Estate of Smith

PRESTON, J.

This appeal is from the decree of final distribution in the estate of Lewis Smith, who died intestate in Sacramento County on the sixth day of January, 1927. We are concerned with the law of succession as of said date. A proper construction of certain provisions of sections 1386, 1387 and 1388 of the Civil Code, as they then read, will determine the course of the appeal.

The decedent and this appellant, Arthur Smith, were illegitimate sons of Sophia Smith, who was never married. Neither of the illegitimates was ever legitimated or adopted by his father. The decedent left no issue, wife, mother or

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other relative, lineal or collateral, save appelllant and a maternal aunt, a sister to his mother. She, however, has since died and her personal representative is the respondent on this appeal. The court below awarded the entire inheritance to her estate, excluding

in toto

the claim of appellant—the illegitimate brother of decedent. We are constrained to hold that appellant and not respondent is entitled to the estate.

Appellant contends that his right to inherit is measured by the provisions of section 1386 of the Civil Code, subdivision 3, which read in part: “When any person having title to any estate . . . dies without disposing thereof by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this code and the Code of Civil Procedure ... in the following manner: . . . 3. If there is neither issue, husband, wife, father, nor mother then in equal shares to the brothers and sisters of decedent. . . . ”

Respondent, on behalf of the maternal aunt, contends that former section 1388 of said code makes applicable subdivision 5 of said section 1386 thereof, which, so far as here material, reads: “If the decedent leaves neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin, in equal degree. ...” From section 1388, as amended in 1921, we find the provision relied upon to read: “The estate of an illegitimate child . . . is succeeded to as if he had been born in lawful wedlock and had survived his father and all persons related to him only through his father.”