Estate of Auclair

75 Cal.App.2d 189 (1946) Estate of ANNIE T. AUCLAIR, Deceased. WANDA A. ROSE et. al., Appellants,

v.

HAZEL DEAN ELMER, as Administratrix, etc., et al., Respondents.

Civ. No. 13087. California Court of Appeals. First Dist., Div. One.

June 28, 1946. Andrew P. Costelli and Girard N. Richardson for Appellants.

Phillips, Munck & Niemand for Respondents.

WARD, J.

This is an appeal from an order denying the heirship of Wanda A. Rose and Wilma Auclair, daughters of a predeceased husband, in the estate of Annie T. Auclair who died intestate. From an agreed statement the following pertinent facts appear: George Auclair and Annie Petty (Auclair) were married on October 31, 1939; George Auclair died March 3, 1941; Annie Auclair died September 13, 1943. At the time of the marriage of George and Annie, George held title to certain real estate which was the separate property of George at the time of its acquisition. On November 29, 1940, George executed a joint tenancy deed to said property to himself and his wife Annie and at the same time filed a declaration of homestead on the premises described in the joint tenancy deed; the deed and declaration were duly filed and recorded. It is stipulated by the parties that the real property vested in Annie T. Auclair on the death of George Auclair; that "Administratrix Hazel Dean Elmer, Ida Belle Curtis and George Petty are issue of Annie T. Auclair and prior predeceased husbands. Contestants Wanda A. Rose and Wilma Auclair are issue of George Auclair and a prior pre-deceased wife. There was no issue of the marriage between Annie T. Auclair and George Auclair."

The sole question to be decided is the applicability of Probate Code, section 229 to the facts. Section 229 reads: "If the decedent leaves neither spouse nor issue, and the estate or any portion thereof was separate property of a previously deceased spouse, and came to the decedent from such spouse by gift, descent, devise or bequest, or became vested in the decedent on the death of such spouse by right of survivorship in a homestead or in a joint tenancy between such spouse and the decedent, such property goes in equal shares to the children [191] of the deceased spouse and to their descendants by right of representation, and if none, ..." Annie Auclair left no spouse but three children survive, the issue of Annie and prior predeceased husbands. [1] The word "issue" may be used with various meanings, depending upon the intent as used. (22 Words and Phrases (perm. ed.), p. 713 et seq.) As it appears in section 229 definitely refers to lineal descendants to any degree. (2 Jarman on Wills, 109; Page on Wills (lifetime ed.). vol. 3, 1027; 33 C.J. 5, pp. 818-819; Jackson v. Jackson, 153 Mass. 374 [26 N.E. 1112, 25 Am.St. Rep. 643, 11 L.R.A. 305]; Estate of Cavarly, 119 Cal. 406 [51 P. 629]; Estate of Carothers, 161 Cal. 588 [119 P. 926]; Estate of Briggs, 186 Cal. 351 [199 P. 322]; Musson v. Fuller, 57 Cal.App.2d 5 [133 P.2d 682].)