202 P. 641 | Cal. | 1921
This is an appeal by certain relatives of Catherine Ross, deceased, from an order granting a petition by the administrator for a partial distribution of the estate of the said Catherine Ross.
Catherine Ross died intestate March 22, 1916, leaving an estate amounting to upward of fifty thousand dollars. At her death she left neither issue nor surviving father, mother, brother, or sister. She did leave surviving her six nephews and nieces, the children of a deceased sister, Elizabeth H. Donohue, and thirteen grandnephews, grandnieces, great-grandnephews, and great-grandnieces, descendants of another deceased sister, Bridget H. Quinn. At the time of her death there were living also two sisters of John Ross, her predeceased husband, and certain descendants of a deceased *456 brother and three deceased sisters of the said John Ross.
The estate of Catherine Ross consisted partly of her separate property and partly of property alleged to have been community property of herself and her deceased husband. The community property came to her through a decree of distribution of the estate of John Ross. James R. Carrick, the petitioner and one of the respondents herein, and a relative of John Ross, and Katherine H. Nicholson, one of the appellants and a relative of Catherine Ross, were appointed and qualified as administrator and administratrix, respectively, of the estate of Catherine Ross.
The petition for partial distribution was filed October 23, 1919, by James R. Carrick, as administrator of the estate. It alleged that notice to creditors had been duly given; that the time within which claims against the estate might be presented had passed; that all claims which had been presented had been paid save one for $2,442.40, which had been rejected and for the establishment of which an action was at that time being prosecuted; that an inventory of the estate had been filed, and that the estate was not in a condition to be finally distributed. Then followed a recital of the items of the estate and a list of the surviving relatives of John and Catherine Ross. It further stated: "That it has not been determined what inheritance tax is due to the state of California out of said estate and a determination of that matter cannot be made until this court determines what part of the properties of said estate was the separate properties of said Catherine Ross, deceased, and what part of said properties was the community property of said deceased and her predeceased spouse, John Ross." Petitioner's prayer was that the court ascertain and determine the rights of all persons interested in or claiming a portion of the estate, and the proportion to which each was entitled, and that petitioner have such other relief as might be proper. A demurrer was interposed on behalf of Katherine H. Nicholson on the ground that the petition did not state facts sufficient to entitle James R. Carrick to a partial distribution of the estate, which was overruled. Thereupon she filed an answer to the petition, wherein she alleged that all the property was the separate property of Catherine Ross; that Catherine *457 Ross died testate, and that certain named persons were her only beneficiaries; that the only heirs of Catherine Ross were certain named persons who were the descendants of her two predeceased sisters. The answer further denied all the allegations of the petition.
The court found that all the allegations of the petition were true and those of the answer were untrue; that certain designated property in the estate came to Catherine Ross by decree of distribution from the estate of John Ross, which property was community property; that certain other designated property was her separate property, and that certain named persons were the relatives of John Ross and Catherine Ross. As conclusions of law the court found: "That all of the community property of said deceased . . . was succeeded to at the death of said Catherine Ross, deceased, and should be distributed, on final or partial distribution, in the following manner: One-half (1/2) thereof to the said sisters of the said John Ross, deceased, and to the said descendants of the said deceased brother and sisters of said John Ross, deceased, by right of representation, their heirs, administrators or assigns, and one-half (1/2) thereof to the said next of kin of said Catherine Ross, deceased, to wit: to the said children of said Elizabeth H. Donohue, deceased, their heirs, administrators or assigns." The conclusion of law was to the effect that the separate property should be distributed to the heirs of Catherine Ross, namely, to the children of Elizabeth H. Donohue.
A portion of the estate amounting to twenty-eight thousand dollars was ordered distributed in accordance with the findings of the court. From this order one grandnephew and four grandnieces of Catherine Ross take this appeal. They are grandchildren of Bridget H. Quinn, one of the deceased sisters of Catherine Ross, whose descendants by the terms of the order of distribution are not entitled to share in the estate.
