and that by section 1387 of the Civil Code | heritance are governed by section 1386 of the right given to illegitimates of succession the Civil Code which confers rights of into the estate of lineal or collateral kindred of heritance upon legitimate children. their parents is expressly limited to the estates of their brothers and sisters.

The question of the rights of succession of a child legitimated by statute to succeed to his grandmother's estate is new in this state, and for that reason is one of more than ordinary interest. Section 1387, referred to above, reads as follows:

At common law a child born out of wedlock was said to be filius nullius, and to have no heritable blood. These expressions are of course figurative, and meant no more than that certain legal disabilities were attached to his status, one of which was his lack of capacity to inherit from his father or his parents' kindred. There can be no "Every illegitimate child is an heir of the doubt that the Legislature could remove person who, in writing, signed in the presence those disabilities. The right of inheritance of a competent witness, acknowledges himself to be the father of such child; and in all cases is of legitimate and illegitimate children alike an heir of his mother; and inherits his or her is a creature of law, and can be changed by estate, in whole or in part, as the case may be, the Legislature at any time and to any exin the same manner as if he had been born in tent. When the law provides means for lawful wedlock; but he does not represent his father or mother by inheriting any part of the making legitimate a child born out of wedestate of his or her kindred, either lineal or col- lock, it changes the status of that child, and lateral, unless, before his death, his parents shall in the absence of special provision to the have intermarried, and his father, after such contrary, he thenceforth comes within the marriage, acknowledges him as his child, or adopts him into his family; in which case such provisions of the laws relating to legitimate child and all the legitimate children are con- children. Thereafter a child so legitimated sidered brothers and sisters, and on the death is included in the designation "child" or of either of them, intestate, and without issue,"children" when those words refer to a child the others inherit his estate, and are heirs, as herein before provided, in like manner as if all the children had been legitimate; saving to the father and mother, respectively, their rights in the estates of all the children in like manner as if all had been legitimate."

or children legitimately born; and he is no longer included in the designation "illegitimate child" when that term is used in a statute, unless it is obvious that such words are intended by the Legislature to include one who, though now legitimate, was former

are self-evident. Of what avail is it to have

In the brief of appellants there is to be found an exhaustive and able analysis clause by clause of this section, by which is demon-ly illegitimate. We think these propositions strated beyond doubt that the part of the section which we have italicized gives only a limited right of succession by representation, to wit, the right to succeed to the estate of deceased brothers and sisters, and does not confer the right to succeed to the estate of a grandmother. And it is the contention of appellants that legitimated children come within the terms of this section of the Code, not been changed and never can be. If any and that their rights of succession are gov-mains, and all that the law can do and all stigma attaches to that condition it still reerned by it.

We cannot agree with the view that the scope of section 1387 extends to legitimated children. We are of the opinion that this section has nothing to do with the rights of children who, though born out of wedlock, have become legitimated by compliance with section 215 or section 230 of the Civil Code. Those two sections read respectively as follows:

"Sec. 215. A child born before wedlock becomes legitimate by the subsequent marriage of its parents."

"Sec. 230. The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption."

We think it quite clear that compliance with the terms of either one of these sections makes a child born out of lawful wedlock legitimate; that, as stated in section 230, he is legitimate for all purposes; and that, as a legitimate child, his rights of in

legitimated a child if he still labors under the disabilities of his former condition? If he has not acquired the rights by law given to, and become subject to the duties imposed upon, his new condition, there has been no change at all, for it is obvious that the fact that he was born out of wedlock has

it seeks to do is to remove the disabilities attached to the condition. We freely grant that the Legislature can limit the extent to which the disabilities of an illegitimate child are removed; that although it has granted legitimacy in general terms, it can still perpetuate former disabilities or create

new ones;

so that, in a statute granting rights of succession to the property of intestates a discrimination may still be made against persons legitimated by statute. It is the claim of appellants that this is in fact what has been done in section 1387 by that part of the section which we have italicized. A reading of that section without reference to its history lends much color to this contention, but a consideration of that history will make it apparent that the section deals only with the rights of children born out of wedlock who have never been legitimated. Its provisions first appeared in the law of this state in a statute passed in 1850 (Stats. 1850, p. 219), where, as section 2 thereof, we find it almost word for word. At that time there was no method known to our law

This is perhaps the most liberal of all enactments removing the disabilities of children born out of wedlock; but under the argument of appellants a child made legitimate by compliance with the requirements of this section has not even the rights of succession that the statute of 1850 (re-enacted as section 1387, Civ. Code) conferred upon illegitimates complying with its terms, for the mere marriage of the parents of the illegitimate was not sufficient to confer even those limited rights; there was the further requirement that the father acknowledge the child and adopt him into his family.

