No. 12426 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

IN THE MATTER OF THE ESTATE OF 

PETER B. GLEIN, Deceased. 

Appeal from: District Court of the Fifteenth Judicial District, 

Honorable M. James Sorte, Judge presiding, 

Counsel of Record: 

For Appellant : 

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 : JUL 2 6 1973 

Filed: JWL 2 6 1973 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This appeal was 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 connection with the probate of 

the estate of Peter B. Glein, deceased. 

Peter B. Glein, a resident of Sheridan County, Montana, 

died on March 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 three years 

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 death was $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 Sheridan County, Montana. 

Under the will all personal property was left to Mrs. 

Glein and all real property was left to Gerald Glein as remainderman. 

Gerald Glein, as executor has managed the farm since 

the death of his father without compensation. The actual farm 

operation is performed 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 

actual probate costs and expense has been paid to Mrs. Glein as 
follows: 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. 

In May 1969 Glenna Glein went 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 

on May 24, 1969. Mrs. Glein is being cared for in a nursing 

home in Denver. 

In December 1971 Mrs. Klaus, as guardian of Mrs. Glein, 

filed a petition for renunciation of Peter Glein's will together 

with a petition requesting an allowance of $900 per 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, appellant withdrew her assignment of error concerning the denial of her petition for renunciation of Peter Glein's will. The remaining issue 

before this Court is whether 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 on April 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. 

Provisions of Montana's family allowance statutes have 

been construed liberally in favor of surviving widows, particularly if it appears she lacks the means essential for her 

support. In re Hall's Estate, 124 Mont. 355, 224 P.2d 183. 

The nature of the claim created under Montana's family 

allowance statutes was explained in In re Oppenheimer's Estate, 

73 Mont. 560, 573, 283 P. 599. 

"The widow'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, 160 N.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 is made by the probate court in the exercise of 

its sound discretion on a case by case basis upon a consideration 

of all competent and relevant evidence before it. That court's 

determination will not be overturned unless there is a showing 

of manifest abuse of that discretion. 

The facts proper for the probate court 'S 

in the instant case were: (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 those presently 

available to her, (3) the amount of income she receives from the 
estate, (4) the amount of the widow's separate estate and income from other sources (Anno. 90 ALR2d 6871, (5) the length 

of time the estate has continued in probate before the petition 

for allowance was brought (In re Trepp's Estate, 71 Mont. 154, 

227 P. 1005), and (6) the effect that a particular amount of 

allowance will have upon other devises and bequests made under 

the will (In re 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, there was 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 discretion by the probate court. 

The judgment is affirmed. 

Justice 

ief Justice