concession which the court accepted. Estate that they were entitled to one-half of it. of Nigro, 172 Cal. 474, 156 Pac. 1019, contains nothing in opposition to what has been here said. In the Estate of Nigro this court simply laid down the unimpeachable proposition that children and grandchildren of a deceased brother or sister were not grouped in the law as forming together one class but as forming two distinct classes, so that grandchildren were entitled to the inheritance only in the event that there were no living children.

The motions to dismiss are therefore denied.

We concur: ANGELLOTTI, C. J.; SLOSS, J.; SHAW, J.; MELVIN, J.; LAWLOR, J.

LORIGAN, J. I dissent. As subdivisions 2 and 4 of section 1386 of the Civil Code now stand they provide-subdivision 2-that:

"If the decedent leaves no issue, the estate goes one half to the surviving husband or wife, and the other half to the decedent's father and mother in equal shares, and if either is dead the whole of said half goes to the other. If there is no father or mother, then one-half goes in equal shares to the brothers and sisters of decedent and to the children or grandchildren of any deceased brother or sister by right of representation."

I have italicized that portion of the section more particularly involved in the consideration of this matter. Subdivision 4 provides

that:

"If the decedent leaves a surviving husband or wife, and neither issue, father, mother, brother, sister, nor the children or grandchildren of a de ceased brother or sister, the whole estate goes to the surviving husband or wife."

These are the only subdivisions of the section requiring attention. Appellants base their claim as heirs to a portion of the estate of decedent under subdivision 2 of the section.

The trial court having ignored their claim entirely and having distributed all the estate to the assignee of the surviving husband, the said children and grandchildren of the said deceased sister appealed. They asserted, as do the appellants here, that they were entitled to one-half of the estate under said subdivision 2 of section 1386. This court, however, held to the contrary, and in construing both subdivisions 2 and 5 (now 4 as amended) said:

"It is entirely beyond doubt that the whole of the estate should have been distributed to the surviving husband. Paragraph 5 of section 1386 of the Civil Code is too clear to present follows: If the decedent leave a surviving husany difficulty of construction whatever. It is as band or wife, and neither issue, father, mother, brother, nor sister, the whole estate goes to the surviving husband or wife.' Paragraph 2 of said section refers to the case where there is a surviving brother or sister, and provides that in such case, if there be also children of the deceased brother or sister, they shall take their parents' share by right of representation. It is vain to argue against the injustice of the rule, or to contend that in a case like the one at bar the children of a deceased sister ought to have a share in the estate when there is not any surviving brother or sister, as well as when there is. Succession to estates is purely a matter of statutory regulation, which cannot be changed by courts."

While this was a department decision, the construction put on these subdivisions was subsequently affirmed in bank in Re Carmody, 88 Cal. 616, 26 Pac. 373, and Estate of Fabricio Nigro, 149 Cal. 702, 87 Pac. 384, in which latter case it was declared, while not questioning the construction of the subdivisions as made in the Ingram Case, that such interpretation of the law had theretofore become a rule of property which should be and is adhered to. These two decisions were made under the subdivisions as they stood prior to the said amendments of 1905, and they are confirmatory of the construction in the Ingram Case of the subdivisions as they then stood, and such construction should be adhered to not only as a proper one, but as having become a long-established rule of property, unless the amendment of 1905 to subdivision 4 compels a different construction. The prevailing opinion decides that it does. I am unable to agree with it. tainly, the amendment of 1905 of subdivision 2 itself worked no change in the construction as given in the Ingram Case. That amendment amounted only to the insertion of the word "grandchildren" therein which obviously operated solely as an enlargement of the class who might take if the class of Now, as to the Ingram Case, 78 Cal. 586,"children or grandchildren” could take at all. 21 Pac. 435, 12 Am. St. Rep. 80. It appears No one claims that this subdivision alone, therefrom that Mrs. Ingram, deceased, left a surviving husband, but no issue and no surviving father, mother, brother, or sister. There were, however, left by her certain children and grandchildren of a deceased sister, who, on distribution of the estate, claimed

When the Ingram Case, referred to in the prevailing opinion, was decided in 1889, subdivision 2 of section 1386 read just as it does now except that in 1905-many years after it was decided-it was amended so as to add the words "or grandchildren" after the word "children." The other subdivision quoted above subdivision 4-is the same now as it was when the Ingram Case was decided, except that it was then marked subdivision 5, and except, further, that it also was amended in 1905 to add "nor the children or grandchildren of a deceased brother or sister" after the word "sister." These amendments do not affect the situation here as far as grandchildren are concerned because there are

none.

