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-When property vests.-Immediately upon the death of an ancestor his estate, both real and personal, vests at once by the

single operation of law in the heir.—Estate of Barrett, 6 Cof. Prob. Dec. 398.

TITLE VII.

SUCCESSION.

§ 1405. Escheat property. Recovery.

$ 1386.

deceased brothers and sisters take no part

of the estate. -Estate of Nigro, 172 Cal. 474, SUCCESSION AND DISTRIBUTION.

156 Pac. 1019. 1-3. Construction Subdivision 1.

8. -Subdivision 6.--Sections 1389, 1390, 4. — Subdivision 2.

and 1393 control the meaning of the words 5–7. -Subdivision 3.

“in equal degree.”—Estate of Nigro, 172 Cal. 8-11. Subdivision 5.

474, 156 Pac. 1019. 12, 13. -Subdivision 8.

9. Upon the death of a person intestate 1. Construction—Subdivision 1.-Upon the leaving her surviving neither issue, husband, death of a widow twice married, who left father, mother, brother nor sister, the rights a surviving child by each marriage, prop- of the parties entitled to inherit are goverty formerly the separate property of her erned by subdivision 5 of section 1386 of the last husband but conveyed to her by deed Civil Code, which provides that "the estate of gift, descends in equal shares to her must go to the next of kin in equal degree"; children under this subdivision, and section and the meaning of the words "in equal de1394 has no application whatever.-Estate of

gree" is controlled by the definitions conMcKenna, 168 Cal. 339, 143 Pac. 605.

tained in sections 1389, 1390 and 1393 of the 2. The word “issue" does not limit the Civil Code.-Estate of Nigro, 172 Cal. 474, right of inheritance to the natural children 156 Pac, 1019. only but is used in the same sense

as

10. While subdivision 5 of section 1386 "child" or "children" and includes an adopted of the Civil Code is silent on the question child. It necessarily follows that an adopt

whether the descent there provided is to be ing parent must inherit from the adopted

per capita or by right of representation, child, to the exclusion of the parents by when the language of the entire section is blood.—Estate of Darling, 173 Cal. 221, 159 considered the conclusion is inevitable that Pac. 606.

the legislature intended that the descent 3. Children born out of wedlock who should be per capita.-Estate of Nigro, 172 have been legitimated by the subsequent Cal. 474, 156 Pac. 1019. marriage of their parents come within the 11. If a widower dies intestate leaving terms of section 1386 of the Civil Code, and collateral relations and one child, a daughwithin the meaning of that section they are ter, and she, before the estate is adminis"lawful issue" and take by representation.

tered, dies intestate without issue, leaving Wolf v. Gall, 32 Cal. App. 286, 163 Pac. 346. neither father, mother, brother nor sister,

-Subdivision 2.-Adopting parents in- the estate vests in her surviving husband herit from an adopted child, to the exclusion as her heir under subdivision 5 of section of the parents by blood, and construing the 1386 of the Civil Code.—Estate of Barrett, 6 words "father" or “mother" in harmony Cof. Prob. Dec. 398. with the adoption statutes they must be

12. -Subdivision 8.-This subdivision is held to include the father or mother by

applicable only to cases of intestacy.-Esadoption.-Estate of Darling, 173 Cal. 221, tate of Wenks, 171 Cal. 607, 154 Pac. 24. 159 Pac. 606.

13. The apparent object of this subdivi5. Subdivision

The
children

sion is to provide for the inheritance of the grandchildren of a deceased brother or sis

property equally by the respective families ter do not inherit from the ancestor, unless

of the two spouses by whose efforts it was a brother or sister of the ancestor has sur- accumulated. The section applies not only vived him.-Estate of Nigro, 172 Cal. 474,

to community property in kind as existing 156 Pac. 1019.

at the death of one spouse but also to that 6. Upon a person dying intestate leaving

into which it may be converted subsequently, surviving at her death, as her next of kin,

and to the rents, issues and profits thereof.children and grandchildren of deceased sis- Estate of Brady, 171 Cal. 1, 151 Pac. 275. ters and a brother, the only persons entitled to inherit are the children of the deceased

$ 1387. sisters and brother.-Estate of Nigro, 172

INHERITANCE BY ILLEGITIMATE Cal. 474, 156 Pac. 1019. 7. Upon the death of a person intestate

CHILDREN. leaving surviving neither issue, husband,

1. As to history of section. father, mother, brother nor sister, the only

2–7. Construction. persons in equal degree of kindred to the

8. -Not in conflict with section 230. deceased who can inherit from her are the

9, 10. Evidence-Admissibility. surviving children of the deceased brothers 1. As to history of section.—The proviand sisters, and the grandchildren of such sions of this section first appeared in the

