The record-union., 1899-04-22

HeW6Q mortgage fDelIlS dpOul Po,coV'
And the said Ora also hereby trans
fers and conveys to said widow her
right, title and interest in and to that
certain real property in the said coun-
ty of Sacramento, designated in said
inventory as the 'Brannan Island farm,
containing 920 acres, and being more
particularly described in said inventory
as Swamp Land Surveys Nos. 346, 900
and 656 of said county of Sacramento,
reference to which inventory for said
description is hereby made.
%. Proper orders and DEGREES shall
be entered in said estate distributing all
the property thereof to the undersigned
as provided in the said will subject to
the notifications and changes above
set out
The undersigned hereby agree to the
foregoing as a settlement of their con-
f1icting interests as to the property or
said estate, and hereby authorize and
empower w. F. George to prepare the
necessary papers and take the neces-
sary steps in said estate to give effect
thereto
Dated, June 16, 1S9S.
''ALMINA ADELINE RUNYON.
ORA RUNYON.
Witness: ]. H Liggett."
On the 10Th day of October, 1897, on
the petitjon of the surviving widow and
the consent in writing of Mrs. Buck
man, the residuary legatee, the court
made an order directing the payment to
| said widow of the sum of $3.50 per
month as a, family allowance.
The adversary petitions above re-
ferred to present to the court for de-
termination three questions:
First-Did the agreement between the
parties made on June 10, 1898, termi-
| nate the right of Mrs. Runyon to a
family allowance, and should the same
cease from and after that date;
Second-Should the rents and profits
of the real estate be distributed to the
respective devisees thereof, or do such
rents and profits belong to the estate
as general assets and should they there
fore be distributed to Mrs. Buckman,
the residuary legatee?
| Thirds a family allowance an eX-
pense of administration and should all
expenses of administration be borne by
and paid out of the general assets of
the estate, which is tantamount to the
same being paid. by the residuary lega-
tee, or should the same be apportioned
between said residuary legatee and the
surviving widow.
These questions will be disposed of in
the order above enumerated
First: Did the agreement between
the parties made on June 16, 1898, ter
inmate the right of Mrs. Runyon to a
family allowance, and should the same
j r.
1t appears that at the time of the
making of the aforesaid agreement be-
tween Mrs. Runyon and Mrs. Buck
man, the executors had paid all of the
cash legacies provided for by the will,
and that at that time the estate was
practically in a condition to be closed
The first paragraph of the agreement
states that said agreement should be a
basis of settlement as to
their property rights in and to the es-
tate of said deceased and the last
paragraph states that they "agree to
the foregoing as settlement of their
conflicting interests as to the property
of said estate The contract is clearly
drawn and distinctly enumerates that
Mrs. RunyOn ratifies and approves the
will; that she relinQuishes all claim to
a homestead, and also certain rights in
and to that property known as the
home farm. The contract then provides
that Mrs. Buckman lin consideration
of the above" assigned certain other
property to Mrs. Runyon. Nowhere in
said agreement is any mention made OF
the family allowance, or of the intent
Of the parties concerning the same.
Mrs. Buckman contends that the right
to the family allowance was prop
erty right and that the same was ad-
justed and settled by said agreement
because said agreement was a settle
ment and adjustment of the property
rights of the parties in and to said es-
| tate.
Under the decision of the Supreme
Court of this State, in the matter o1
the estate of Lux, ia Cal. 81. after the
court has ordered the payment of {
family allowance to the widow, the
right to such becomes a property
right" Mrs. Runyon insists, however
that said agreement settled and deter
mined their conflicting interests as tc
the property of said estate" and thai
there is no conflict between the parties
as to the widows right to the family
allowance, that having been ordered
paid by the court upon the consent o1
Mrs. Buckman.
1 think the apparent conflict in tht
language of the contract contained il
the first and last paragraphs thereof i:
overcome when compared with the Ian
guage of said contract employed
in the fourth paragraph there
of, wherein it is stated tha
in consideration of the above
ACCOMPLISHMENTS and transfers by Mrs
Runyon, Mrs. Buckman transfers to hel
certain property; that is TO say, The
contract specifically states that which
each party parts with or obtains under
the contract.
Section 1856 of the Civil Code pro
vides: "All things that in law or usag,
are considered as Incidental to con
tract or as necessary to carry it int
effect are implied therefrom, unles:
some of them are expressly mentioned
therein, when all other things Of tn,
same class are deemed to be excluded.
The parties to this contract having ex
| pressly stated therein the rights re
linquished and the rights acquired
hereunder, under the rule just quoted
'All others are deemed to be excluded
therefrom
4 | therefore conclude that the famil,
allowance was not affected by the con
tract in question
Second-This brings us to the consid
Grafton of the second proposition, viz.
Should the rents and profits of the rea
estate be distributed to the respective
devisees thereof, or do such rents ant
profits belong to the estate as genera
assets, and should therefore be dis