Cer

as amended, called for any different construction than it received in the Ingram Case. And appellants do not. So it must be taken that as far as subdivision 2 is concerned it means, taken by itself, just what it has always meant and as the Ingram Case

declared it meant, namely, that the issue of ( do it in plain certain language in the proper a brother or sister of a deceased spouse place. If children and grandchildren were could not inherit unless there were also a to inherit one-half with the surviving spouse, brother or sister left surviving the decedent. though no brothers or sisters survived the It is claimed, however, that a change in sub- decedent, it could have easily and clearly division 2 was wrought through the amend- said so in subdivision 2, where the inheritment of subdivision 4 in 1905. If this is not able rights of said persons are declared, and so, then it has not been wrought at all. If not left it to be construed through the use of the amendment did have this effect, where negative, indirect, and obscure language inis the language in it which declares it? The serted in subdivision 4, and which does not insertion in subdivision 4 of the words "nor refer to succession or inheritance at all, and the children or grandchildren" is not lan- particularly where the only inheriting language potent or positive of itself to give guage used in said section is that conferring them the right to inherit at all. These words a positive inheritable right on the surviving were simply inserted in subdivision 4 to have spouse. I am satisfied that the enumeration it conform to subdivision 2 and make it in subdivision 4 of any of those who might consistent and harmonious with it. What not be entitled to take with the surviving the amendment to both these subdivisions spouse the one-half of the estate under subamounted to is as to subdivision 2-that division 2 was made simply as a reason for grandchildren and children of a deceased sis- granting or vesting the whole estate in such ter or brother may with a surviving brother surviving spouse and as not affecting the or sister of a decedent inherit one-half the change in the rules of succession declared in estate of a decedent with the surviving subdivision 2 and as construed in the Ingram spouse, but only where there is a surviving Case. brother or sister of the decedent who is entitled to do so. As to subdivision 4-that the surviving spouse shall inherit the whole estate when the decedent leaves "neither * brother, sister, nor the children or grandchildren of a deceased brother or sisIn other words, when the decedent spouse leaves none of those who, as enumerated therein, would be entitled to inherit one-half of it under subdivision 2, then the whole estate goes to the surviving spouse. It will be observed also that the only subdivision which gives brothers or sisters, children or grandchildren of a deceased brother or sister, in plain and direct language any right to inherit with a surviving spouse at all is this subdivision 2. Subdivision 4 does not pretend to confer any right of inheritance on any one save the surviving spouse, and then gives the whole estate to such survivor when none of the parties exist who under subdivision 2, re-enumerated in subdivision 4, would be entitled to take. It is necessarily understood when subdivision 4 declares that on the nonexistence of any of the different classes enumerated therein, the surviving spouse takes the whole estate, that what is meant is that none of the classes

ter."

The Estate of Claiborne, 158 Cal. 646, 112 Pac. 278, is not to be taken as authority questioning the rule of the Ingram Case. That case is not mentioned or discussed there, nor was the construction of subdivisions 2 and 4, or either of them, involved in that appeal. It could not be, as the question there was not one of succession on intestacy, but the construction of peculiar terms in a will. As far as the Estate of Ellen Nigro, 172 Cal. 474, 156 Pac. 1019, is concerned, while it did not involve the same question as here-the construction of subdivisions 2 and 4-it did involve the construction of subdivisions 2 and 3. In that construction the reasoning in the Ingram Case was applied and approved, and I do not perceive that the two cases present any radical difference between them in the language used as to inheritable rights.

I think the trial court was correct in holding that the appellants had no interest in the estate which entitled them to appear therein or to be heard on appeal to this court, and that the motions to dismiss their appeals should be granted.

(174 Cal. 672)

V. ANDERSON et al. (S. F. 6833.) (Supreme Court of California. March 20, 1917.) 1. FIXTURES 27(2) TRADE FIXTURES RIGHTS OF LESSOR · REMOVAL OF IMPROVEMENTS-STATUTE.

exist who, if left, would be capable of inher-REALTY DOCK & IMPROVEMENT CORP. iting under subdivision 2. Anderson v. Potter, 5 Cal. 63. If the Legislature did not agree with the interpretation in the Ingram Case it took it many years-some 17-to enact something different with the result that instead of a clear and positive enactment as to inheritable rights, if that was the intended subject, we are still left to indulge in more construction and interpretation as to what was meant. Certainly, if it was intended to change the Ingram rule and establish a different rule of succession, it was not difficult for the Legislature to do so and

Where a lease provided that all alterations, additions, and improvements to the premises by the lessee should become the property of the lessor, it is not material in determining the rights of the parties to a safety deposit vault constructed in the basement whether such vault was a trade fixture within Civ. Code, § 1019, giving the tenant the right to remove a trade fixture at any time before the termination of his lease if the removal could be effected with

out injury to the premises, unless the thing had damages from the defendants for the removal by the manner in which it was affixed became of said steel door and said exterior and inan integral part of the premises, or whether

the removal could be effected in the manner pre-terior steel lining of said vault, which it alscribed in that section, but the rights of the leged were wrongfully removed. The court parties are to be governed solely by the provi- made findings and entered a judgment in sions of the lease. favor of defendants, from which, and a denial of its motion for a new trial, plaintiff appeals.