3. —

or

law of this state in a statute passed in 1850 cording to the law in force at the date of (Stats. 1850, p. 219), where, as section 2 the latter's death.-Estate of Loyd, 170 Cal. thereof, we find it almost word for word. 85, 148 Pac. 522. At that time there was no method known 5. The rights of an illegitimate child to our law of legitimating a child born out under an acknowledgment made in the year of wedlock; and the provisions contained in 1861 are governed by section 1387 of the said section 2and which are relied upon Civil Code, not by the statute of 1850, which by appellants as limiting the right of suc- was in force when the acknowledgment was cession of legitimated children-had only as signed and which had been decided to retheir effect to confer upon illegitimates the quire a strict construction.-Estate of Loyd, limited right of succession there given, and 170 Cal. 85, 148 Pac. 522. did not purport to change their condition

6. The scope of this section does not exof illegitimacy. They remained illegitimate, tend to legitimized children. It has nothing and received those limited rights of Suc

to do with the rights of children, who, cession as such. This statute of 1850 re

though born out of wedlock, have become inained in force until March 31, 1870, when

legitimated by compliance with sections 215 it was repealed; but upon the adoption of

or 230. It deals only with the rights of the Civil Code, taking effect on January 1, children born out of wedlock who have 1873, we find section 2 of said statute reap

never been legitimated. — Wolf v. Gall, 32 pearing almost word for word as section

Cal. App. 286, 163 Pac. 346. 1387 of said code. Being merely a re-enact

The right of inheritance of legitimate ment of an old statute it must, upon familiar

and illegitimate children is alike a creature principles, be given the same meaning and

of law, and can be changed by the legislaeffect as it originally had. Upon its original

ture at any time and to any extent. When enactment it merely conferred certain lim

the law provides means for making legitiited rights of inheritance upon illegitimates

mate a child born out of wedlock, it changes complying with certain conditions, and did

the status of that child, and in the absence not purport to make them legitimate or to

of special provision to the contrary, he remove their disa bilities in toto. Simulta

thenceforth comes within the provisions of neously with section 1387 there appeared

the law relating to legitimate children. in the Civil Code, section 230, being itself a

Thereafter a child so legitimated is included re-enactment of section 9 of an act of the

in the designation "child" or "children" when legislature approved March 31, 1870 (Stats.

those words refer to a child or children 1869-70, p. 530). Said section 9 had provided

legitimately born; and he is no longer infor the first time a method for making cluded in the designation "illegitimate child" legitimate by law children born out of wed

when that term is used in a statute unless lock. Section 230 declares that compliance

it is obvious that such words are intended with its provisions makes the child who was

by the legislature to include one, who, theretofore illegitimate legitimate for all

though now legitimate, was formerly illepurposes. Being legitimate for all purposes

gitimate.-Wolf V. Gall, 32 Cal. App. 286, it became in the eyes of the law a legitimate

163 Pac. 346. child, with all the rights conferred by law

8. -Not in conflict with section 230.upon legitimate children, including that of

The provisions of section 230 were later inheritance under the provisions of section

legislation than that contained in section 1386 of .that code.--Wolf v. Gall, 32 Cal. App.

1387; and the latter section means no more 286, 163 Pac. 346.

and can be given no other construction than 2. Construction. This section must be it theretofore had, when its effect was solely liberally construed, inasmuch as it was to give certain restricted rights of inherpassed with the kindly purpose of relieving itance to illegitimates as such. It is obchildren to some extent from the harsh con- vious that there is no conflict between such sequences of illegitimacy. The term "mar- legislation and a subsequent law conferring riages null in law" is not limited only to legitimacy, even though incidentally the marriages subject to an action for annul

same conditions are made sufficient to conment on one of the grounds mentioned in fer legitimacy which formerly only gave section 82, but applies to an attempted mar- restricted rights of inheritance.-Wolf v. riage contracted in good faith on the part Gall, 32 Cal. App. 286, 163 Pac. 346. of at least one of the parties and there is a 9. Evidence Admissibility.-Statements concurrence of the elements defined in sec

made by one at the home of a child's mother tion 55.- Estate of Shipp, 168 Cal. 640, 144 to the servants of the mother that he was Pac. 143.

the father of the child are admissible for 3. The offspring of a marriage for which

the purpose of proving the paternity of the no license was secured but which was other- child.-In re Baird, 173 Cal. 617, 160 Pac. wise legally solemnized may inherit as the 1078. legitimate child of its father under this sec

10.

