I dissent. The majority opinion holds that the interests of four claimants escheat to the State of California because of the provisions of Probate Code section 1026. In my opinion, under the facts of this case, this constitutes a great injustice to these four claimants.
In the first place, the state contends that section 1026 is not a statute of limitations but is part of the substantive law of inheritance. This is a matter of semantics. As the majority opinion points out this case was tried and appealed at a time when section 1026 could apply but was not raised by the state. One day, before the second trial, the state attempted to amend by raising this section. The trial court held that section 1026 was tolled. In so holding, the trial court was clearly correct. The provisions of section 1026 are subject to tolling under proper circumstances. (Estate of Caravas, 40 Cal.2d 33, 41-42 [250 P.2d 593]; Estate of Spinosa, 117 Cal.App.2d 364, 370-372 [255 P.2d 843].) This was a proper case to toll the statute.
The Estate of Gogabashvele, 195 Cal.App.2d 503 [16 Cal.Rptr. 77], was decided on September 12, 1961. The Estate of Larkin, 65 Cal.2d 60 [52 Cal.Rptr. 441, 416 P.2d 473], disapproving the Gogabashvele case, was decided on August 2, 1966. This court had denied a hearing in the Gogabashvele case. What the majority opinion holds is that during this five-year period a reasonably competent attorney should pay no attention at all to the Gogabashvele case and the denial of hearing but should go to the Supreme Court and ask that court to disapprove. This is sheer nonsense. An attorney, reasonably competent, is entitled to rely on a district court opinion, in which a hearing by this court has been denied, and is entitled to consider that that opinion correctly states the law. For this reason, section 1026, which is a statute of limitations, was tolled during this five-year period.
It is also the law that the statute of limitations is waived when it is not pleaded. (Bliss v. Sneath, 119 Cal. 526, 528 [51 P. 848]; Taylor v. Sanford, 203 Cal.App.2d 330, 345 [21 Cal.Rptr. 697].) Here, the state *82not only failed to plead the provisions of section 1026 at a time after the five-year period prescribed by section 1026 had passed, but proceeded to trial and then to appeal without raising the question. Under such circumstances there was a clear waiver.
It should also be mentioned that this is an escheat case. The state has no proper interest to escheat property that properly and legally belongs to someone else. Escheat statutes should be strictly construed.
For these reasons, I am of the opinion that the four claimants involved in this proceeding are entitled to their proper share of the estate.