[Ed. Note. For other cases, see Fixtures, Cent. Dig. §§ 5, 22, 44, 45, 54.]

2. LANDLORD AND TENANT 157(2, 3) LEASE CONSTRUCTION-"IMPROVEMENT." Within the provisions of a lease that no alterations. repairs, or changes should be made by the tenant except with consent of the lessor, and that all alterations, additions, and improvements made by the tenant should be the property of the lessor, a safety deposit vault built in accordance with the terms of the lease by the lessee, a bank, which consisted of a large room erected on the asement floor having substantial brick walls and a steel and concrete roof, all lined on both sides with steel plates, and having a steel door, became the property of the lessor, whether or not it was a trade fixture, since the term "improvement" is much more comprehensive than "fixture,' and the bank commissioner was therefore liable to the lessor for removing the steel lining and the door from the vault.

[Ed. Note.-For other cases, see Landlord and Tenant. Cent. Dig. §§ 574, 575.

For other definitions, see Words and Phrases, First and Second Series, Improvement.]

Shaw, J., dissenting.

In Bank. Appeal from Superior Court, City and County of San Francisco; Frank J. Murasky, Judge.

The court found that by the terms of the lease made between the plaintiff and the Union State Bank the bank was leased a certain amount of space on the ground floor of the Monadnock Building for ordinary banking business, and also a large room in the basement immediately below the ground floor space; said basement room to be used for safe deposit vaults to be constructed in said basement for the customers of the bank; that the premises leased should not be used "for any other purposes than that of banking and safe deposit business without the written consent of the lessor." The lease further provided:

repaired, or changed without the written con"That said premises should not be altered, sent of the lessor, and that unless otherwise provided by written agreement all alterations, improvements, and changes should be done either by or under the direction of the lessor, but at the cost of the said lessee; that all alterations, additions, and improvements made in and to said premises should, unless otherwise provided by a written agreement, be the property of the lessor and should remain upon and be surrender

Action by the Realty Dock & Improvemented with the premises." Corporation against Alden Anderson and another. Judgment for defendants, and plaintiff appeals. Reversed.

Edgar C. Chapman, of San Francisco, for appellant. F. R. Sweasey, F. A. Cutler, and Gillett & Cutler, all of San Francisco, for respondents.

LORIGAN, J. In June, 1908, the Union State Bank, a banking corporation, leased and went into the occupancy of a portion of the Monadnock Building in San Francisco, under a ten-year lease from Herbert C. Law, its owner. In October, 1908, Law sold the property and assigned his interest in the lease given to him by the Union State Bank to the plaintiff. In July, 1909, the defendant Alden Anderson, as superintendent of banks of this state, declared the Union State Bank to be insolvent, took charge of its property, business, and banking premises, and with the assistance of his codefendant, S. P. Young, his deputy, removed all the personal property of the bank from the building as expeditiously as possible, at that time, among other things, removing, over the protest of the plaintiff, a steel door and the exterior and interior steel plate linings of a large safe deposit vault which, under the terms of its lease, the bank had constructed in the basement of the leased banking premises.

As to the construction of the brick vault: The court found that the bank upon entering into possession of the premises constructed a safe deposit vault in said basement; that said vault rested on the floor of said basement and was not connected with the walls of the basement or with the ceiling, and was approximately 20 feet wide by 30 feet long and between 8 and 9 feet high; the walls of said vault were 2 feet thick, made of brick, and lined inside and out with sheets of steel; the vault was provided with a steel door and steel paneling surrounding the door; within this vault the said Union State Bank placed safe deposit boxes for the use of its customers; that neither said vault, door, or paneling in it was imbedded or affixed to said building owned by plaintiff, nor attached or affixed to its walls or connected therewith, and formed no integral part of said building, and was not placed in the basement of said building or in said building as an "alteration, addition, or improvement" thereto, but was placed there for the purpose of trade as aforesaid, and not otherwise, and the same could be removed from said building and from said basement without causing any injury or damage thereto.