In a proceeding for partial distribution.-Estate of Shipp, 168 Cal. 640, 144 Pac. tion instituted by an alleged illegitimate 143.

child of the deceased, who claimed to have 4. Section 1387 of the Civil Code is simply been legally adopted, and whose application a statute of succession or inheritance, and was opposed by a denial of all the facts since no right vests in a presumptive heir relating to such adoption, it is error to exuntil the death of the ancestor, the persons clude statements made by the deceased to entitled to succeed must be ascertained ac- the attending physician at the time of the death.--Estate of Spreckels, 6 Cof. Prob. Dec, 375.

birth of the petitioner declaring his paternity.- Estate of Baird, 173 Cal. 617, 160 Pac. 1078.

88 1395, 1396.

1. Advancements - Construction.—Under the Civil Code any advancement made by a decedent to a child or other heir is a part of the estate of the decedent for the purposes of division and distribution thereof among his heirs, and must be taken by the heir toward his share of the estate.-Estate of Spreckels, 6 Cof. Prob. Dec. 375.

2. An intent to alter a pre-existing law is not to be inferred from a mere change of phraseology in a revision of prior statutes. Under the English statute, and under the statutes of many states of the Union, the rule is well settled that the doctrine of advancements is applicable only in cases of total intestacy. An examination of the history of the code and a comparison of code contexts show that the California codifiers did not intend to make such a distinction in the use of the word "intestate" in the old statute, and the word "decedent," in sections 1395-1399 of the Civil Code, as would justify the court in holding that it was the purpose to change the well-settled rule that the doctrine of advancements can be invoked only in cases of total intestacy. Therefore the doctrine of advancements can not be invoked in cases of partial intestacy:Estate of Spreckels, 6 Cof. Prob. Dec. 375.

$ 1397.

1. What are advancements Construction. -Where the entries in the books of account kept by the testator merely showed that he had given some children a monthly allowance and had credited them with a like amount so that according to the books the accounts were virtually closed, the accounts are not admissible as evidence of advancements under this section.-Estate of Vanderhurst, 171 Cal. 553, 154 Pac. 5.

2. An advancement is a provision made by a donor for a child or other heir during the donor's lifetime, by gift of property on account of the share to which the heir would be entitled as heir after the donor's

3. Under the code such advancement can be created only by a writing showing an intent of the donor to create an advancement; and such intent must be exhibited in one of three ways: It must appear in the instrument of transfer; or it must be acknowledged in writing by the heir, as an advancement; or it must be charged, in writing, by the donor, as an advancement.-Estate of Spreckels, 6 Cof. Prob. Dec. 375.

4. To give the character of an advancement to a gift, the intent must appear by a writing made contemporaneously with the gift. Such character can not be imparted, ex post facto, by a writing at a later date.Estate of Spreckels, 6 Cof. Prob. Dec. 375.

5. A donor may change an advancement into an absolute gift without the knowledge or consent of the donee, but he can not change an absolute gift into an advancement without the consent of the donee in writing.-Estate of Spreckels, 6 Cof. Prob. Dec. 375.

6. Where a parent in his lifetime had made large gifts to two of his sons, and in his will made several years later declared: "I make no provision in this will for my sons J. and A., for the reason that I have already given to them a large part of my estate,"_such declaration does not charge such gifts as advancements under the code. Where a donor has made an absolute gift there is no method in which he can make it effective as an advancement short of a legally executed will disposing of his property.-Estate of Spreckels, 6 Cof. Prob. Dec. 375.

88 1398, 1399.
See construction, ante, $$ 1395, 1396.
§ 1401.

1. Community property-Rights of surviving husband.—The husband does not take the community upon the death of the wife by succession, but he holds it all from the moment of her death as though acquired by himself.--Estate of Klumpke, 167 Cal. 415, 139 Pac. 1062.

8 1405. ESCHEAT PROPERTY. RECOVERY. Whenever any person dies leaving any property in this state not disposed of by will, and there are no persons entitled to succeed thereto under the laws of this state, the same shall escheat to the state as of the date of the death of the decedent. The property or proceeds of any estate deposited in the state treasury after final decree of distribution or judgment of the superior court by reason of the failure of heirs to make claim thereto may be recovered upon judgment of the superior court or order of the state board of control as provided in the Code of Civil Procedure.

History: Enacted March 21, 1872; founded upon $ 1 Act April 19, 1856, Stats. 1856, p. 137; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 406; act held unconstitutional, see history, Kerr's Cyc. C. C., § 4; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 609; May 5, 1917, Stats. and Amdts. 1917, p. 255. In effect July 27, 1917.

