Summary
In Ingram's Estate v. Clough, 78 Cal. 586, 21 P. 435, 12 Am.St.Rep. 80, that court concluded that the second subdivision was meant to apply only to cases where there is a surviving brother or sister and children of a deceased brother or sister.
Summary of this case from Sweetland v. TransbergOpinion
Department Two
Appeal from a decree of the Superior Court of the city and county of San Francisco distributing the estate of a deceased person.
COUNSEL:
The nephews and nieces of the decedent were entitled to inherit. (Civ. Code, sec. 1386, subd. 2, 1403.)
James M. Seawell, for Appellants.
Henry I. Kowalsky, and Morris C. Baum, for respondent.
The husband inherited the entire estate. (Civ. Code, sec. 1386, subd. 5; Estate of Linehan, Myrick's Rep. 83.) The amendment of the decree was properly allowed. (Estate of Langan , 74 Cal. 353; Carpenter v. Superior Court , 75 Cal. 596.)
JUDGES: McFarland, J. Thornton, J., and Sharpstein, J., concurred.
OPINION
McFARLAND, Judge
Hannah G. Ingram died intestate, and left surviving her John W. Ingram, her husband, but left no issue, and no surviving father or mother, brother or sister. There were living, however, at the time of her death certain children and grandchildren of a deceased sister, who are the appellants herein. A decree of distribution was rendered May 10, 1888, in the court below, by which one half of the estate was distributed to the said surviving husband (or rather to his assignee Kowalsky) and the other half to the said children of the deceased sister. Afterward, upon due notice and hearing, on July 18, 1888, the decree was amended so as to distribute the whole of the estate to the said assignee of said surviving husband. From this amendment of the decree the appeal herein is taken.
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 any difficulty of construction whatever. It is as follows: "If the decedent leave a surviving husband 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.
2. We think the court had power to modify the decree upon the ground stated in the motion to amend, and that the power was properly exercised.
The judgment of the court below is affirmed.