These matters are taken from the findings. But in addition to said findings, and showing more in detail all about the construction of said vault and the removal thereof, the Plaintiff brought this action to recover following undisputed facts taken from the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

record are referred to: The safe deposit only way in which the articles could be revault was constructed by the bank under the moved.

the construction of the vault did or did not constitute an "alteration, addition, or improvement" to the building that the rights of the parties in this action are to be determined.

provisions of the lease and as an essential It is insisted by the appellant that the aid to the proper conduct of its banking busi- | finding of the trial court that neither the ness, and was of such substantial character vault, nor door, nor panelings, when conand strength and permanency of construc- structed, were affixed to the building owned tion as to render safe and secure protection by plaintiff and formed no integral part of for the valuables of the depositors and of the building leased, and were not placed in sufficient size to be convenient and commodi- the basement of said building, or in said ous for them. This vault was built in a cor- building, as an "alteration, addition, or imner of the basement room, and one side and provement" thereto, is not sustained by the one end were set against said basement walls. evidence. While this finding, as a whole, These were not connected by cement or mortar embraces several particular findings, we do with such basement walls, but were built up not think it necessary to consider the atagainst and parallel therewith. The vault tack of appellant upon all of them, because room was built up from the floor of said we are satisfied that its contention is corbasement to the width, breadth and height rect as to the particular finding that this as found by the court. The walls were 2 vault was not placed in said building as an feet thick, built of brick; they were con- "alteration, addition, or improvement" therestructed from the cement floor of the base- to, and it is upon the fact as to whether ment, the brick being laid on the basement floor and affixed thereto by means of mortar mixed with. cement. The roof of the vault did not reach the ceiling of the basement, but was constructed of 9-inch steel I beams, 18 feet long, laid close together across the [1] The theory of the respondents appears vault walls and filled in with brick and ce- to be, and was doubtless that adopted by the ment. The reasonable cost of the construc- trial court, that the construction of this tion of the vault brickwork was $800. The vault in the manner and style described in vault was lined inside and out with burnish-fixture which, under section 1019 of the Civil the evidence constituted it simply a trade ed steel casing; the outer steel casing being Code, the tenant had a right to remove at placed there solely for ornamental purposes. any time before the termination of his lease The steel of the ceiling of the vault was se- if the removal could be effected without incured to the steel beams entering into its jury to the premises unless the thing had construction, and the inner and outside steel by the manner in which it was affixed belinings were screwed to the brick walls of the vault. The steel door and vestibule (one do not think, however, as we have just said, come an integral part of the premises. We piece) was set in mortar and secured by flanges to the vault walls to hold it in place. that the finding of the court in as far as it This door and the inner and outer linings of determines that the vault is a trade fixture, the vault were of the reasonable value of and that it could be removed from the build$2,550. The defendants in dismantling the ing without causing any injury thereto, is of vault unscrewed the steel linings, inner and any consequence. Nor do we think it of any outer, from the walls of the ceiling, and moment in the consideration of this appeal broke away the plaster from around the whether the vault was imbedded in or affixed steel door and vestibule and took them out. to the main building and had become an inThe taking out of the door left the brick tegral part thereof, except in so far as these walls about the door somewhat jagged and matters may bear on what we consider the ragged on one side, but otherwise the brick- determinative question in the case, namely, work of the walls was not injured. No whether its construction constituted an “alattempt was made to remove any of the teration, addition, or improvement" in the walls or ceilings of the vault save as we premises which under the terms of the lease It is not a matter of have indicated. In fact, the only portions inured to the lessor. taken were the door and vestibule and the controlling importance whether the vault as inner and exterior steel linings. Otherwise constructed was a permanent or a movable the vault room was left intact. As to the fixture. We are not here considering the vault room itself, as originally constructed rights arising by operation of law only beand equipped and used by the bank, it was tween landlord and tenant as to the articles provided with safe deposit boxes on three placed upon the leased premises by the latsides, and with chairs, tables, and other ac- ter. On the contrary, these rights are to be commodations for the patrons of the safe de- determined from the terms of the lease unposit department. When these defendants der which the parties undertook to fix them. dismantled the vault in the manner describ- The lease provided that no "alterations, reed and took away the property in question pairs, or changes" should be made by the they did so by breaking the sidewalk in tenant except with the consent of the lessor, front of the building and taking it out and that, as to them, provided that all "althrough the opening so made. This was the terations, additions,

form described in the evidence it did constitute an "alteration, addition, and improvement" which passed to the owner of the leased premises when it was made is sustained

should be the property of the lessor. This, it could not be of particular value to the lesvault was built under the terms of the lease sor. That as constructed in the manner and and with the consent of the lessor. Hence, the only question is, Did this construction of the vault result in an "alteration, addition, or improvement” to the premises leased? If it did not, the defendants, as representing by the authorities. French v. Mayor, etc., the lessee, had a right to remove it as they did. If it did, then it belonged to the plaintiff and the defendants had no right to interfere with it.