8 1410.

vester the riparian rights in the stream WATER RIGHTS.

pertaining to the land of the United States

abutting thereon; such appropriation or di1. Amendment of 1911 construed.

version gives no right as against other land 2. Appropriation-As to what constitutes.

owners.—Duckworth v. Watsonville Water 3, 4. —Rights acquired by.

& Light Co., 170 Cal. 425, 150 Pac. 58. 5-9. Riparian ownerg-Rights of.

5. Riparian owners-Rights of-A ripa1. Amendment of 1911 construed.—The rian proprietor may, as against lower proamendment of 1911 whereby all the water prietors, divert water above his land for use or use thereof within the state is declared thereon, but he can not do this without the to be the property of the people of Califor- consent of the intervening proprietor.-Milnia is not retroactive and can not divest ler & Lux v. Enterprise Canal & L. Co., 169 rights which had theretofore vested. The Cal. 415, 147 Pac. 567. amendment may possibly be effective as a 6. A riparian proprietor's title to the dedication to general public use of any water begins only when it reaches his land riparian rights which the state, at the time and lasts only so long as it is flowing past of enactment, may still have retained by his land. Until it reaches his land he has virtue of its ownership of lands bordering no title whatsoever, and no right other than on a stream-rights in the stream which it the protective right to see that the full flow would have in

common with owners of past his land to which he is entitled is not other abutting land. It could not affect the illegally diminished.—Miller & Lux v. Enterriparian rights of the other owners, nor the prise Canal & L. Co., 169 Cal. 415, 147 Pac. rights of any one claiming under them, nor 567. rights previously acquired from riparian 7. A riparian proprietor is not entitled to owners by prescription, nor rights acquired more water from a stream than is actually from the state prior to that time by appro- put to economic use, to the injury of the priation under the code, in reliance upon freehold of other riparian proprietors.—Milthe implied offer of the state to allow its

ler & Lux v. Enterprise Canal & L. Co., 169 riparian rights to be acquired in that man- Cal. 447, 147 Pac. 579. ner.-Palmer v, Railroad Commission, 167

8. A riparian owner has a vested right to Cal. 163, 138 Pac. 997.

the use of water before his appropriation 2. Appropriation-As to what constitutes.

begins, and his right can not be divested by -An appropriation of water under the code

the mere assertion of an intention to claim does not constitute a grant by the state of a

the water, nor by posting notices of approright to take the water appropriated which

priation or beginning work in pursuance confers upon the appropriator a title or

thereof, nor even by the actual diversion for right to the water superior to private rights,

less than five years, with a view to a future riparian or otherwise, existing at the time

public use, if the water is in the meantime of the appropriation, but its effect is merely

wasted or not applied to public or beneficial to give a preference over a subsequent ap

use.—Turner v. Eastside Canal & Irr. Co., propriator or diverter who takes under no

169 Cal. 652, 147 Pac. 579. right or title, and to fix the date of the

9. The owner of riparian land has the posting of the notice as the inception of the

right to use the water of the stream, and in claim under it.-Duckworth v. Watsonville

order to obtain it, he has the right to go to Water & Light Co., 170 Cal. 425, 150 Pac. 58.

a point on the stream above his lands, with 3. -Rights acquired by.-An appropria

the consent of the abutting and intervening tor under the code may obtain a similar

owners, and there take out the water and right as against riparian rights of the state

conduct it to his land, and as long as he pertaining to any lands which the state

takes in this manner only his reasonable may own along the course of the stream, but

share and uses it only on his riparian land, this right may be thus acquired solely be

he is exercising his riparian rights and cause the statute in section 1410 of the Civil

nothing more.-Turner v. Eastside Canal & Code has so declared, and while this decla

Irr. Co., 169 Cal. 652, 147 Pac. 579. ration binds the state as to its proprietary lands, it does not affect the lands of other

$ 1411. persons, or water rights pertaining to such other lands, and, except as to its riparian

1. Use for which may be appropriatedrights pertaining to lands which it owns

Construction.—The policy of the law bordering upon non-navigable streams, the

quires the highest and greatest possible state has no right to the waters thereof,

duty from the waters of the state in the and consequently can not dispose of any

interest of agriculture and other useful and other rights.—Duckworth V. Watsonville

beneficial purposes. Any actual use in exWater & Light Co., 170 Cal. 425, 150 Pac. 58.

cess of the reasonable requirements is waste 4. While an appropriation or diversion

and can not be held to be a useful and benemade upon lands of the United States gives

ficial purpose.-California Pastoral & Agr. the appropriator or diverter a right to the

Co. v. Madera Canal & Irr. Co., 167 Cal. 78, water as against the United States, it does

138 Pac. 78. so solely because, by the act of Congress of July 16, 1886, the United States declared

$ 1412. such diversion, if recognized by local laws,

Point of diversion.--The right to an should be effectual to confer upon the di- established place of diversion and the right

re

1.

to the water itself are not dependent.Turner v. Eastside Canal & Irr. Co., 169 Cal. 652, 147 Pac. 579.