of legitimating a child born out of wedlock; [ edge him, receive him into his family, or and the provisions contained in said section otherwise treat him as a legitimate child. 2-and which are relied upon by appellants as limiting the right of succession of legitimated children-had only as their effect to confer upon illegitimates the limited right of succession there given, and did not purport to change their condition of illegitimacy. They remained illegitimate, and received those limited rights of succession as such. This statute of 1850 remained in force until March 31, 1870, when it was repealed: but upon the adoption of the Civil Code, taking effect on January 1, 1873, we find section 2 of said statute reappearing almost word for word as section 1387 of said Code. Being merely a re-enactment of an old statute it must, upon familiar principles, be given the same meaning and effect as it originally had. Upon its original enactment it merely conferred certain limited rights of inheritance upon illegitimates complying with certain conditions, and did not purport to make them legitimate or to remove their disabilities in toto. Simultaneously with section 1387 there appeared in the Civil Code, section 230, being itself a re-enactment of section 9 of an act of the Legislature approved March 31, 1870. Stats. 1869–70, p. 530. Said section 9 had provided for the first time a method for making legitimate by law children born out of wedlock. Section 230 declares that compliance with its provisions makes the child who was theretofore illegitimate legitimate for all purposes. Being legitimate for all purposes it became in the eyes of the law a legitimate child with all the rights conferred by law upon legitimate children, including that of inheritance under the provisions of section 1386 of that Code. The legislation contained in section 9 of the act of March 31, 1870, and re-enacted as section 230 of the Civil Code, was a radical departure from existing law. It may be said to have inaugurated a new era in the rights which society accorded to children born out of wedlock. A note to the section (Civ. Code, Deering, 1915) states that it was based on Field's

draft, New York Civil Code, section 116. Stats. 1869-70, p. 531, § 9. Speaking of it

our Code commissioners said:

"This provision, like the rest, is new, but is so manifestly just, and the present state of the law so unmerciful to innocent children, that it is presumed that no objection will be made to the change.

*

*

At the session of the Legislature following the adoption of the Codes section 215 of the Civil Code was enacted. It was but the incorporation into the Code of a provision of law which had existed as section 8 of the Act approved March 31, 1870, already mentioned. The terms of that section are set forth above; and it will be seen that it provided that the mere marriage of the parents of an illegitimate child legitimated him. It was now no longer necessary, as required by section 230, that the father publicly acknowl

Nor, under the construction of the statutes concerning legitimacy contended for by appellants, would an illegitimate child legiti mated by section 215, Civil Code, have any right to succeed to the estate even of his father, for under that construction his rights of inheritance being exclusively governed by section 1387, it would be necessary that the father acknowledge in writing his paternity of the child-a condition not required by section 215. Thus we would have a case where a child made legitimate by statute is incapable of inheriting from his own father, much less from his father's kindred, although by the provisions of section 1388 of the Civil Code both the father and the father's kindred are given the right to succeed to his estate. If the construction of the law contended for by appellants were correct we would have the anomalous condition that 60 or 70 years after the original enactment of section 1387 in 1850, and in spite of the increasingly liberal and humane tendency of legislation in respect to illegitimate children, a child to-day, made legitimate by statute, has more restricted rights of succession than an illegitimate child in the year 1850.

It is suggested that sections 215 and 230 are mere statutes of status, and confer no must be sought in the sections of the Code rights of succession, and that those rights true; but the fallacy of appellants' position dealing with succession. That is perfectly is that they ignore the changed status of the respondents, and seek to relegate them to section 1387 dealing with the rights of succession of illegitimates, and to exclude them from section 1386, which deals with the rights of legitimates.

[7] If sections 230 and 1387 were concurrent and conflicting legislation, there would be some force in the contention that the rights of succession of a child legitimated by section 230 should be governed by section 1387, for it could be argued that as the same requirements are found in both sections, it was intended that although on the one hand compliance with them conferred legitimacy, yet when it came to the question of succession such compliance did not put the illegitimate in the situation of a legitimate, but

only had the limited effect stated in section a common-law meaning; and its meaning in1387, and that their apparent conflict should cludes all children upon whom has been conferbe reconciled in that way. But the re-enact-red by law the capacity of inheritance." ment of the provisions of section 1387 did not make them concurrent legislation with section 230. The rule in this regard is that: "Where there are two conflicting sections in a Code or other compilation of statutes, that section prevails which is derived from a source which may be considered as the latest expression of the lawmaking power, without regard to the relative position of such sections in the Code." 26 Am. & Eng. Ency, of Law, 735, citing Lamar v. Allen, 108 Ga. 158, 33 S. E. 958.

