ESTATE OF PATRICK LINEHAN.
No. 5662--Feb. 8, 1875.
SUCCESSION.--Where the decedent leaves him surviving
no issue, father, mother, brother, or sister, but does leave a wife and also
children of a deceased brother or sister, the wife inherits the entire estate,
to the exclusion of nephews or nieces.
To enable nephews and nieces to take (by right of representation), there
must be a brother or sister surviving to take with them.
Where the widow in such case dies leaving children by
a former marriage, such children succeed her in the estate vested in her on the
death of the husband.
Construing
sections, C. C., 1886, 1403.
J. F. Finn, for son and
daughter of the widow of deceased by her prior marriage.
G. W. Tyler, for nephew and
niece of deceased.
Deceased died intestate, leaving a widow, Ellen, but
no issue, nor father, nor mother, nor brother, nor sister. The administrator is a son of a deceased
brother of the deceased, and there are children of a deceased sister of the
deceased.
The widow, Ellen, died leaving a son and daughter by her prior marriage.
Mr. Finn claims distribution of the entire estate to
the son and daughter of the widow, under subdivision 5, Section 1386 of the
Civil Code.
Mr. Tyler claims that under subdivision 2 of the same
section the nephew and niece of the deceased each take one-fourth of the
estate. Subdivision 2 provides that the
wife take one-half, and "if there be no father then one-half, goes in
equal shares to the brothers and sisters of decedent, and to the children of
any deceased brother or sister, by right of representation."
By the COURT:
At first view, it would seem to be very plain that the nephew and niece
would take; but subdivision 5 provides that "if the decedent leaves a
surviving husband or wife and no issue, and no father, nor mother, nor brother,
nor sister, the whole estate goes to the surviving husband or wife."
These two provisions can be harmonized only upon the
theory that the Legislature intended that in order that nephews or nieces
should take (where there is a surviving husband or wife,) that there should be
a brother or sister of deceased to take with them. Subdivision 4 expressly applies this theory
to another state of facts, and provides, "If the decedent leaves no issue, nor husband nor wife, nor father, and no
brother nor sister is living at the time of his death, the estate goes to his
mother to the exclusion of the issue, if any, of deceased brothers and
sisters."
Comparing these various subdivisions, I am of opinion
that, as deceased left him surviving no issue, nor
father nor mother nor brother nor sister, upon his death the entire estate
vested in the wife, and upon her death passed to her son and daughter, subject
to the purposes of administration of her estate.
Transcribed
by Sue Wood.
© 2007 Sue Wood.
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