88 1415, 1416. As to purpose of sections, see post, $ 1418. $ 1418.

1. Purpose of section.—The provisions of sections 1415, 1416, and this section were made to remedy and remove the practical difficulties previously existing in adjudicating the rights of hostile claimants.-Palmer v. Railroad Commission, 167 Cal. 163, 138 Pac. 997.

the contract that he shall sustain the loss of such unpaid instalment then earned, it is necessary that he shall pay the same to the contractor, and neither the issuance of an architect's certificate therefor, nor the reconstruction of the building by the contractor at a stage where the instalment would again be earned, are conditions precedent to the accrual of a cause of action in favor of the contractor against the owner for such instalment.--Ahlgren v. Walsh, 173 Cal. 27, 158 Pac. 748.

$ 1440.

1. When performance excused. Where the purchaser of a billiard table notified the seller that he had revoked and countermanded the order, it is unnecessary for the seller to make a tender of the table before bringing suit for the purchase price.-Passow & Sons v. Harris, 29 Cal. App. 559, 156 Pac. 997.

§ 1426m.

1. Assessment work.-A mining claim is possessory only in character, where held by location simply, and the performance of the annual work necessary to entitle the locator to continue in possession. It is distinct and apart from a fee simple or absolute title to the land, and is so considered and treated by those who have occasion to deal therewith.-Trinity Gold etc.

Co.

V. Beaudry, 223 Fed. 739.

§ 1448.

1. Optional agreement.-A person who is under obligation to perform one or two alternative things, namely, to deliver property or to pay money, becomes bound to pay the money alone, after the time for the delivery of the property has elapsed.—Beckwith v. Sheldon, 168 Cal. 742, 145 Pac. 97.

2. Where by the terms of the contract the defendant has an option to pay in specific chattels and does not exercise his option, the law holds he is bound to pay in money.-Gillin v. Hopkins, 28 Cal. App. 579, 153 Pac. 724.

8 1436.

1. Conditions precedent. While it is true that conditions precedent are not favored and are to be strictly construed against one seeking to avail himself of them, it is equally true that parties to a contract may, if they think proper, agree that any matter shall be a condition precedent, and if words are used in the contract so precise, express and strong that such intention only is compatible with the terms employed, a court will give effect to such declared intention of the parties.-Schwab v. Bridge, 27 Cal. App. 204, 149 Pac. 603.

2. Where a building contract provides, in addition to a clause requiring the certificate of the architect as a condition to the payment of any instalment on the contract price, that if the building before completion be wholly destroyed, the loss occasioned thereby shall be sustained by the owner to the extent that he has paid instalments thereon, or that may be due under the fifth clause of the contract (requiring architect's certificate), and the loss occasioned thereby to be sustained by the contractor shall be for the uncompleted portion of the work upon which he may be engaged at the time of the loss, and for which no payment is yet due under the fifth clause of the contract, if there is a total destruction, the owner must sustain the loss of all instalments of the contract price that were due at that time and which had then been paid by him, and also any instalment which had been earned and was then due, in the sense that it was owing, and which was not then paid, and in order to carry out the intent of

8 1459.

1. Negotiable instruments-Assignability. -The old common-law rule with reference to assignability of things in action has long since been abrogated and is succeeded by a rule more liberal, which, while it permits securities to pass from hand to hand in business transactions, does not make them negotiable to the extent of cutting off the equities of their makers. The modern rule is that formulated in this section.-Kohn v. Sacramento Electric, Gas & R. Co., 168 Cal. 1, 141 Pac. 626.

§ 1460.

1. Covenants running with land.-A provision in a deed conveying a portion of a lot that the grantor will never himself erect any structure upon the portion not conveyed within five feet of the conveyed portion during his ownership, and to give preference to the grantee to purchase the reserved portion in the event of a bona fide offer being made therefor by some intending purchaser, is a purely personal covenant which does not run with the land and does not place any sort of compulsion on the successors of the grantor.-Pythian Castle Assn. v. Daroux, 172 Cal. 510, 157 Pac. 594.

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