and apart until the time of his death, such separation is a bar to the widow's right to an allowance. And all authorities agree that a wife may, for a valid consideration and by express provisions in an antenuptial agreement or a separation agreement entered into between herself and her husband, or by consenting to the provisions of her husband's will, waive her statutory rights.*

§ 1434. Effect of Divorce or Remarriage.

A woman who is divorced from her husband prior to his death is not his widow and is not entitled to a widow's allowance out of his estate after his death. This has been held to apply even to a divorce mensa et thoro." But a decree of divorce entered nisi does not dissolve the

3 Linton v. Crosby, 56 Iowa 386, 41 Am. Rep. 107, 9 N. W. 311; Fisher v. Clopton, 110 Mo. App. 663, 85 S. W. 623; In re Roth, 9 Ohio Dec. 429; Linares v. De Linares, 93 Tex. 84, 53 S. W. 579; Hilton v. Stewart, 25 Utah 161 (sub nom. In re Park's Estate, 69 Pac. 671).

4 Estate of Whitney, 171 Cal. 750, 154 Pac. 855; Cowles v. Cowles, 74 Conn. 24, 49 Atl. 195; Buffington v. Buffington, 151 Ind. 200, 51 N. E. 328; Perkins v. Brinkley, 133 N. C. 86, 45 S. E. 465.

See § 1432.

Where by an antenuptial agreement the wife agreed to accept a fixed sum to be paid her during her life in lieu of any and all claims against the property of her husband, whether community or any other property or interest, it

was held a waiver of her right to an allowance out of the estate.In re Cutting, 174 Cal. 104, 161 Pac. 1137.

As to the effect of antenuptial agreements between husband and wife as affecting mutual property rights, see §§ 625-627.

As to postnuptial agreements, see §§ 628, 629.

As to the effect of consent to the will or election to take thereunder, see §§ 253, 254.

5 In re Evans' Estate, 21 Pa. Superior Court 430.

See § 1426 as to effect of sepa ration or remarriage as to right to homestead.

The rights of a widow to an allowance must be based upon a legal marriage.-In re Grimin's Estate, 131 Pa. St. 199, 17 Am. St. Rep. 796, 6 L. R. A. 717, 18 Atl. 1061.

marriage and if either party die before the decree becomes or can be made absolute, the suit is at an end and the surviving wife has a widow's right in the estate of the deceased husband. In California the statute provides that if, after hearing, the court determines a divorce should be granted, an interlocutory judgment must be entered declaring that the party in whose favor the court decides, is entitled to a divorce; and that after the entry of such interlocutory decree neither party has the right to dismiss the action without the consent of the other, but that a final decree of divorce can not be entered until after one year from the entry of the interlocutory decree." Under this statute the death of either party after the entry of the interlocutory judgment does not impair the power of the court to enter a final judgment for the purpose of establishing property rights passed upon, provisionally or otherwise, in the interlocutory judgment, This may be done at the motion of the surviving party, but the court can not, of its own motion and against the will of the surviving spouse, enter a final decree after the death of the other.8

Delay on the part of the widow in petitioning for her allowance may be a cause, according to circumstances, for refusing to grant the application, as where it would embarrass the settlement of the estate. If a widow delays making application for her allowance until after her remarriage, she is no longer the widow of the decedent; and as the right to an allowance is for her support

6 Chase v. Webster, 168 Mass. 228, 46 N. E. 705.

7 Cal. Civ. Code, §§ 131, 132.

8 Estate of Seiler, 164 Cal. 181, Ann. Cas. 1914B, 1093, 128 Pac.

9 Kingman v. Kingman, 31 N. H. 182; Perkins v. Brinkley, 133 N. C. 86, 45 S. E. 465; In re Williams' Appeal, 92 Pa. St. 69; McGowen ▼. Zimpelman, 53 Tex. 479.

in the character of widow and as part of the family of the decedent, her remarriage is proper cause for refusing to make an allowance.10 Where an allowance has been made to the widow for the benefit of herself and the minor children of the decedent, the court may continue the allowance, although the widow remarries, if it be necessary for the benefit of the children, but their mother, upon ceasing to be the widow of the deceased, can not claim an allowance for the benefit of herself.11

§ 1435. Effect of Death of Widow.

Statutes giving the right to an allowance for maintenance and support should not be so construed as to extend the bestowal of the bounty to any except those persons for whom it is intended.12 The right of a widow to an allowance for her maintenance and support is personal to herself and no title to any property of the estate vests in her because of the right to such allowance until it has been selected or set aside as required by the statute. In the event of her death her right to the allowance does not survive in her representative.18 In some jurisdic

10 In re Seittenspinner's Estate, 6 Pa. Dist. Rep. 454, 19 Pa. C. C. 630; In re Kern's Appeal, 120 Pa. St. 523, 14 Atl. 435; In re Machemer's Estate, 140 Pa. St. 544, 21 Atl. 441.

