injury; and in such a case the maxim that where one of two innocent persons must suffer from the wrongful act of another, the loss must fall upon the one making the act possible, has no application." In the case at bar appellant was not bound to anticipate that Fitzgerald would commit forgery and assign her contract, and, as already pointed out, her rights cannot be defeated by his act in that regard. As respondents' claim is based solely on the assignment from Fitzgerald, appellant's negligence in other particulars, such as her failure to record her contract, is immaterial. [6] Respondents' argument with reference to their third point is that it must be presumed appellant has stated her cause as favorably as possible to herself and that the parties have followed the ordinary course of business; that from this presumption follows another that, inasmuch as appellant alleged respondents paid the balance of the purchase price and took the deed from the land company after November 26, 1913, they took the deed and had it recorded on November 27, 1913. From this it would follow that, as the second amended complaint was filed on August 22, 1918, nearly five years after appellant had the means of knowledge of respondents' claim, her cause of action is barred by laches and by the statute of limitations. In the demurrer it was stated "that the cause of action attempted by said plaintiff to be set forth in said second amended complaint is barred by laches. There was no allegation that it was barred by the statute of limitations. It is said in Hecht v. Slaney, 72 Cal. 363, 366 [14 Pac. 88], cited with approval in Lezinsky v. Mason Malt Whiskey Distilling Co., supra, that "Whatever may once have been the rule, it is now well settled that the statute of limitations runs in favor of a defendant chargeable as a trustee of an implied trust, and it is not necessary, in order to set the statute in motion, that he should have denied or repudiated the trust. [Citing authorities.] "In such a case, the statute begins to run when the wrong complained of is done, and under our code the limitation is four years. (Code Civ. Proc., sec. 343; Piller v. Southern Pacific R. R. Co., 52 Cal. 42.)" It must be assumed, in the absence of anything to the contrary, that the action was commenced within the four years allowed by the statute. In Meigs v. Pinkham, 159 Cal. 104 [112 Pac. 883], the court declared that "Under our law, as the statute of limitations is applicable to both legal and equitable actions, there can be no laches in delaying the bringing of an action if it is brought within the period of limitation [citing authorities], unless there are some facts or circumstances attending the delay which have operated to the injury of the defendant." There are no facts alleged in the complaint from which it appears that any injury will result from appellant's delay in instituting the proceeding. Inasmuch as appellant has offered to do equity, she is entitled to her own equitable relief. The judgment is reversed. Lennon, J., Shaw, C. J., Waste, J., Wilbur, J., and Ward, J., concurred. [S. F. No. 10167. In Bank.-January 5, 1923.] In the Matter of the Estate of CHARLES MORTIMER BELSHAW, Deceased. ELIZABETH OXNER CLARK et al., Plaintiffs and Appellants, v. BERT OXNER et al., Defendants and Appellants; VIOLETTA H. PURCHASE, Defendant and Respondent. - PROPERTY IN- [1] ESTATES OF DECEASED PERSONS SUCCESSION HERITED FROM MOTHER · HALF-SISTER ON FATHER'S SIDESTRUCTION OF CODE.-Under subdivision 5 of section 1386 of the Civil Code a half-sister of the deceased father of a person dying intestate and in the third degree of relationship is entitled to succeed to the portion of the estate which such intestate inherited from his mother in preference to cousins of the whole blood of a more remote degree, since the exception in section 1394 of such code excluding kindred of the half blood in favor of kindred of the whole blood, where the former are not of the blood of the ancestor from whom the estate came by descent, devise or gift is operative only when there are kindred of the whole blood of the same degree as the kindred of the half blood. [2] ID. HALF-SISTER OF FATHER OF INTESTATE - KINDRED OF THE HALF BLOOD.-A half-sister of decedent's father, having one ancestor in common with decedent, is a kindred of the half blood. APPEAL from a judgment of the Superior Court of Contra Costa County. R. H. Latimer, Judge. Affirmed. The facts are stated in the opinion of the court. Gerald C. Halsey and Frederick T. Leo for Plaintiffs and Appellants. Charles M. Peck, Henry C. McPike and F. P. Webster for Defendants and Appellants. M. R. Jones, Creed, Jones & Dall and W. K. Powell for Respondent. LAWLOR, J.