Frederick E. Jepson, upon his death, intestate, left surviving him a widow, but neither issue, nor father, nor mother, nor brother, nor sister. He did, however, leave nephews and nieces, children of deceased brothers and sisters. The widow made application to the court in probate to have set apart to her a homestead. These nephews and nieces filed a contest. Their contest was dismissed by the court in probate, upon the ground that they were not parties in interest. The court made its order setting aside *Page 685 a homestead to the widow. The nephews and nieces have appealed from both of these orders and their appeals are met with this motion to dismiss upon the ground indicated, namely, that they are not parties in interest.
The question, then, is this: If these nephews and nieces under our law of succession have no inheritable interest in the estate of the deceased, they are not interested in the widow's application for a homestead and these appeals should be dismissed. The argument that they have no inheritable interest and are, therefore, not parties in interest, is founded upon the construction which this court gave to subdivisions 2 and 5 of section 1386 of the Civil Code as those subdivisions read before their amendment in 1905, the further contention being advanced that the amendments of 1905 have not changed the law so as to give such nephews and nieces an inheritable interest which before the amendments was not theirs. The cases referred to are Estate of Ingram, 78 Cal. 586, [12 Am. St. Rep. 80, 21 P. 435], Estate of Carmody, 88 Cal. 616, [26 P. 373], andEstate of Nigro, 149 Cal. 702, [87 P. 384]. In each of those cases this court was construing, as it was compelled to do, subdivision 2 of section 1386, under the limitations upon that subdivision imposed by the language of subdivision 5 of the same section. By the amendments of 1905 subdivision 5 has become subdivision 4, and for convenience in exposition we will here deal with subdivision 4, it always being borne in mind that in the cases above cited it was, and was called, subdivision 5.
What, then, were these cases? The first of them, theEstate of Ingram, supra, is the only one calling for analysis, since the other two simply follow the construction placed on the law in the Estate of Ingram. The Estate of Ingram presented precisely the situation that exists in the present case. There was no surviving father or mother; there was no surviving brother or sister, but there were surviving children of a deceased sister. At that time subdivision 4 (then subdivision 5) declared in effect that the whole estate of a spouse dying intestate went to the surviving spouse, unless the deceased spouse left either issue, or a father or a mother, or a brother or a sister. It stopped there. Therefore by this unequivocal language, if no one of these persons was in being, the right of the surviving spouse to take all of the estate was absolutely fixed. To determine the disposition which the law *Page 686 made of an estate under these circumstances when there were not such survivors, the judge in probate primarily, and this court in review, turned to the language of subdivision 2. Subdivision 1 made provision for the case where a deceased spouse left issue as well as a surviving spouse. Subdivision 2 treated of the disposition of the estate in the other contingencies contemplated by subdivision 4, and it declared that if the deceased spouse left father and mother or father or mother, one-half of the estate should go to them or the survivor of them. If there was neither father, nor mother, then the one-half of the estate, which otherwise would have gone to them, went to the living brothers and sisters "and to the children of any deceased brother or sister by right of representation." What, then, was the inevitable and necessary construction of these laws forced upon this court? It was simply this: Subdivision 4 had placed no limitation upon the right of the surviving spouse to take all of the estate merely because there might have been living children of a deceased brother or sister, but, to the contrary, had said that unless there were living brothers or sisters, the whole estate should go to the widow. Turning, then, to subdivision 2, which contemplates that in the event that there is a living brother or sister and children of a deceased brother or sister, the children of such deceased brother or sister shall take the parent's share, the construction was inevitable that such children of a deceased brother or sister could take only upon contingency, and that contingency was the existence of a living brother or sister. This construction, we have said, was forced upon this court. We mean forced in the sense that it was an inevitable and unescapable conclusion. The unreasonableness of it — even the injustice of it — was apparent and was recognized. No sound reason could be or ever was attempted to be adduced to support a law which said, as then did ours, that children of a deceased brother or sister could share in the estate if there was another living brother or sister, but could not share if there were none. All that this court could say was: Ita scripta lex. In time the anomaly of the situation came to be recognized by the legislature and it amended subdivision 4 in a most important particular. It also amended subdivision 2, that it might read harmoniously with the amended subdivision 4. That amendment for the first time added to the classes, the existence of which would forbid the *Page 687 surviving spouse from taking all of the estate "the children or grandchildren of a deceased brother or sister." Or, to make our meaning plain, paraphrasing the language of subdivision 4, while still maintaining its meaning, originally it declared that all of the estate shall go to the surviving spouse unless the deceased spouse left issue, husband, wife, father, mother, brother, or sister, in which event the estate should go as provided in the previous subdivisions 1 and 2; or, again paraphrasing its meaning, the subdivision declared that the surviving spouse should not take all of the estate if any of these enumerated relations of the deceased spouse survive. By the amendment to subdivision 4 it declared that the surviving spouse should not take all of the estate if, as well as those first enumerated, children or grandchildren of a deceased brother or sister survived. As a limitation upon the right of the wife to take all of the estate, these children and grandchildren of a deceased brother or sister were placed in the same list and category as a surviving parent or a surviving brother or sister. We now have the law reading as it never read before. We have the law declaring that the surviving spouse shall not take all if the deceased spouse left a surviving father, or mother, or, failing these, left a surviving brother or sister, or, failing these, left children or grandchildren of a deceased brother or sister. It still becomes necessary to turn to subdivision 2 to learn what disposition the law makes of the estate when any of the contingencies or limitations contemplated by subdivision 4 upon the surviving spouse's right to take all of the estate have arisen, and we do this now with the fixed declaration of the law that the surviving spouse shall not take all of the estate if there be surviving children or grandchildren of a deceased brother or sister of the deceased spouse. When we turn to the consideration of subdivision 2, with this new light and law before us, we now find a law rationally and justly framed to enable children of a deceased brother or sister to inherit, whether or not there be a surviving brother or sister. If there be a surviving brother or sister then the children of each deceased brother or sister take collectively their parent's share "by right of representation." If there be no surviving brother or sister and there be children of more than one deceased brother or sister, each group of such children takes the parent's share by right of representation. Such is the manifest meaning of the amended *Page 688 law; such is the meaning that would have been given to this law from the first — saving that this court was unable to give it because of the original limitation in subdivision 4, so often referred to.
And, finally, let it be said, if the amendment to subdivision 4, aptly phrased to accomplish this thing, does not mean this it means nothing, and the legislature was but beating the air.
The precise question here under consideration has never been directly presented to this court under these amendments to section 1386 of the Civil Code. But upon the other hand there is no decision of the court given since those amendments which follows the views of the Estate of Ingram — the law of which case happily fell to the ground with the existence of the amendments. To the contrary, while the question was not directly presented in them, the opinions in such cases asEstate of Claiborne, 158 Cal. 646, [112 P. 278], could only have been written under the recognized concession of the litigants that the law had been changed as indicated — a concession which the court accepted. Estate of Nigro, 172 Cal. 474, [156 P. 1019], contains nothing in opposition to what has been here said. In the Estate of Nigro this court simply laid down the unimpeachable proposition that children and grandchildren of a deceased brother or sister were not grouped in the law as forming together one class but as forming two distinct classes, so that grandchildren were entitled to the inheritance only in the event that there were no living children.
The motions to dismiss are therefore denied.
Sloss, J., Shaw, J., Melvin, J., Lawlor, J., and Angellotti, C. J., concurred.