[1] 1. In considering the distribution of the estate we shall first dispose of the question of the separate property. In this connection respondents assert that "these nieces and nephews are 'the next of kin' of Catherine Ross, and the facts of this case bring it precisely within the provisions of subdivision 5 of section 1386 [of the Civil Code], which provides that: 'If the decedent leaves neither issue, *458 husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin in equal degree' "; that "It is well established that, under the circumstances of this case, subdivision 3 has no application because no brother or sister of deceased survived her." Subdivision 3 of section 1386 is as follows: "If there is neither issue, husband, wife, father nor mother then 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." Respondents further state: "If there be no brother or sister of deceased living at the time of death, then the succession is not governed by subdivision 3, but is controlled by subdivision 5, which specifically provides for that precise case."
Appellants contend that "subdivisions 2, 3, and 4, so far as they relate to inheritance by children and grandchildren of a deceased brother or sister, were all adopted at the same time and as amendments to the pre-existing statute, for the sole purpose of overturning the doctrine of the Estate of Ingram,
The position of appellants is untenable. Estate of Jepson,supra, relied on by them, was decided on the authority of subdivision 2, there having been in that case a spouse and several children of predeceased brothers and sisters who survived the decedent. That case held that the amendments to subdivision 2, adopted in 1905, altered the meaning of that subdivision, and overruled Estate of Ingram,
In Estate of (Ellen) Nigro, supra, the decedent left neither husband, father, mother, brother, nor sister. The only relatives claiming as heirs were the children and grandchildren of a deceased brother and two deceased sisters. It was claimed the case fell within the provisions of subdivision 3 of section 1386 The court said: "The rights of the parties here are governed by subdivision 5 of said section. That subdivision is as follows '5. 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.' *460
"This subdivision applies, as its language shows, to cases where the decedent leaves neither issue, husband, wife, father, mother, brother, nor sister surviving. This is the condition here presented. . . . Under its terms, therefore, the only persons in equal degree of kindred to Ellen Nigro who could inherit from her, were the surviving children of the deceased brother and sisters. The grandchildren of such deceased brother and sisters were not in equal degree with such surviving children." This case was not overruled by Estate of Jepson,supra, as appellants claim, for there was no contention inEstate of Jepson, supra, that the facts were the same as inEstate of Ellen Nigro, supra, and in Estate of Jepson, supra,
it was declared: "Estate of Nigro,
Appellants also claim that even if the case at bar does fall within the provisions of subdivision 5, still the amendments to subdivisions 2 and 4 should be read into subdivision 5, and the children and grandchildren of the deceased sisters be allowed to inherit the property. That this is not the case is shown by the statement in Estate of Ellen Nigro, supra, that "these amendments obviously have no bearing whatever on the rule of interpretation here involved. They do not change the effect of the section [1386] as applied to the facts of this case."
There is no question but that the distributees of the separate property named in the order of distribution are the next of kin of Catherine Ross, they being the children of a deceased sister. As such they are entitled to the property by virtue of subdivision 5 of section 1386 It follows that *461 the order of distribution of the separate property conformed to the statutory provision.
2. Touching the distribution of the community property, appellants make the contention that "subdivision 8 of section 1386 of the Civil Code has no application, for in the first place that provision is a constituent part of the statute of succession, and is, of course, confined to estate not disposed of by will; and as all the property of the community estate that Mrs. Ross, the decedent, received, other than as surviving wife and pursuant to section 1402 of the Civil Code, came to her under the will of her predeceased husband, it is not within the statute of succession, to wit: section 1386 of the Civil Code." Respondents, on the other hand, maintain that "It is utterly immaterial whether one-half of the community property vested in Catherine Ross by operation of law or under the terms of the decree in the husband's estate. Under the express language of section 1386 of the Civil Code, subdivision 8, the test is: 'What is common property of such decedent and his or her deceased spouse while such spouse was living?' " InEstate of Davidson,
[2] Appellants argue that subdivision 8 of section 1386 makes the vesting of any interest in the heirs of John Ross dependent on the vesting of a one-half interest in a surviving father or mother or, if none, in a surviving brother or sister of Mrs. Ross, the decedent. In support of this position is citedEstate of Ingram, supra, but that case is not in point, for the property there was separate property and the order of descent was regulated by subdivision 2. Besides, in Estate of Jepson,supra, upon which appellants rely, Estate of Ingram, as has been shown, was declared to have been overruled by the amendment of 1905. In Estate of Brady,
In Estate of Hill,
[3] Appellants insist they are entitled to share that portion of the community property which was distributed to the heirs of Catherine Ross. Respondents assert: "It will be noted that the language just quoted [subdivision 8] is similar to the language of subdivision 3 of section 1386, which was construed in theEstate of Ellen Nigro,
Estate of McCauley,
Finally, respondents argue that subdivision 5 is to govern the descent of the community property as well as that of the separate property. They claim that "subdivision 8 is a limitation upon the operation of the previous subdivisions of section 1386 It governs the succession of that particular part of the estate of the decedent which was the community property of himself and the predeceased spouse and controls in so far, and only in so far, as it expressly goes. In other words, it governs the succession only to the extent that its provisions specify. Putting it otherwise, it may be said that we must look to the other provisions of the statute of succession for those instances which subdivision 8 does not cover or for which it does not provide." However, inasmuch as subdivision 8 does control this case, as already appears, subdivision 5 is inapplicable. Furthermore, even if subdivision 8 did not provide a mode of descent for the case at bar, subdivision 9, which provides for escheat in cases of community property not covered by subdivision 8, would apply.
