Mallery, J.
There is no dispute in the facts in this case.
Mabelle Cook and T. J. Cook were married on or about the 16th day of December, 1922. There were no children born as the issue of this marriage. T. J. Cook died on the 28th day of June, 1943, having previously devised his property, which was separate, to his children by a former marriage. After his death, the surviving spouse, Mabelle Cook, peti
tioned the court for a family allowance and was granted the sum of $575 on the 14th day of September, 1943, which was paid. On the same day, on the petition of Doris Cook, the executrix named in the will of T. J. Cook, an order of solvency was entered. Thereafter, a petition for an additional family allowance was made to the executrix and was denied.
On the 9th day of February, 1944, Mabelle Cook commenced an action against the executrix for an additional family allowance. Prior to the trial of the action and on the 9th day of October, 1944, Mabelle Cook died. Subsequently, on a hearing held on a motion to substitute Margaret Harris, executrix of the estate of Mabelle Cook, as plaintiff in the action and also to consider a plea in abatement of the matter, the court entered an order providing, among other things, as follows:
“It is here and now considered and ordered that Margaret Harris, as executrix of the Estate of Mabelle Cook, deceased, be and she is hereby substituted as party plaintiff for the purpose of the further prosecution of this action.”
The legal question herein is a case of first instance in this state. It is: Does a widow’s right to a family allowance survive when her death occurs prior to the time an allowance has been made and entered? Upon
this
question, we quote the language used in
Easton v. Fessenden,
65 R. I. 259, 14 A. (2d) 508, 511:
“Many decisions from other jurisdictions have been cited to us by both parties. We have examined those decisions and find no case upon a statute exactly like our own. The wide variance in the language of the statutes of other states has resulted in what appears as a conflict of authority. As a matter of fact, such a conflict is more apparent than real, and disappears in most if not all cases when proper consideration is given to the language of the statutes which are the basis of apparently conflicting decisions.
“Generally speaking, the cases fall into two distinct classes. One class deals with statutes which give to the widow a fixed and definite allowance of certain personal property out of her husband’s estate in mandatory terms. Under such statutes, it is generally held that the widow’s right to the allowance will pass to her personal representa
tive as part of her estate.
Brown, Admr. v. Joiner, Admr.,
77 Ga. 232;
Pyles v. Bowie,
123 Md. 13;
Bratney, Admr. v. Curry,
Ex. 33, Ind. 399;
In re Estate of Phillips,
27 Ohio N. P. (N. S.) 142;
In re James’ Estate,
38 S. D. 107;
In re Lux’s Estate,
114 Cal. 89;
Poupore v. Stone-Ordean-Wells Co.,
132 Minn. 409;
Allen v. Hempstead,
154 Ill. App. 91. Cases of the other class involve statutes which leave the amount of the widow’s allowance, and the question of whether it shall be granted at all, to the discretion of a court or other body or person. Under these statutes, the cases generally hold that the right to the personal property of the husband’s estate therein described is personal to the widow and will not pass to her executor or administrator.
Adams v. Adams,
10 Metc. 170;
Drew v. Gordon,
13 Allen 120;
Zunkel v. Colson,
109 Ia. 695;
Ex Parte Dunn,
63 N. C. 137;
In re Bayer’s Estate,
95 Neb. 532;
Tarbox v. Fisher, Admr.,
50 Me. 236;
Johnson’s Estate v. Johnson’s Estate,
41 Vt. 467;
In re Hearn’s Estate,
195 A. (Del.) 367.”
The survival or nonsurvival of the action in the jurisdictions of this country appears to turn on the point of time when the property, by virtue of the widow’s statutory right to an allowance, vests. If the property allowance vests immediately upon the death of the husband, the action survives; if it does not vest until the allowance is made, and the widow dies prior thereto, the action abates. The time the property is determined to vest is dependent upon the language of the statute in each jurisdiction.
While the authorities are not completely harmonious on the question here involved, we think the above-cited case represents the weight of authority and expresses the better reasoned rule.
Our statute, Rem. Rev. Stat., § 1476 [P. P. C. § 205-7], reads as follows:
“In addition to the awards herein provided for, the Court
may
make such further reasonable allowance of cash out of the estate
as may be necessary
for the maintenance of the family according to their circumstances, during the progress of the settlement of the estate, and any such allowance shall be paid by the executor or administrator in preference to all other charges, except funeral charges, expenses of last sickness and expenses of administration.” (Italics ours.)
