the amount of income she receives from theestate, (4)the amount of the widow's separate estate and income from other sources (Anno. 90ALR2d 6871, (5)the length of time the estate has continued in probate before the petition for allowancewas brought (Inre Trepp'sEstate, 71Mont. 154, 227 P. 1005), and (6)the effect that a particular amount of allowancewill have upon other devises and bequestsmade under the will (Inre Dougherty's Estate, 34 Mont. 336, 86 P. 38). The probate court found the widow had not been a public charge,had assets to pay for her care, and was being provided with sufficient income for her care. Further, therewas no showing that any family allowance was needed and the estate



### was in condition to be closed as of November 14, 1972,- the date of the probate court's judgment and decree. We find nothing in the record that would indicate an abuse of discretionby the probate court. The judgment is affirmed.

Justice

ief Justice