
    [S. F. No. 2301.
    Department One.
    December 18, 1900.]
    In the Matter of the Estate of THOMAS BELL, Deceased. LOUISA J. THOMPSON et al., Appellants, v. GEORGE STAACKE, Executor, etc., et al., Respondents. BANK OF CALIFORNIA, Appellant, v. GEORGE STAACKE, Executor, etc., et al., Respondents.
    Estates of Deceased Persons—Orders Modifying Family Allowance—Undecided Question as to Original Order—New Orders not Void.—Without deciding the question whether an order making a family allowance until further order of the court became void ipso faoto upon the return of the inventory, or expired by limitation one year from its date by reason of the insolvency of the estate, an order, made more than three years from the date of the original allowance, modifying it, and a subsequent order of modification thereof, are not void upon their face, and may be considered as new and independent orders, within the jurisdiction of the court.
    Id.—Solvency of Estate—Bes Adjudicata—Payments by Executrix —Collateral Attack by Creditors.—Each of such orders constitutes an adjudication that the estate was solvent when it was made; and where no direct attack was made upon such adjudication by appeal or motion to set it aside, it cannot he collaterally attacked by the creditors by impeaching payments made in pursuance thereof by the executor, on the ground that the, estate was then insolvent, and that the court lacked jurisdiction to make the order.
    APPEAL from an order of the Superior Court of the City and County of San Francisco settling an executor’s account. J. V. Coffey, Judge.
    
      The facts are stated in. the opinion of the court.
    J. F. Leicester, for Appellants.
    A. N. Drown, for Appellant Louisa J. Thompson.
    James M. Allen, for Appellant Bank of California.
    Garret W. McEnerney, William B. Bosley, and John S. Drum, for Appellants Mary Kelly, Ellen Kelly, and Kate Blaxland.
    Maurice V. Samuels, for Appellants California Safe Deposit and Trust Company and D. Samuels.
    Naphtaly, Freidenrich & Ackerman, for Appellant Roos Brothers.
    Sidney V. Smith, for Respondent George Staacke, Executor.
    T. Z. Blakeman, for Respondent Theresa Bell.
    Brewton A. Hayne, for Respondents Minor Children.
   GAROUTTE, J.

Thomas Bell died testate in the city and county of San Francisco. Subsequent to the issuance of letters testamentary, and prior to the return of the inventory and appraisement, the court made an order for a family allowance of two thousand dollars per month, this allowance to continue until the further order of the court. The administration of the estate proceeded on its course, and nearly three years later two creditors filed a petition asking that the order for a family allowance previously made be modified. Theresa Bell, the widow of Thomas Bell, deceased, contested the application, and upon the hearing the original order was modified to -the extent that the allowance was fixed at fifteen hundred dollars per month, commencing at that date. The administration still continuing, about three years later the order of family allowance, at the instance of the same creditors, after a hearing and contest upon the part of the widow, was again modified, being fixed upon that hearing at the amount of one hundred dollars per month. Under these various orders of family allowance more than eighty thousand dollars have been paid by the executors to the widow, and much the greater portion of this amount has been allowed and settled in the accounts rendered by the executors to the court. But upon the hearing of the last account rendered by the sole executor, Staacke, creditors appeared and objected to those items of the account consisting of various sums of money paid by the executor to the widow under the two later orders of family allowance. And these creditors based their objections upon the ground that the two aforesaid orders were void by reason of the fact that the estate was insolvent when they were made. At the hearing of the account they offered evidence tending to show the insolvency of the estate at that time, and this evidence was rejected. The sums paid to the widow to which objections were made were allowed by the court, and this appeal is taken by the creditors from the order settling the account.

This court will not concern itself as to whether or not the original order for a family allowance became void ipso facto either upon the return of the inventory, or expired by mere lapse of time upon the expiration of one year from its date by reason of insolvency coming upon the estate. The moneys here involved are moneys expended under the subsequent orders, and our attention will be directed to those orders alone. For, if the original order was void at the time the later orders were made, and therefore not susceptible of modification, then the second order made was a new and independent order, and must look to itself for sufficient strength to stand alone.