If the court, in its sound discretion, may determine that no allowance is necessary and hence deny one in any amount whatever, it would follow that a right to an allowance would not vest immediately upon an application for one.
It is contended that the court is without power to wholly deny an allowance but may only exercise discretion as to fixing the amount. We do not agree that this was the legislative intent of the statute.
We therefore hold that the right to the family allowance in this case is personal to the widow, and that the action does not survive to the executrix to her estate.
This matter comes before this court on an order to show cause why a writ of prohibition should not issue, as otherwise the cause will be brought on for trial. The respondent does not raise the question of the appropriateness of the form of this action to settle the question of law involved. Indeed, she requested, for reasons of convenience and economy, that the legal question be here decided. However, on our own motion, we raise the question of whether or not a petition for a writ of prohibition should lie in the instant case.
Rem. Rev. Stat., § 1027 [P.P.C. § 17-1], reads as follows:
“The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person [L. ’95, p. 119, § 29].”
In
State ex rel. Cheson v. Superior Court,
22 Wn. (2d) 947, 157 P. (2d) 991, this court said:
“Prohibition does not lie to review interlocutory orders of a court having jurisdiction of the subject matter of litigation. In
State ex rel. Prentice v. Superior Court,
86 Wash. 90, 149 Pac. 321, p.
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Mallery, J.
There is no dispute in the facts in this case.
Mabelle Cook and T. J. Cook were married on or about the 16th day of December, 1922. There were no children born as the issue of this marriage. T. J. Cook died on the 28th day of June, 1943, having previously devised his property, which was separate, to his children by a former marriage. After his death, the surviving spouse, Mabelle Cook, peti
tioned the court for a family allowance and was granted the sum of $575 on the 14th day of September, 1943, which was paid. On the same day, on the petition of Doris Cook, the executrix named in the will of T. J. Cook, an order of solvency was entered. Thereafter, a petition for an additional family allowance was made to the executrix and was denied.
On the 9th day of February, 1944, Mabelle Cook commenced an action against the executrix for an additional family allowance. Prior to the trial of the action and on the 9th day of October, 1944, Mabelle Cook died. Subsequently, on a hearing held on a motion to substitute Margaret Harris, executrix of the estate of Mabelle Cook, as plaintiff in the action and also to consider a plea in abatement of the matter, the court entered an order providing, among other things, as follows:
“It is here and now considered and ordered that Margaret Harris, as executrix of the Estate of Mabelle Cook, deceased, be and she is hereby substituted as party plaintiff for the purpose of the further prosecution of this action.”
The legal question herein is a case of first instance in this state. It is: Does a widow’s right to a family allowance survive when her death occurs prior to the time an allowance has been made and entered? Upon
this
question, we quote the language used in
Easton v. Fessenden,
65 R. I. 259, 14 A. (2d) 508, 511:
“Many decisions from other jurisdictions have been cited to us by both parties. We have examined those decisions and find no case upon a statute exactly like our own. The wide variance in the language of the statutes of other states has resulted in what appears as a conflict of authority. As a matter of fact, such a conflict is more apparent than real, and disappears in most if not all cases when proper consideration is given to the language of the statutes which are the basis of apparently conflicting decisions.
“Generally speaking, the cases fall into two distinct classes. One class deals with statutes which give to the widow a fixed and definite allowance of certain personal property out of her husband’s estate in mandatory terms. Under such statutes, it is generally held that the widow’s right to the allowance will pass to her personal representa
tive as part of her estate.
Brown, Admr. v. Joiner, Admr.,
77 Ga. 232;
Pyles v. Bowie,
123 Md. 13;
Bratney, Admr. v. Curry,
Ex. 33, Ind. 399;
In re Estate of Phillips,
27 Ohio N. P. (N. S.) 142;
In re James’ Estate,
38 S. D. 107;
In re Lux’s Estate,
114 Cal. 89;
Poupore v. Stone-Ordean-Wells Co.,
132 Minn. 409;
Allen v. Hempstead,
154 Ill. App. 91. Cases of the other class involve statutes which leave the amount of the widow’s allowance, and the question of whether it shall be granted at all, to the discretion of a court or other body or person. Under these statutes, the cases generally hold that the right to the personal property of the husband’s estate therein described is personal to the widow and will not pass to her executor or administrator.
