28 Cal. 232 | Cal. | 1865
By the Court,
George C. Jewell died intestate March 27th, 1863, leaving a widow (the respondent) and a father, but neither a child, nor the issue of a deceased child. The estate of the intestate was common property of the deceased husband and his wife. The father of the deceased conveyed his interest in the estate to seven of his children—the petitioners being two of the number. Upon their petition to the Probate Court for the distribution of the estate, it was ordered that one half of the estate be distributed to the widow, for her interest in the common property, as the survivor of the community, and that of the remaining half of the estate, one half thereof should go to the widow and the other half to purchasers from the father of the deceased.
The petitioners appeal. For convenience of designation one half of the. common property may be called the husband’s half, and the other the wife’s half. It is not doubted that the widow, as the survivor of the community, is entitled to her half of the community property, and the only question pre
The eleventh section of the Act of 1850, defining the right of husband and wife, as amended in 1861 (Statutes of 1861, p. 310) is as follows :
“ Section 11. TJpon the dissolution of the community by the death of the husband, one half of the common property shall go to the surviving wife and the other half to the descendants of the deceased husband, the whole being subject to the payment of his detjts; upon the dissolution of the community by the death of the wife, the entire common property shall go to the surviving husband. In case of the death of the husband, if there be no descendants of the husband, one half of the common property may be subject to his testamentary disposition, and in the absence of any such disposition, shall be subject to distribution in the same manner as the separate property of the husband.”
The question is to be solved by ascertaining the meaning of the word “ descendants ” as employed in that section. Bouvier defines descendants as “ those who have issued from an individual, and includes his children, grandchildren and their children to the remotest degree. The descendants form what is called the direct descending line. The term is opposed to that of ascendants.” Those who are denominated descendants do not comprise all of those who come to the title by descent. It is apparent, upon inspection of section eleven, above cited, that the term descendants does not include the ascending line. It is provided in the last clause of the section, that the husband’s testamentary disposition of his half of the common property, shall be valid, if the husband shall die leaving no descendants, and that if such testamentary disposition shall not have been made, then it shall be distributed in the same manner as the separate property of the husband ; that is to say, according to the Statute of Descents and Distributions.
By adopting the construction of the appellants, that “ descendants” are all those who may properly take by descent, we are led into this absurd construction of the section just cited. The husband would be authorized to make a testamentary disposition of his half of the common property, only in case there was no one entitled to take by descent; and if the husband has not made a testamentary disposition of it, and has left no descendants—that is, no persons entitled to take by descent—then it shall be distributed among his descendants.
We are clearly of the opinion that the husband’s half of the common property, it not being disposed of by his will, and he leaving no descendants, must be distributed according to the provisions of the second clause of section one, of the Act to regulate descents and distributions, as amended in 1862, and that according to the rule in that clause, the surviving wife and the father df the deceased were each entitled to the
Order affirmed.