[4] 3. Appellants' next contention is that the court erred in overruling the demurrer to the petition, on the grounds that under sections 1658,
This petition was presented in accordance with the terms of section 1663 of the Code of Civil Procedure, added in 1917 [Stats. 1917, p. 575]. That section provides that "Where the time for filing or presenting claims has expired, and all claims that have been allowed have been paid, or are secured by a mortgage upon real estate sufficient to pay them, and the estate is not in a condition to be finally closed and distributed, the executor or administrator, or coexecutor or coadministrator, may present his petition to the court for ratable payment of the legacies, or ratable distribution of the estate to all the heirs, legatees, devisees, or their assignees, grantees or successors in interest. . . ." The petition in this case, the allegations of which were found to be true, clearly shows that a situation exists here which is within the contemplation of this statute. The fact that it has not been determined whether the claim for $2,442.40 is or is not to be allowed is immaterial, for the code section refers only to those claims that have been allowed. It is not provided that it shall be requisite to a partial distribution that all claims shall have been allowed or disallowed. All that is required is that the court satisfy itself that no injury can result to the estate by reason of the distribution. None could result by reason of this outstanding claim, for there has been sufficient property set aside to cover it. Inasmuch as the petition conforms to section 1663 of the Code of Civil Procedure, it is immaterial whether or not it conforms to sections 1658, 1660, or 1661, which provide for partial distribution on the application of an heir or legatee. [5] Neither is this a special proceeding to determine heirship, as provided by section 1664, and the petition not having been presented in accordance with that section, need not comply with it. In the William Hill Co. v. Lawler,
[6] Appellants make no objection to the nonpayment of any taxes except inheritance taxes. The petition states that it was impossible to pay all the inheritance taxes until it was determined who were the heirs. Estate of Mahoney,
[7] 4. Another assignment of error is as follows: "The superior court erred in its ruling admitting in evidence the testimony of petitioner Carrick relative to pedigree. The testimony was clearly incompetent and irrelevant, as Carrick was not and never had been a member of the family of the deceased John Ross, and gave no testimony concerning the declaration of the decedent on the subject." In support of this position are cited sections 1852 and 1870, subdivision 4, of the Code of Civil Procedure, and several cases, among themEstate of James,
[8] 5. A further assignment of error is that the findings are contradictory and in that respect do not sustain the decree. One of the findings is to the effect that all the allegations of the petition are true. Among these allegations so found to be true is one to the effect that "the names and residences of the heirs and distributees of said Catherine Ross, deceased, and persons entitled to distribution of said estate are as follows." In the list given appeared the names of all the relatives to whom we have referred, including those of appellants and the other descendants of Bridget H. Quinn. In the specific findings that certain named persons are the heirs, and in the conclusions of law, the appellants and the other descendants of Bridget H. Quinn are excluded. There is no error in these findings for the special finding that certain named persons are the heirs controls the general finding that all the allegations of the petition are true. It was said inMcCormick v. National Surety Co.,
The judgment as to the separate property is affirmed, and as to the community property, it is modified to include the descendants of Bridget H. Quinn as well as those of Elizabeth Donohue.
Shaw, C. J., Sloane, J., Lennon, J., Wilbur, J., and Shurtleff, J., concurred.
Rehearing denied.
All the Justices concurred. *469