I dissent.
Decedent Rupert G. Wedemeyer left neither spouse nor issue hence there are but two sections in the Probate Code *73which could possibly apply, namely sections 225 and 228.
The prevailing opinion holds in substance that section 228 is controlling because the premiums had been paid out of community funds and the proceeds retained a community character after the beneficiary’s death had dissolved the community. Section 228 is a reenactment of section 1386, subdivision 8, Civil Code, and the theory underlying that section was, as the Supreme Court said in Estate of Brady, 171 Cal. 1, 3 [151 P. 275], “to provide for the inheritance of the property equally by the respective families of the two spouses by whose efforts it was accumulated.”
Section 228 distributes in two lines of succession—one half to the family of each spouse.
In 1945 section 296.4, Probate Code, was enacted, and when it says that distribution shall be “one-half ... as if the husband had survived and the other one-half ... as if the wife had survived” it, likewise, directs distribution in two lines of succession—one-half to the family of each spouse.
Section 296.4, however, contains an exception which cannot be ignored; it must be given some meaning. It says: “except as provided in Section 296.3.”
The present litigation presents a set of facts squarely within section 296.3, since the husband was the insured, the wife the beneficiary, and both' died at the same time. The exception in § 296.4 sends you to section 296.3, the language of which is in sharp contrast with that of section 296.4. Section 296.3 provides that the distribution of life insurance proceeds shall be “as if the insured survived.” If section 296.4 directs distribution in two lines of succession and life insurance (in the contingency existing here) is removed from the operation of section 296.4 by the exception, the purpose of the Legislature seems to be that life insurance proceeds (within the contingency named in §§ 296.3 and 296.4) should be distributed otherwise than m two lines of succession.
If such had not been its purpose, all the Legislature had to do was omit the exception from section 296.4 and tack it onto section 296.3, or by other appropriate language indicate that life insurance impressed with a community character should be distributed the same as all other community property.
If the prevailing opinion is correct in holding that the distribution is governed by section 228, then precisely the same result is reached as if the distribution were to be made *74as directed by section 296.4—in two lines of succession one half to the family of each spouse—a result which- the Legislature by the exception which it wrote into section 296.4 manifestly intended to prevent.
It is not necessary to say whether or not sections 296.3 and 296.4 are laws of succession. True, they do not prescribe the heirs entitled to succeeed, but it cannot be gainsaid that they do superimpose new rules on the old succession sections and thus modify them.
The views now expressed do not touch in any way the settled rule of New York Life Ins. Co. v. Bank of Italy, 60 Cal.App. 602 [214 P. 61], and similar cases. That rule, as all the eases show, was designed to safeguard the rights of a wife during her lifetime, in her half of life insurance paid for with community funds. Emma Wedemeyer’s community rights were never in jeopardy, since her husband had made her the beneficiary of three of the policies and had made the fourth payable to his estate, not to some other person. And if the Legislature decided to remove life insurance (formerly impressed with a community character) from the realm of community property in cases where the beneficiary predeceases the insured, that was well within its power. (Estate of Perkins, 21 Cal.2d 561, 569 [134 P.2d 231]; 9 Cal.Jur., pp. 450-451.)
Since, in my opinion, section 228 does not apply, then the proceeds of the three policies wherein Emma Wedemeyer was the beneficiary should be distributed as separate property pursuant to section 225, Probate Code, which reads: “If the decedent leaves neither issue nor spouse, the estate goes to his parents in equal shares, or if either is dead to the survivor, or if both are dead in equal shares to his brothers and sisters and to the descendants of deceased brothers and sisters by right of representation.”
The foregoing discussion has to do only with the first three policies. The exception in section 296.4 cannot, of course, be stretched beyond its own language. Such exception is confined to cases where there is a named beneficiary, hence it does not embrace the fourth policy, payable to the insured’s estate,. for that policy presents no problem of simultaneous deaths. Accordingly (and consistently) I am satisfied that under Estate of Castagnola, 68 Cal.App. 732 [230 P. 188], decided by this court in 1924, the proceeds of the fourth policy should be distributed as any other community property would be. Section 296.4, the most recent enactment on *75the subject, would send such proceeds in two lines of succession, one half to the husband’s heirs and one half to the wife’s, under section 225 Probate Code. The result, incidentally, as pointed out earlier, will be the same as if the distribution were under section 228.
The Castagnola case does not apply to the first three policies because of the enactment, 21 years after it was decided, of sections 296.3 and 296.4. Except for those sections it would be controlling herein as to the first three policies as well as the fourth.
Another matter should be noted. Three of the policies were payable to Emma as beneficiary or to the insured’s executor, administrator or estate. If she died first, then none of the policies ever became payable to her. On Rupert’s death the proceeds went into his estate, not by virtue of the laws of succession, but because of the plain terms of the insurance contracts themselves.
The proceeds of the fourth policy, payable directly, to Rupert’s estate, likewise became assets thereof under the contract and not by virtue of the laws of succession.
It follows that none of the insurance money went into Emma’s estate, hence the order there in purporting to determine heirship with respect thereto was, to that extent, of no effect and in my opinion should be reversed.
I believe the order entered in Rupert’s estate should also be reversed for the reasons stated above.
A petition for a rehearing was denied March 1, 1952, and appellants’ petition for a hearing by the Supreme Court was denied March 27, 1952.