Tockstein v. Pacific Kissel Kar Branch Town of Flagstaff, McMillon v. (Ariz.)... 318 .... Whiteman v. Cornwell (Kan.). 906 White v. East Side Mill & Lumber Co. (Or.) 736 White, Pacific Power & Light Co. V. (Wash.) 602 280 [Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.] KANSAS. Danielson v. Danielson, 161 P. 623. Forbes v. Madden, 158 P. 850. Frost v. City of Topeka, 161 P. 936. Oberly v. Harris, 143 P. 663. Second petition for rehearing. Rogers v. Milliken Oil Co., 161 P. 799. Second petition for rehearing. OREGON. Weathers v. Kansas City Bridge Co., 162 P. City of Portland v. Schmid, 161 P. 560. 957. Second peti Second peti Second Cormack v. Cormack, 160 P. 380. First Nat. Bank of Portland v. Courtright, 161 Hewey v. Andrews, 161 P. 108. Meyers v. Hot Lake Sanatorium Co., 161 P. 697. Myers v. Strowbridge Estate Co., 160 P. 135. St. Martin v. Hendershott, 151 P. 706, 160 P. 373. Sorsby v. Benninghoven, 161 P. 251. peti-State v. Goodall, 160 P. 595. Williams v. Williams, 162 P. 834. THE PACIFIC REPORTER VOLUME 164 (174 Cal. 684) gument that they have no inheritable inter In re JEPSON'S ESTATE (L. A. 5055, est and are, therefore, not parties in interest, 5056.) (Supreme Court of California. March 22, 1917.) DESCENT AND DISTRIBUTION 34-PERSONS ENTITLED-NEPHEWS AND NIECES. Under Civ. Code, § 1386, subd. 2, providing that the issue of deceased brothers and sisters take by descent in certain cases, and subdivision 4, giving the entire estate to the surviving spouse if decedent does not leave certain enumerated relatives including, as now amended. | the issue of deceased brothers and sisters, such issue now take by descent, although it was otherwise before the amendment of subdivision 4. [Ed. Note.-For other cases, see Descent and Distribution, Cent. Dig. §§ 97-101.] Lorigan, J., dissenting. In Bank. Appeals from Superior Court, Los Angeles County; James C. Rives, Judge. In the matter of the estate of Frederick E. Jepson, deceased. From orders setting apart a homestead to the widow and dismissing contests, deceased's nephews and nieces appeal. Motions to dismiss denied. Fred N. Arnoldy and Stewart & Stewart, all of Los Angeles, for appellants. Frank Stewart and J. W. Howell, both of Los Angeles, for respondents. is founded upon the construction which this court gave to subdivisions 5 and 2 of section 1386 of the Civil Code as those subdivisions read before their amendment in 1905, the further contention being advanced that the amendments of 1905 have not changed the law so as to give such nephews and nieces an inheritable interest which before the amendments was not theirs. The cases referred to are Estate of Ingram, 78 Cal. 586, 21 Pac. 435, 12 Am. St. Rep. 80, Estate of Carmody, 88 Cal. 616, 26 Pac. 373, and Estate of Nigro, 149 Cal. 702, 87 Pac. 384. In each of those cases this court was construing, as it was compelled to do, subdivision 2 of section 1386, under the limitations upon that subdivision imposed by the language of subdivision 5 .of the same section. By the amendments of 1905 subdivision 5 has become subdivision 4, and for convenience in exposition we will here deal with subdivision 4, it always to be borne in mind that in the cases above cited it was, and was called, subdivision 5. What, then, were these cases? The first of them, the Estate of Ingram, is the only one calling for analysis, since the other two simply follow the construction placed on the law in the Estate of Ingram. The Estate of Ingram presented precisely the situation that HENSHAW, J. Frederick E. Jepson, upon his death, intestate, left surviving him a widow, but neither issue, nor father, nor mother, nor brother, nor sister. He did, how-exists in the present case. There was no surever, leave nephews and nieces, children of deceased brothers and sisters. The widow made application to the court in probate to have set apart to her a homestead. These nephews and nieces filed a contest. Their contest was dismissed by the court in probate, upon the ground that they were not parties in interest. The court made its order setting aside a homestead to the widow. The nephews and nieces have appealed from both of these orders, and their appeals are met with this motion to dismiss upon the ground indicated, namely, that they are not parties in interest. The question then is this: If these nephews and nieces under our law of succession have no inheritable interest in the estate of the deceased, they are not interested in the widow's application for a homestead, and these appeals should be dismissed. The ar viving father or mother; there was no sur- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes We spouse. Subdivision 2 treated of the dispo-, the surviving spouse should not take all of sition of the estate in the other contingencies the estate if, as well as those first enumeratcontemplated by subdivision 4, and it declared, children or grandchildren of a deceased ed that if the deceased spouse left father and brother or sister survived. As a limitation mother or father or mother, one-half of the upon the right of the wife to take all of the estate should go to them or the survivor of estate, these children and grandchildren of them. If there was