The San Francisco call., 1896-01-23
THE LUX CASE SUBMITTED
Arguments of Both Sides Over
the Widows Allowance for
Support.
A Plea That Death Does Not Change
Pending Judgment Nor Vacate
an Order.

The argument in the matter of the estate
of Charles Lux, deceased, was made before
the Supreme Court in bank yesterday and
the case submitted. 1t was upon the ap-
peal of the next of kin, or the German
branch of the Lux family, as they are COM
monty known, from an order of family
allowance made to the widow of Charles
Lux, deceased.
When Lux died on March Is, 1887, by the
terms of his will his wife, Miranda w.
Lux, was given the use and rents of the
Burr Burr Rancho in San Mateo County,
which brought her $27 900 in income and
$11O000 from its sale before her death.
The will also gave her $500 a month. At
his request she permitted her share of the
great Miller & Lux property which she
inherited from her husband to remain with
the common stock.
On May 4, 1887, the San Mateo Superior
Court made an order upon her application
granting her an allowance of $500 per
month for her support from the date of her
husbands death to August 80, 1883, the
date OF the filing of the inventory. March
%, 1892, she applied for an allowance out
OF the estate during the process of its set
tlement OF $500 pei month. The next of
kin of the deviSees under his will ned an
objection to the order applied for, and the
court granted her a monthly allowance of
$1,000 Upon her appeal the Supreme Court
reversed this order, and the case was re-
manded to the lower court with instruc-
tlons to make an order granting her a rea-
sonable allowance pending the settlement
Of the estate. The Superior Court March
%, 1894, again allowed her the $2500 to date
from August 30, 1888 The estate, which
was appraised at the death of Charles Lux
at 81 4,000,O 600, has grown to the present value
OF $40, 100000, 80 per cent OF which is COM
munity property.
The appellants, represented by D. M.
Delmas and J. II. Campbell, hold that
Mrs. Lux had no claim to an allowance at
the date of the order appealed from, al
legiQg that she had received from the es-
tate abundant means OF support, com pris-
ing the $4,000 from the Buri Burr rancho
sale, 1900 in rents and S45, 900 already
paid her in monthly allowances. They
proved that these means of support were
not exhausted, but remained in her hands,
and that she being childless and wealthy,
was not in need of further support.
The respondents, represented by CARRIER,
Boalt d Bishop, answered that the Su-
preme Court in its instructions to the
lower court had ordered that the allow
ance be made without regard to the fact
that the widow had separate property
sufficient for her support; also that her
income was not sufficient for her support
in the manner in which she had been
accustomed to live during the life OF ber
husband.
Mrs. Lux died September 20, 1894, after
the appeal was taken, and appellants
counsel contended that her death extin-
guished her claim to the allowance. This
was met by the plea that the claim having
passed into Judgment it did not die with
her person, even though an appeal
from such judgment was pending at the
time. decision was noted in the Ohio
Supreme Court which sustained this plea.
and other authorities were quoted which
held the ground that an appeal from an
order or judgment does not vacate it.
The order here appealed from is in sub
stance and effect judgment for money
payable in installments. In their argu-
ments the attorneys for respondents main
tanned that after a judgment or order
therefor by the Probate Court it becomes
an absolute vested property right, and as
the Judgment or order is not vacated by
an appeal therefrom the death of the
widow or other claimant pending such ap-
peal cannot extinguish the claim. Even
if the widow should die before Judgment,
bat after decision upon the facts giving
the right to the allowance, Judgment
might still be rendered upon that decision.
The case was submitted.