[9] Finally, the contention is made that the respondents do not come within the terms either of section 215 or section 230, for the reason that these, sections, as the appellants claim, refer only to minor children. It is true that in the Estate of Pico, 56 Cal. 413, section 230 was thus limited in its effect; but the reason it was so limited, as is apparent from the opinion in that case, was that the section comprises part of a chapter of the As we have seen, the provisions of section Code on adoption, and the language of the 230 were later legislation than that contained section is that the illegitimate child, by the in section 1387; and the latter section means acts therein enumerated, is "adopted" as a no more and can be given no other construc- legitimate child, and thereby becomes legitition than it theretofore had, when its effect mate. As the provisions of the Code relating was solely to give certain restricted rights to adoption apply only to minors, the court of inheritance to illegitimates as such. It is concluded that the section could not apply obvious that there is no conflict between such to one who had attained his majority because legislation and a subsequent law conferring he could not be adopted. But section 215 legitimacy, even though incidentally the same is not included in the chapter on adoption; conditions are made sufficient to confer legiti-and the reasoning in the Estate of Pico, supmacy which formerly only gave restricted ra, has no application to it. Its language rights of inheritance. makes no distinction between minors and Moreover, the proposition that section 1387 majors, and there is nothing in the reason or is not to be regarded as a limitation upon sec-necessity of the enactment which would wartion 230 has been directly decided by the rant this court in confining its application Supreme Court of this state in the case of to children who had not attained their majorIn re Jessup, 81 Cal. 408, 447, 21 Pac. 976, ity. 980 (6 L. R. A. 594) wherein it is said: "We cannot agree to the proposition that the provision contained in section 1387 of the Civil Code, that every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child,' is a limitation upon section 230, and excludes an illegitimate child, adopted as provided in the latter section, from the inheritance. If so, section 230 would be deprived of much of its force. Section 230 expressly provides that upon the adoption of a child as therein provided, it shall 'be deemed to be legitimate for all purposes.' [8] That the words "children" and "law-ARDS, J. ful issue" when found in statutes of succession are not to be confined to their strict common-law signification was decided by our Supreme Court in the Estate of Wardell, 57 Cal. 484, 491, where it is said:

**

It results from what we have said that the respondents, having been legitimated by the subsequent marriage of their parents, come within the terms of section 1386 of the Civil Code, and that within the meaning of that section they are "lawful issue" and take by representation.

The portion of the judgment appealed from is therefore affirmed.

We concur: LENNON, P. J.; RICH

(32 Cal. App. 286) WOLF et al. v. GALL et al. (S. F. 7217.) (Supreme Court of California. Feb. 7, 1917.) BASTARDS 101-RIGHT TO INHERITANCELINEAL KINDRED STATUTES "ILLEGITI MATE CHILD."

"If courts were now to restrict the word to its common-law meaning, all children born of an unlawful marriage, all children by adoption Civ. Code, $ 215, provides that an illegitior acknowledgment of their father, and all chil-mate child becomes legitimate by the subsequent dren whose parents intermarried subsequent to marriage of its parents, and section 230 protheir birth, would be excluded from rights of vides that when the father of an illegitimate inheritance or succession. But by statute. child publicly acknowledges it as his own or the offspring of marriages null in law (section adopts it into his family, it is deemed for all 84, Civ. Code), children born out of wedlock purposes legitimate. Section 1386 prescribes whose parents subsequently intermarried (sec- rights of inheritance of legitimate children, and tion 215, Id.), and children by acknowledgment section 1387 provides that an illegitimate child or adoption of their father (sections 224, 227. does not represent his father or mother by in228, and 230, Id.), are all legitimate. These, al- heriting any part of the estate of his or her though incapacitated at common law from suc- kindred, lineal or collateral, unless before his ceeding to any rights of their father, are re-death his parents shall have intermarried, and garded for all purposes as legitimate from the his father thereafter acknowledges him or adopts time of their birth. 3/ Hence the term him into his family, in which case such child and 'children,' as used in section 1307 of the law of all legitimate children are considered brothers succession, must relate to status, not to origin and sisters, and section 1388 provides for suc-to the capacity to inherit, not to the legality of cession to the property of an illegitimate child. the relations which may have existed between Held, that the term "illegitimate child." as those of whom they may have been begotten. used in the last two sections, includes illegitiThe word has, therefore, a statutory and not mate children who have been legitimated: that

[Ed. Note.-For other cases, see Bastards, Cent. Dig. §§ 252, 253.

