I dissent.
As subdivisions 2 and 4 of section 1386 of the Civil Code now stand they provide — subdivision 2 — that "If the decedent leaves no issue, the estate goes one-half to the surviving husband or wife, and the other half to the decedent's father and mother in equal shares, and if either is dead the Whole of said half goes to the other. If there is no father or mother, then one-half goes in equal shares to the brothers and sisters of decedent and to the children or grandchildren of anydeceased brother or sister by right of representation." I have italicized that portion of the section more particularly involved *Page 689 in the consideration of this matter. Subdivision 4 provides that "if the decedent leaves a surviving husband or wife, and neither issue, father, mother, brother, sister, nor the children or grandchildren of a deceased brother or sister, the whole estate goes to the surviving husband or wife." These are the only subdivisions of the section requiring attention. Appellants base their claim as heirs to a portion of the estate of decedent under subdivision 2 of the section.
When the Ingram case, referred to in the prevailing opinion, was decided in 1889, subdivision 2 of section 1386 read just as it does now except that in 1905 — many years after it was decided — it was amended so as to add the words "or grandchildren" after the words "children." The other subdivision quoted above — subdivision 4 — is the same now as it was when the Ingram case was decided except that it was then marked subdivision 5, and except, further, that it also was amended in 1905 to add "nor the children or grandchildren of a deceased brother or sister" after the word "sister." These amendments do not affect the situation here as far as grandchildren are concerned, because there are none.
Now, as to the Ingram case, 78 Cal. 586, [12 Am. St. Rep. 80, 21 P. 435]. It appears therefrom that Mrs. Ingram, deceased, left a surviving husband, but no issue and no susviving father, mother, brother or sister. There were, however, left by her certain children and grandchildren of a deceased sister, who, on distribution of the estate, claimed that they were entitled to one-half of it. The trial court having ignored their claim entirely, and having distributed all the estate to the assignee of the surviving husband, the said children and grandchildren of the said deceased sister appealed. They asserted, as do the appellants here, that they were entitled to one-half of the estate under said subdivision 2 of section 1386 This court, however, held to the contrary, and in construing both subdivisions 2 and 5 (now 4 as amended) said: "It is entirely beyond doubt that the whole of the estate should have been distributed to the surviving husband. Paragraph 4 of section 1386 of the Civil Code is too clear to present any difficulty of construction whatever. It is as follows: 'If the decedent leaves 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 *Page 690 brother or sister, and provides that in such case, if there bealso 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."
While this was a department decision, the construction put on these subdivisions was subsequently affirmed in Bank inEstate of Carmody, 88 Cal. 616, [26 P. 373], and Estate ofNigro, 149 Cal. 702, [87 P. 384], in which latter case it was declared, while not questioning the construction of the subdivisions as made in the Ingram case, that such interpretation of the law had theretofore become a rule of property which should be and is adhered to. These two decisions were made under the subdivisions as they stood prior to the said amendments of 1905, and they are confirmatory of the construction in the Ingram case of the subdivisions as they then stood and such construction should be adhered to not only as a proper one, but as having become a long established rule of property, unless the amendment of 1905 to subdivision 4 compels a different construction. The prevailing opinion decides that it does. I am unable to agree with it. Certainly, the amendment of 1905 of subdivision 2 itself worked no change in the construction as given in the Ingram case. That amendment amounted only to the insertion of the word "grandchildren" therein which obviously operated solely as an enlargement of the class who might take if the class of "children or grandchildren" could take at all. No one claims that this subdivision alone, as amended, called for any different construction than it received in the Ingram case. And appellants do not. So it must be taken that as far as subdivision 2 is concerned it means, taken by itself, just what it has always meant and as the Ingram case declared it meant, namely, that the issue of a brother or sister of a deceased spouse could not inherit unless there were also a brother or sister left surviving the decedent. It is claimed, however, that a change in subdivision 2 was wrought through the amendment of subdivision 4 in 1905. If this is not so then it has not been wrought at all. If the amendment did have this effect where is the language *Page 691 in it which declares it? The insertion in subdivision 4 of the words "nor the children or grandchildren" is not language potent or positive of itself to give them the right to inherit at all. These words were simply inserted in subdivision 4 to have it conform to subdivision 2 and make it consistent and harmonious with it. What the amendment to both these subdivisions amounted to is as to subdivision 2 — that grandchildren and children of a deceased sister or brother may with a surviving brother or sister of a decedent inherit one-half the estate of a decedent with the surviving spouse, but only where there is a surviving brother or sister of the decedent who is entitled to do so. As to subdivision 4 — that the surviving spouse shall inherit the whole estate when the decedent leaves "neither . . . brother, sister, nor the children or grandchildren of a deceased brother or sister." In other words, when the decedent spouse leaves none of those who, as enumerated therein would be entitled to inherit one-half of it under subdivision 2, then the whole estate goes to the surviving spouse, It will be observed also that the only subdivision which gives brothers or sisters, children or grandchildren of a deceased brother or sister, in plain and direct language any right to inherit with a surviving spouse at all is this subdivision 2. Subdivision 4 does not pretend to confer any right of inheritance on any one save the surviving spouse, and then gives the whole estate to such survivor when none of the parties exist who under subdivision 2 re-enumerated in subdivision 4, would be entitled to take. It is necessarily understood when subdivision 4 declares that on the nonexistence of any of the different classes enumerated therein, the surviving spouse takes the whole estate, that what is meant is that none of the classes exist who, if left, would be capable of inheriting under subdivision 2. (Anderson v. Potter, 5 Cal. 63. ) If the legislature did not agree with the interpretation in the Ingram case it took it many years — some seventeen — to enact something different, with the result that instead of a clear and positive enactment as to inheritable rights, if that was the intended subject, we are still left to indulge in more construction and interpretation as to what was meant. Certainly, if it was intended to change the Ingram rule and establish a different rule of succession, it was not difficult for the legislature to do so, and do it in plain certain language in the proper place. If children and grandchildren were to inherit *Page 692 one-half with the surviving spouse though no brothers or sisters survived the decedent, it could have easily and clearly said so in subdivision 2, where the inheritable rights of said persons are declared, and not left it to be construed through the use of negative, indirect, and obscure language inserted in subdivision 4 and which does not refer to succession or inheritance at all, and particularly where the only inheriting language used in said section is that conferring a positive inheritable right on the surviving spouse. I am satisfied that the enumeration in subdivision 4, of any of those who might not be entitled to take with the surviving spouse the one-half of the estate under subdivision 2, was made simply as a reason for granting or vesting the whole estate in such surviving spouse, and as not affecting the change in the rules of succession declared in subdivision 2 and as construed in the Ingram case.
The Estate of Claiborne, 158 Cal. 646, [112 P. 278], is not to be taken as authority questioning the rule of the Ingram case. That case is not mentioned or discussed there nor was the construction of subdivisions 2 and 4, or either of them, involved in that appeal. It could not be, as the question there was not one of succession on intestacy, but the construction of peculiar terms in a will. As far as the Estate of Nigro,172 Cal. 474, [156 P. 1019], is concerned, while it did not involve the same question as here — the construction of subdivisions 2 and 4 — it did involve the construction of subdivisions 2 and 3. In that construction the reasoning in the Ingram case was applied and approved, and I do not perceive that the two cases present any radical difference between them in the language used as to inheritable rights.
I think the trial court was correct in holding that the appellants had no interest in the estate which entitled them to appear therein or to be heard on appeal to this court, and that the motions to dismiss their appeals should be granted. *Page 693