Had the court power to make the second order? Or, bringing the question directly home, upon the hearing of an account of the executor may the creditors object to the allowance of moneys paid out under this order? We are entirely satisfied the creditors cannot successfully support the contention made. The order is not void upon its face, and it is too late upon the hearing of the account to show that the estate was insolvent when the order was made, and that therefore the court lacked jurisdiction to make it. Such a holding would place executors and administrators in a sorry plight as would be fully exemplified in this case, if these items for money paid were rejected from the account. Conceding the court had no power to make the order if the estate was insolvent, still the making of the order in itself is an adjudication that the estate was not insolvent. In principle, this identical question is decided by the case of In re Welch, 106 Cal. 430, where the court, in speaking of an order of family allowance, said: “It is asserted that this order is invalid for lack of a finding that the property exempt from execution and already set apart to the support of the widow was insufficient for the purpose.....The fact that the court, after setting aside exempt property, made its order for family allowance, involved of necessity the decision that the amount originally set apart was insufficient. The order for additional allowance in itself was a declaration of that insufficiency.”

The time for appeal from the order has long gone by, and the attack here made is essentially a collateral attack. The making of the order necessarily involved a determination that the estate was solvent, and it is now proposed to show upon this collateral attack that the finding of the court as to the solvency of the estate is untrue. This cannot be done. These appellants had ample opportunity to protect themselves if the estate was insolvent by directly attacking the order. If they had no notice of the hearing upon which the order was made, then, clearly, they had the right subsequently to ask the court to set it aside. Indeed, section 1466 of the Code of Civil Procedure contains no provision for notice to creditors before making an order for a family' allowance. (Leach v. Pierce, 93 Cal. 619.) By the aforesaid section the court only has power to make an order of allowance when the amount already set apart under sections 1464 and 1465 is insufficient for the support of the widow; and appellants here, with equal legal propriety, could contest this account upon the ground that when the order was made, the court had previously set apart an amount sufficient for the support of the widow, and that therefore the order made was void. Yet the case of In re Welch, supra, holds directly to the contrary of that contention. Again, by section 1466 the court “may make such reasonable allowance out of the estate as shall be necessary for the maintenance of the family.” It might with equal legal propriety be contended that the order of allowance was void, or at least void pro tanto, upon the ground that it was too large and that the amount was not necessary for the maintenance of the family. Of course, the validity of an order of allowance cannot be attacked collaterally upon these grounds. As far as the validity of any particular order of allowance is concerned, it must be held that these matters were considered and determined when the order was made, and were determined in a way that supports the validity of the order made. The same rule necessarily applies upon the question of the insolvency of the estate, and it must be held that when the court made the order or orders involved it decided that the estate was solvent. It is said in Burris v. Kennedy, 108 Cal. 336: “The same presumption must now attach to decrees in probate proceedings upon collateral attack as to judgments in cases at common law or in equity.”

There are two separate appeals in this ease brought here upon a single record. For the reasons given the order settling the account of the executor, from which the appeals are taken, is affirmed as to both appeals.

Van Dyke, J., and McFarland, J., concurred.

Hearing in Bank denied.

Beatty, C. J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 16th of January, 1901:

BEATTY, C. J., dissenting.

I dissent from the order of the court denying a rehearing.

If it is not true that “the moneys here involved are moneys expended under the subsequent orders,” as stated in the opinion of the court, then this appeal cannot be properly disposed of without deciding the question whether the first order of allowance ceased to he operative on the filing of the inventory, or when the estate became insolvent. I think it clear that at least forty-seven dollars and fifty cents has been allowed in this account for support of family in excess of the total amount payable under the last two orders, and unless this sum is covered by the maxim de minimis, the appellants were entitled to a decision of the question presented by their appeal. In my opinion, even so small a sum as forty-seven dollars and fifty cents is not within, the rule de minimis, especially when it appears that the future proceedings in the settlement of this estate will he embarrassed by the question raised, hut not decided, upon this appeal.  