If a wife supposing her husband to be dead marries the second time, she can not claim a family allowance from the estate of her first husband so long as the second marriage remains unannulled. -Estate of Harrington (Harrington v. Union Trust Co.), 140 Cal. 294, 74 Pac. 136.

11 Estate of Still, 117 Cal. 509, 49 Pac. 463.

12 Henderson's Admr. v. Tucker, 70 Ala. 381; Hardin v. Pulley, 79 Ala. 381; Barnum v. Boughton, 55 Conn. 117, 10 Atl. 514; Tarbox v. Fisher, 50 Me. 236; Ex parte Dunn, 63 N. C. 137.

13 Tarbox v. Fisher, 50 Me. 236, 238; Adams v. Adams, 10 Met. (51 Mass.) 170; Carey v. Monroe, 54 N. J. Eq. 632, 35 Atl. 456; Simpson v. Cureton, 97 N. C. 112, 114, 2 S. E. 668.

If the widow petitions to have

tions, however, it is held that the right of the widow to her allowance vests immediately upon the death of her husband, and that such interest passes at her death to her representative although it had never been awarded. her by order of court.14

§1436. Effect of Wife's Desertion or Misconduct.

The authorities are not in harmony as to what effect the separation of a husband and wife or of the wife's desertion or misconduct has upon her right to a widow's allowance for support. Under the Utah statute which provides for an allowance to the "immediate family" of a decedent, it is held that the intendment is to provide for the present needs of the family when its head has been removed by death, and that a wife, who at the time of her husband's death was, and for several years prior thereto had been, living separate and apart from him, and who during such period had never been dependent upon him for support, did not constitute the "immediate" family of the deceased, and that the court may properly refuse to award her an allowance as the widow of the decedent.15

And in Pennsylvania it has been held that if a wife. voluntarily deserts her husband and continues to live

the estate set apart to her and dies before the matter is determined, the proceedings abate with her death.-Estate of Bachelder, 123 Cal. 466, 56 Pac. 97.

14 Brown v. Joiner, 80 Ga. 486, 5 S. E. 497; Swain v. Stewart, 98 Ga. 366, 25 S. E. 831; York v. York, 38 III. 522; Bratney v. Curry, 33 Ind. 399; Cummings v. CumIII Com. on Wills-24

mings, 51 Mo. 261; Appeal of Finney, 113 Pa. St. 11, 4 Atl. 60.

15 Hilton v. Stewart, 25 Utah 161 (sub nom. In re Park's Estate, 69 Pac. 671).

To the same effect, see Estate of Noah, 73 Cal. 583, 2 Am. St Rep. 829, 15 Pac. 287.

See § 1426 as to effect of sepa ration or remarriage on right o widow to a homestead.

separate and apart from him for an extended period prior to his death, refusing to perform such duties as are imposed by the marital relation, she is not the widow of her husband after his death within the contemplation of the statute entitling her to administer his estate and receive an allowance of three hundred dollars. 16 In Massachusetts it has been held that if the wife was justified because of the misconduct of her husband in leaving him and in living separate and apart from him, her apparent desertion will not bar her from the right to an allowance as the widow of the decedent.17 In Georgia it is held that the widow is not barred from claiming the benefit of the statutory allowance for a year's support because of the fact that for a number of years prior to her husband's death she had been living separate and apart from him.15 § 1437. The Same Subject: Comments as to the Rule.

In some jurisdictions, under the statute, adultery on the part of the wife is held a bar to her right to the widow's allowance.19 Under the Indiana statute it has been held that if the adultery is discontinued prior to the husband's death, the right is not barred.20 In a Washington case it is said that if the wife prior to marriage was guilty of misconduct, which was known to the husband when he married her, and the husband sanctioned continued im

16 In re Odiorne's Appeal, 54 Pa. St. 175, 93 Am. Dec. 683.

See, also, Estate of Kahn, 16 Pa. Co. Ct. Rep. 72; Estate of Creighton, 21 Pa. Co. Ct. Rep. 83.

As to the effect of antenuptial and separation agreements, see § 1433.

17 Slack v. Slack, 123 Mass. 444. 18 Smith v. Smith, 112 Ga. 351, 37 S. E. 407; Aiken v. Davidson, 146 Ga. 252, 91 S. E. 34.

19 Cook v. Sexton, 79 N. C. 305; Leonard v. Leonard, 107 N. C. 171, 12 S. E. 60.

20 Zeigler v. Mize, 132 Ind. 403, 31 N. E. 945.