The essential pleaded facts are not in dispute. James J. Ramsay died intestate in 1948, leaving surviving bis widow, plaintiff Emma Ramsay, but no issue. His parents predeceased bim. His first wife, Elizabeth Ramsay, had died in lawful wedlock. Her heirs are two sisters and a brother, plaintiffs Anna Smail, Margaret Sehine and Homer C. Debo. Intestate, James J. Ramsay, was the illegitimate son of Sarah Jamieson Ramsay. Her heirs are intervenors Yera Dwyer , and Robert Jamieson. Intestate’s father is unknown, there are no heirs of such father and there was no mutual recognition between intestate, James J. Ramsay, and such father, as to paternity.
Rights of inheritance are governed by statute. Under provisions of section 636.32, Code of Iowa, 1946, then in effect, the surviving spouse of one who dies intestate without issue takes the first $7500 of his net estate plus one half of the excess above that amount. The other half of such excess passes to intestate’s parents if living. Code section 636.40 provides that if both parents are dead the portion which would have fallen to their share shall be disposed of in the same manner as if they had outlived the intestate and died holding their share. Code section 636.41 states:
“If heirs are not thus found, the portion uninherited shall go to the spouse of the intestate, or the heirs of such spouse if dead * * * and if such intestate has had more than one spouse who either died or survived in lawful wedlock, it shall be equally divided between the one who is living and the heirs of those who are dead * *
Code sections 636.45 and 636.46 provide the mother of-illegitimate children inherits from them, but the father may inherit from them only if there has been mutual recognition of paternity.
*717Tbe property here involved is part of intestate’s net estate in excess of $7500. The parties agree that nnder section 636.32 intestate’s widow, Emma Bamsay, takes one half of this excess. They agree also that Yera Dwyer and Bobert Jamieson, inter-venors, take one fourth of this excess as heirs of intestate’s natural mother, Sarah Jamieson Bamsay. Only the remaining one fourth of this excess is in controversy. That was the portion which the heirs of the intestate’s father would have taken under sections 636.32 and 636.40 had there been such heirs and had his paternity been mutually recognized.
The trial court adjudged that under Code section 636.41 one half of this one fourth passed to plaintiff Emma Bamsay, intestate’s surviving spouse, and one half to Anna Smail, Margaret Scliine and Homer C. Debo, heirs of intestate’s predeceased spouse, Elizabeth. Intervenors have appealed. We agree with the conclusion of the trial court.
The word “parents” in Code section 636.40 includes the natural parents of an illegitimate child. In re Estate of Clark, 228 Iowa 75, 115, 290 N.W. 13. Code section 636.41, above set out, provides “If heirs are not thus found, the portion uninherited shall go to” intestate’s spouse and the heirs of deceased spouses. The language of this section was interpreted in McAllister v. McAllister, 183 Iowa 245, 255, 167 N.W. 78, 81, which states that heirs of intestate’s mother not having been found, intestate’s widow took, under this statute, the portion which would have gone to the mother, had she survived the intestate. Also: “The ‘portion uninherited’ is that which would otherwise have passed to the heirs of the deceased’s mother * * *. By ‘spouse of the intestate’ is meant spouse of the person whose heirs are sought to be ascertained, as entitled to the property in probate. * * * [The section] contemplates a situation where, under the statutes preceding it * # * no heirs are in existence, and in these circumstances, declares that the uninherited portion shall go to the widow of the intestate or her heirs, under the rules previously enacted.”
In re Estate of Clark, 228 Iowa 75, 99, 100, 290 N.W. 13, 25, refers to issues of fact in that case essential to the recovery of those claiming inheritance from the intestate as heirs of her predeceased husband, and states in part: “These issues *718are: First. In words of tlie section * * # [now 636.41] were heirs of * * * [intestate], as designated in the Code sections just preceding, ‘not thus found?’ ”
The decision points out that the statutes which provide to whom the property of an intestate descends under specified circumstances are immediately followed by this statute (636.41), which provides, “If heirs are not thus found,” etc., and states, “Bach group of appellánts bases its right to recover upon the fact that heirs of the intestate were not thus found, and that Albert A. Clark was her spouse, and is dead, and they are his heirs.”
The clause in section 636.41, “If heirs are not thus found,” refers to heirs of the intestate. In the case at bar the male parent of the illegitimate intestate Avas unrecognized as such. He predeceased the intestate and had no surviving heirs. It is clear there was no one in this line eligible to take the share of intestate’s property here in controversy. In other words, heirs of the intestate were “not thus found.” It was “the portion uninherited” within the meaning of section 636.41, and the provisions of that section became applicable because there were no heirs eligible to take such portion under the preceding sections. If heirs of the intestate “are not thus found” the search for heirs to the “portion uninherited” starts anew with the lines of intestate’s wives. The incapacity of the unrecognized natural father to inherit from intestate does not destroy the right of inheritance of these independent lines. The spouse and heirs of the deceased spouse of the intestate take direct from the intestate and not as heirs of intestate’s father or any third person. Caulfield v. Noonan, 229 Iowa 955, 967, 295 N.W. 466.
Intervenors rely upon the holding of In re Estate of Tripp, 239 Iowa 1370, 35 N.W.2d 20, that Avhere one of intestate’s deceased parents had no heirs, the estate should pass to the heirs of the other parent. However, in the case at bar the intestate left a spouse and heirs of a deceased spouse who came within the plain letter of section 636.41. The intestate in the cited ease had not been married and left no spouse or heirs of a deceased spouse qualified to take the portion uninherited. Hence the cited case held that to prevent escheat the portion uninherited would pass to the heirs of intestate’s mother.
*719In the instant case none of the classes of possible heirs listed in the sections of chapter 636 which precede section 636.41 is entitled to this uninherited portion. However, with the preceding classes eliminated the search for heirs to this portion can go no further than the spouse and heirs of the deceased spouse of the intestate because, under the explicit language of section 636.41, these persons take all of this portion. Hence the avoiding of escheat, under section 636.50, which was an element in the decision of In re Estate of Tripp, supra, 239 Iowa 1370, 35 N.W.2d 20, is not here a factor.
Nor need we determine Avhether, had intestate never married, the heirs of his natural mother would have taken this finin-herited portion of his estate. It is sufficient that the right of the lines of intestate’s spouses to take it is superior to any such claim. — Affirmed.
Bliss, C. J., and Hale, Smith, Garfield, Mantz, Mul-RONey, and Wennerstrum, JJ., concur. Hays, J., dissents.