For other definitions, see Words and Phrases, First and Second Series, Illegitimate Child.] Melvin and Lawlor, JJ., dissenting.

In Bank. Appeal from Superior Court, City and County of San Francisco; George A. Sturtevant, Judge.

section 1387 does not provide any rule contrary | adopts him into his family, to represent his to section 1386 as to children legitimated by father or mother by inheriting from the intermarriage or acknowledgment, so that such children inherited a share of the estate of the kindred of either, either lineal or collateral, mother of their deceased father. just as a legitimate child would inherit under section 1386, Civil Code. We do not believe that the succeeding clause, commencing with the words "in which case such child and all the legitimate children are considered brothers and sisters," etc., should be construed as a limitation on this right. This cause was manifestly intended to remove all doubt as to the right of brothers and sisters to inherit from each other where one of them is legitimated as provided in the preceding part of the section, and gives the legitimated child a right of direct inheritance from brothers and sisters, in addition to the right of inheritance by representation conferred by the preceding clause. The result is the same as that reached by Mr. Justice Kerrigan in the opinion of the District Court of Appeal, viz. that section 1386 does apply in this case, and that under its provisions respondents are, in view of the facts, heirs of Tobe Funkenstein.

Action by Arturo Wolf and Maria Julia Wolf against Charles Funkenstein Gall and others. From a judgment of the District Court of Appeals (163 Pac. 346), affirming part of judgment for plaintiff on appeal by defendants, defendants apply for hearing in the Supreme Court. Application for hearing denied.

See, also, 162 Pac. 115; In re Funkenstein's Estate, 170 Cal. 594, 150 Pac. 987.

J. R. Pringle, Edgar D. Peixotto, and Leon Samuels, all of San Francisco, for appellants. George Lezinsky and Theodore A. Bell, both of San Francisco, for respondents.

PER CURIAM. We concur in the conclusion of the District Court of Appeal as to the capacity of the respondents to inherit from Tobe Funkenstein, through their deceased father, Newman Wolf, but in denying the application for a hearing in this court we deem it proper to say that we are not entirely in accord with all the reasoning by which that conclusion is reached by that court. We cannot agree either that section 1387, Civil Code, has no application to children situated as are the respondents, or that, fairly construed, that section excludes respondents from taking a share of the estate of the mother of their deceased father. To our minds the term "illegitimate child," as used in both sections 1387 and 1388, includes illegitimate children who have been legitimated, and in so far as they lay down rules of succession contrary to the general rules found in section 1386, Civil Code, must prevail as to any child born illegitimate. See Estate of De Cigaran, 150 Cal. 682, 89 Pac. 833. But, in our opinion, section 1387 should be construed as not providing any rule contrary to section 1386 in so far as children situated as respondents are concerned. When the section expressly provides, as it does, that an illegitimate child "does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family," it by necessary implication recognizes the right of one whose parents intermarry and whose father, after such marriage, acknowledges him as his child or

The mere fact that a deed recited the property was subject to mortgage, but did not recite grantee's personal liability, did not relieve him from assumption of such liability, nor prevent equities against him from being asserted against one who purchased notes after maturity without inquiry, though knowing his transferor had once owned the property subject to the mortgage, and took assignments of the mortgage and the trust deed supporting the notes, since the promise by the mortgagor's grantee personally to be answerable for the payment of the mortgage may appear and bind the grantee because of a clause in the deed or by a separate written instrument, which need not be executed with the formalities necessary to a deed, and which, if preceding the execution of the deed of conveyance, is not so merged in the latter that the omission of the assumption clause from the latter will release the buyer from his prior cove

nant.

Cent. Dig. §§ 740, 741, 751, 753, 755.]
[Ed. Note. For other cases, see Mortgages,

2. FRAUDS, STATUTE OF 18(3)-MORTGAGES
AGREEMENT OF PURCHASER OF
280(3)
MORTGAGED PROPERTY TO BE LIABLE FOR
DEBT.

The agreement of the purchaser of property subject to mortgage to be personally liable for the debt may rest wholly in parol, and is not

within the statute of frauds.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 29; Mortgages, Cent. Dig. §§ 742, 744.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

PAYMENT-EFFECT-STATUTE.