-This is a proceeding in the nature of an action to determine heirship, under section 1664 of the Code of Civil Procedure, in the matter of the estate of Charles M. Belshaw, deceased, who died on November 23, 1919. A testamentary disposition of all his property to his first wife having failed because of her death before his own, his estate is to be distributed according to the rules of succession applicable to cases of intestacy. Mortimer W. Belshaw, decedent's father, died April 28, 1898, and his estate was distributed one-half to his wife, Jane E. Belshaw, and one-half to decedent. Jane E. Belshaw died June 26, 1900, whereupon the property she had inherited from Mortimer W. Belshaw also passed to decedent. The sixteen plaintiffs and defendant Burton J. Oxner are second cousins of decedent, in the sixth degree of relationship to him. They are descendants of three sisters and two brothers of Conrad Oxner, decedent's maternal grandfather. Defendant Violetta H. Purchase, formerly Violetta Belshaw, is a half-sister of Mortimer W. Belshaw, decedent's father. She is a daughter of Mortimer W. Belshaw's father by a second wife and is in the third degree of relationship to decedent. The other ten defendants are descendants of two sisters of Mary Rhodes, decedent's paternal grand mother, who was the mother of Mortimer W. Belshaw, but not of Violetta H. Purchase. These defendants are cousins of decedent in the fifth, sixth and seventh degree of relationship. The trial court found that "defendant Violetta H. Purchase is a kindred of the third degree to Charles Mortimer Belshaw, deceased, on the paternal side and that said Violetta H. Purchase is the sole heir at law of said Charles Mortimer Belshaw, deceased." From judgment entered pursuant thereto plaintiffs and all the defendants except Violetta II. Purchase appeal. It is conceded by all the parties that the distribution of the estate is to be governed by subdivision 5 of section 1386 of the Civil Code, which provides: "If the decedent leaves neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that, when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote." The principal question presented on this appeal is whether respondent, Violetta H. Purchase, being a half-sister of decedent's father, is precluded, under section 1394 of the Civil Code, from inheriting that portion of decedent's estate which came to him from his mother. That section is as follows: "Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance." Violetta H. Purchase is not of the blood of decedent's mother, Jane E. Belshaw. [1] Appellants contend the second clause of section 1394, the portion following the word "unless," applies to all cases wherein next of kin of the half blood claim the property which has come to a decedent from an ancestor not of the blood of the claimants and that its effect is to exclude such kindred from the inheritance. Respondent's position is that the second clause is operative only when there are kindred of the whole blood of the same degree as the kindred of the half blood and that kindred of the half blood inherit such property in preference to those of the whole blood of more remote degree. Estate of Smith, 131 Cal. 433 [82 Am. St. Rep. 358, 63 Pac. 729], is cited by respondent as determining this proposition in her favor. In that case the deceased, who died intestate, inherited the property distributed from her father. She left surviving her, her husband and two halfsisters on the mother's side. It was decided the half-sisters were entitled to share the estate with the husband under the provisions of subdivision two of section 1386 of the Civil Code. The court held that the word "unless" should be given the same meaning as "except" and that the last clause "can, therefore, apply only to the class described in the first, or, in other words, to the class from which it constitutes an exception, which is, kindred 'in the same degree'" and that "The effect of the provision is therefore simply to subdivide each of the classes as determined by degree of relationship into two classes, namely, those of the full and those of the half blood, and in each class to postpone the latter to the former." Appellants insist the decision in that case should not be followed for the reason that it placed a wrong interpretation on section 1394, and it is further claimed the remarks concerning that section were obiter dicta. Exhaustive arguments are presented for the purpose of showing wherein the court erred in arriving at the conclusion therein announced, it being contended by appellants that the natural and ordinary meaning of section 1394 is that it should apply to all cases where estates are claimed by kindred of the half blood; that the second clause contains a declaration of a general policy of exclusion of the half blood from ancestral property and not a rule to be applied to an unusual state of facts, as when there are kindred of the half blood and whole blood in the same degree; that the construction contended for by appellants is in harmony with the provisions of the statute regulating succession wherever attention is given to the source of a decedent's title, such as subdivisions six and seven of section 1386; that the construction placed on the section by respondent limits the application of the second clause to cases where there |