neither father, nor moth- a deceased brother or sister were placed in er, then the one-half of the estate, which oth- the same list and category as a surviving erwise would have gone to them, went to the parent or a surviving brother or sister. living brothers and sisters "and to the chil- now have the law reading as it never read bedren of any, deceased brother or sister by fore. We have the law declaring that the right of representation." What, then, was surviving spouse shall not take all if the dethe inevitable and necessary construction of ceased spouse left a surviving father, or moththese laws forced upon this court? It was er, or, failing these, left a surviving brother simply this: Subdivision 4 had placed no lim- or sister, or, failing these, left children or itation upon the right of the surviving spouse grandchildren of a deceased brother or sisto take all of the estate merely because there ter. It still becomes necessary to turn to might have been living children of a deceas- subdivision 2 to learn what disposition the ed brother or sister, but, to the contrary, had law makes of the estate when any of the said that unless there were living brothers contingencies or limitations contemplated by or sisters, the whole estate should go to the section 4 upon the surviving spouse's right to widow. Turning, then, to subdivision 2, take all of the estate have arisen, and we do which contemplates that in the event that this now with the fixed declaration of the there is a living brother or sister and chil- law that the surviving spouse shall not take dren of a deceased brother or sister, the chil- all of the estate if there be surviving children of such deceased brother or sister shall dren or grandchildren of a deceased brother take the parent's share, the construction was or sister of the deceased spouse. When we inevitable that such children of a deceased turn to the consideration of subdivision 2, brother or sister could take only upon con- with this new light and law before us, we tingency, and that contingency was the ex- now find a law rationally and justly framed istence of a living brother or sister. This to enable children of a deceased brother or construction, we have said, was forced upon sister to inherit, whether or not there be a this court. We mean forced in the sense that surviving brother or sister. If there be a surit was an inevitable and unescapable conclu- viving brother or sister, then the children of sion. The unreasonableness of it-even the each deceased brother or sister take collecinjustice of it—was apparent and was recog- tively their parent's share "by right of representation." If there be no surviving brother or sister, and there be children of more than one deceased brother or sister, each group of such children takes the parent's Such is share by right of representation. the manifest meaning of the amended law; such is the meaning that would have been given to this law from the first-a meaning which this court was unable to give it because of the original limitation in subdivision 4, so often referred to. nized. No sound reason could be or ever was attempted to be adduced to support a law which said, as then did ours, that children of a deceased brother or sister could share in the estate if there was another living brother or sister, but could not share if there were none. All that this court could say was: Ita scripta lex. In time the anomaly of the situation came to be recognized by the Legislature and it amended subdivision 4 in a most important particular. It also amended subdivision 2, that it might read harmoniously with the amended subdivision 4. That amendment for the first time added to the classes, the existence of which would forbid the surviving spouse from taking all of the estate "the children or grandchildren of a deceased brother or sister." Or, to make our meaning plain, paraphrasing the language of subdivision 4, while still maintaining its meaning, originally it declared that all of the estate shall go to the surviving spouse unless the deceased spouse left issue, husband, wife, father, mother, brother, or sister, in which event the estate should go as provided in the previous subdivisions 1 and 2; or, again paraphrasing its meaning, the subdivision declared that the surviving spouse should not take all of the estate if any of these enumerated relations of the deceased spouse survive. By the And, finally, let it be said, if the amendment to subdivision 4, aptly phrased to accomplish this thing, does not mean this it means nothing, and the Legislature was but beating the air. The precise question here under consideration has never been directly presented to this court under these amendments to section 1386 of the Civil Code. But upon the other hand there is no decision of the court given since those amendments which follows the views of the Estate of Ingram-the law of which case happily fell to the ground with the existence of the amendments. contrary, while the question was not directly presented in them, the opinions in such cases as Estate of Claiborne, 158 Cal. 646, 112 Pac. 278, could only have been written under the recognized concession of the litigants that To the |