of the City of New York, 29 Barb. (N. Y.) 363; Parker v. Wulstein, 48 N. J. Eq. 94, 21 Atl. 623; Merritt v. Judd, 14 Cal. 59; Harris v. Kelly (Pa.) 13 Atl. 523; Wright v. La May, 155 Mich. 119, 118 N. W. 964; In re Rahls Ice Cream & Baking Co. (D. C.) 195 Fed. 986; Levin v. Improved Property Holding Co., 141 App. Div. 106, 125 N. Y. Supp. 963. In the French Case, supra, the court said:

"The question in this case is not, what are fixtures which a tenant is at liberty to remove on the expiration of his lease, but, what did the lessees covenant with the lessors they would surrender and suffer to remain on the demised premises on the termination of the lease? The covenants of the lease are that on the last day of the term the lessees will surrender the demised premises, and all the improvements that may have been placed thereon by the said parties of the second part [the lessees], and which improvements are to belong to said parties of the first part [the lessors], and all of which are to be surrendered up in as good a state and condition as reasonable use and wear thereof will permit, damages by the elements excepted.' *

"The covenant is to surrender all the improvements that may have been placed thereon. Improvements clearly," in the lease here used, "embrace every addition, alteration, erection, or mised term, to render the premises more availannexation made by the lessees during the deable and profitable, or useful and convenient to them. It is a more comprehensive word than 'fixtures,' and necessarily includes it, and such additions as the law might not regard as fixtures. It would be difficult to select a more comprehensive word; and where the parties say all which may be placed upon the premises shall belong to the lessors, it is difficult to say what, if anything, would be excluded."

[2] It appears to us as assuming rather an idle task if we were to discuss at length the question whether the character of this vault built by the bank did or did not constitute "an alteration, addition, and improvement" in the premises. It is, of course, quite apparent that the term "improvement" is comprehensive enough to embrace all additions or alterations which may be made by a tenant for the convenience of his business upon the premises. It is much more comprehensive than the word "fixture," and, while including these, includes also many things that may not be classed as fixtures. In fact, if force is to be given to a provision in a lease which provides that all "improvements" made in premises shall inure to the lessor, it is difficult to conceive of any subsequent addition, alteration, or repair to the premises during the tenancy which would not be embraced within the term "improvement." That the construction of this vault was intended to and did amount to all of these-an addition, alteration, and improvement-and was embraced within the terms of the lease, we think is evident. Certainly, a room covering a floor space of 20 feet wide by 30 feet long, with walls 8 feet high, made of solid brick 2 feet thick set in cement and mortar, and having a steel beam roof, sheathing inside and out with steel sheeting screwed in place, having a steel door and vestibule and the whole erected and adapted as a safety vault at an expense of over $3,000, is in the nature of things an alteration in the premises on which it is built, and in its solidity, permanency, and utility is certainly an addition and improvement to the premises. It certainly altered the basement of the premises to build it there, and was an addition and improvement in aid of the use of the premises for banking purposes for which they were rented and in aid of which use the building SHAW, J. (dissenting). I dissent. Under of the vault was contemplated and accom- the terms of the lease and upon the facts as plished. This safety vault was not like an stated by Justice LORIGAN I am of the ordinary movable safe or a machine which opinion that the safe deposit vaults, having might be temporarily housed in or which is been put in the basement solely to facilitate constructed or fixed together in parts readily the banking business carried on by the tenseparable so as to permit of removal and re- ant in the leased premises, and not forming assembling at some other place. This vault any part of the premises leased, should not as constructed had no removable identity. It be deemed to be a part of the premises, or lost its character as a safety vault as soon as an "improvement" thereto within the meanit was taken apart. With the removal of the ing of the clause that all "improvements steel casings and the door the structure re- made in and to said premises" should go to mained but brick and mortar, which, as one the lessor. That clause should be held to of the defendants testified, was of no use or refer to improvements to the premises as value to the lessee, and in its then condition | leased, not to a trade structure in no way

While the other authorities cited are to the same effect, attention is specially directed to Parker v. Wulstein, supra, for a more particular discussion of the subject.

The judgment and order appealed from are reversed.

We concur: ANGELLOTTI, C. J.; MEL VIN, J.; HENSHAW, J.; SLOSS, J.; LAWLOR, J.