3. MORTGAGES 318-PURCHASE OF EQUITY | denced by a note, payable in three years, OF REDEMPTION ASSUMPTION OF DEBT bearing date August 20, 1908, secured by a If the purchaser of an equity of redemption trust deed in which L. W. Clark was named has assumed payment of the debt, or otherwise as trustee. On the same day, August 20, made himself personally liable for it, the pay- 1908, the Trauzettels had borrowed $1,000 ment of the debt will extinguish the mortgage, from Mary Holmes Wilson, evidenced by a and he cannot take an assignment of it to him- note payable in three years and supported self, under Civ. Code, § 1473, providing that full performance of an obligation, by the party by a mortgage of even date. The trust deed whose duty it is to perform, or by any other and the mortgage were recorded, the former person, in his behalf, and with his assent, if ac- having priority. Both the mortgage and the cepted by the creditor, extinguishes it. trust deed were upon the north half of said section 19, and the date of their recordation was August 25, 1908.

[Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 956-961.]

4. PAYMENT 52-EXTINGUISHMENT OF OBLIGATION.

The full performance of an obligation by any one for the principal with his assent, if accepted by the creditor, extinguishes the obligation.

[Ed. Note.-For other cases, see Cent. Dig. § 136.]

Payment, Department 2. Appeal from Superior Court, Riverside County; F. E. Densmore, Judge.

Suit by O. S. Dodds against A. Spring and others. From a judgment for plaintiff, the named defendant appeals. Judgment affirmed.

Rupert B. Turnbull, Bennett, Turnbull & Thompson, Flint, Gray & Barker, and Tobias R. Archer, all of Los Angeles, for appellant. Ralph E. Swing, of San Bernardino, for respondent.

MELVIN, J. Plaintiff sued to foreclose a mortgage made by G. O. Trauzettel and his wife, Georgia A. Trauzettel. The date of the said mortgage was December 1, 1908, and it was intended, as the court found, to cover principal and interest representing two loans evidenced by promissory notes, one dated December 1, 1908, for the principal sum of $1,500 due three years thereafter, and the other for $1,160, bearing date April 1, 1909, due two years later. By the terms of the mortgage it apparently covered the west half of section 19, township 2 south, range 1 west, S. B. B. and M., in Riverside county, and was recorded April 8, 1909. The complaint in this action was filed June 30, 1911, and a lis pendens was placed of record on that day. Judgment was given in favor of O. S. Dodds, the plaintiff, and this appeal is by A. Spring, one of the defendants, who claimed rights in the property superior to those of the plaintiff.

Subsequently William A. Kjellman and G. O. Trauzettel entered into correspondence looking to the exchange of the latter's property in California for the former's land in Texas. There was an escrow agreement in writing whereby William A. Kjellman assumed and agreed to pay incumbrances aggregating $8,920 upon the property in Riverside county and other land. The transaetion involving the exchange of the lands in Texas for those in California was consummated, and on December 12, 1910, a deed bearing date October 10, 1910, was placed of record. The deed recited that the property conveyed (which was the north half and the southeast quarter of section 19) was subject to the note for $3,000 and the trust deed in favor of Galli, the note for $1,000, and the mortgage to Mary Holmes Wilson. It also specified liens of a mortgage dated September 16, 1908, to secure the payment of a note of $1,120 in favor of O. S. Dodds and another dated December 1, 1908, to secure a note of $1,500, also in favor of the plaintiff. The plaintiff did not seek to foreclose the mortgage dated September 16, 1908, but, as shown by the testimony and found by the court, the note for $1,120 was merged into and paid by the later note for $1,500.

The court also found that when the mortgages to plaintiff were made the Trauzettels owned only the north half of section 19, and that their intention was to mortgage that part of the section. By an amendment to his pleadings plaintiff had asked for a reformation of the contract in that particular, and by the judgment it was reformed as prayed.

Further findings were to the effect that William Kjellman paid to Galli and Wilson the sums due them, and thereby satisfied their claims; that after the filing of the lis pendens in this case O. J. Kjellman executIt appeared from the findings of the court ed and delivered to A. Spring her note for that G. O. Trauzettel acquired title to the $3,000, secured by a mortgage on the northnorth half of said section 19 prior to August east quarter of section 19; that at that 20, 1908, and remained such owner until Oc-time Spring had no notice of the fact that tober 10, 1910. On December 10, 1910, he plaintiff's mortgage was intended to cover parted with his interest in the north half of said section together with other property by a grant deed to William A. Kjellman, one of the defendants in this action.

Prior to the making of the notes and the mortgage in favor of Dodds, the Trauzettels had borrowed from John Galli $3,000, evi

the north haif of said section; that on November 21, 1912, William A. Kjellman delivered the Galli note and the accompanying trust deed and the Wilson note to defendant, A. Spring, and assigned the Wilson mortgage to said Spring, and that both said notes were then past due; that they had been