Adams v. Adams,
10 Metc. 170;
Drew v. Gordon,
13 Allen 120;
Zunkel v. Colson,
109 Ia. 695;
Ex Parte Dunn,
63 N. C. 137;
In re Bayer’s Estate,
95 Neb. 532;
Tarbox v. Fisher, Admr.,
50 Me. 236;
Johnson’s Estate v. Johnson’s Estate,
41 Vt. 467;
In re Hearn’s Estate,
195 A. (Del.) 367.”
The survival or nonsurvival of the action in the jurisdictions of this country appears to turn on the point of time when the property, by virtue of the widow’s statutory right to an allowance, vests. If the property allowance vests immediately upon the death of the husband, the action survives; if it does not vest until the allowance is made, and the widow dies prior thereto, the action abates. The time the property is determined to vest is dependent upon the language of the statute in each jurisdiction.
While the authorities are not completely harmonious on the question here involved, we think the above-cited case represents the weight of authority and expresses the better reasoned rule.
Our statute, Rem. Rev. Stat., § 1476 [P. P. C. § 205-7], reads as follows:
“In addition to the awards herein provided for, the Court
may
make such further reasonable allowance of cash out of the estate
as may be necessary
for the maintenance of the family according to their circumstances, during the progress of the settlement of the estate, and any such allowance shall be paid by the executor or administrator in preference to all other charges, except funeral charges, expenses of last sickness and expenses of administration.” (Italics ours.)
If the court, in its sound discretion, may determine that no allowance is necessary and hence deny one in any amount whatever, it would follow that a right to an allowance would not vest immediately upon an application for one.
It is contended that the court is without power to wholly deny an allowance but may only exercise discretion as to fixing the amount. We do not agree that this was the legislative intent of the statute.
We therefore hold that the right to the family allowance in this case is personal to the widow, and that the action does not survive to the executrix to her estate.
This matter comes before this court on an order to show cause why a writ of prohibition should not issue, as otherwise the cause will be brought on for trial. The respondent does not raise the question of the appropriateness of the form of this action to settle the question of law involved. Indeed, she requested, for reasons of convenience and economy, that the legal question be here decided. However, on our own motion, we raise the question of whether or not a petition for a writ of prohibition should lie in the instant case.
Rem. Rev. Stat., § 1027 [P.P.C. § 17-1], reads as follows:
“The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person [L. ’95, p. 119, § 29].”
In
State ex rel. Cheson v. Superior Court,
22 Wn. (2d) 947, 157 P. (2d) 991, this court said:
“Prohibition does not lie to review interlocutory orders of a court having jurisdiction of the subject matter of litigation. In
State ex rel. Prentice v. Superior Court,
86 Wash. 90, 149 Pac. 321, p. 93, is found a succinct statement of the rule, and which has been applied in innumerable instances:
“ Where the superior court has jurisdiction of the subject matter in controversy, prohibition will not lie to prevent an erroneous exercise of such jurisdiction, where there is an adequate remedy by appeal or writ of review. The writ is not issued to prevent the commission of mere error, nor to take the place of an appeal or perform the office of a writ
of review for the correction of error. The writ will only issue to inferior courts where they are proceeding, or threatening to proceed, without, or in excess of, their jurisdiction.’ ”
Having held that the action abates, it follows that there is no subject matter upon which the court could exercise its jurisdiction. Therefore it would act, if it acted at all, without jurisdiction.
A cross-complaint has been entered in this action. As to its survival,
State ex rel. Atkins v. Superior Court,
1 Wn. (2d) 677, 97 P. (2d) 139, is squarely in point. Therein we said:
“Respondent argues that relator has made no case for the the issuance of a writ of prohibition, because it does not appear that the trial court is acting without or in excess of its jurisdiction, and because an adequate remedy by appeal exists. We hold that, in indicating that it will proceed to hear, in the divorce action, the issues raised by Mr. Gerts’ cross-complaint, the trial court is acting in excess of its jurisdiction, as that action has abated, the court having only jurisdiction to enter an order of dismissal. The death of Mrs. Gerts is admitted. The jurisdiction of the court does not depend upon any controverted fact which it must determine.
State ex rel. Hopman v. Superior Court,
88 Wash. 612, 153 Pac. 315.”
The writ will issue.
Beals, C. J., Steinert, Blake, Robinson, and Grady, JJ., concur.