                                    No. 12426

         I N THE SUPREME COURT O THE STATE O M N A A
                                F           F OTN

                                        1973




I N THE MATTER O THE ESTATE O
                F            F
PETER B. GLEIN, Deceased.




Appeal from:        D i s t r i c t Court o f t h e F i f t e e n t h J u d i c i a l D i s t r i c t ,
                    Honorable M. James S o r t e , Judge p r e s i d i n g ,

Counsel o f Record:

    For A p p e l l a n t :

           Anderson, Symmes, F o r b e s , P e e t e and Brown, B i l l i n g s ,
            Montana
                                          .
           Rockwood Brown, J r argued, B i l l i n g s , Montana

    For Respondent :

            Loren J. 0 ' ~ o o l eargued, Plentywood, Montana



                                                  Submitted:          June 1 9 , 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 agree-
ment.   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 with-
drew her assignment of error concerning the denial of her peti-
tion for renunciation of Peter Glein's will.      The remaining issue
before this Court is whether the district court erred in deny-
ing 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 appli-
cable "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 indi-
cates 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, partic-
ularly 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' Es-
       tate, 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 in-
come 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
