Estate of Hudson

VAN DYKE, P. J.

This is an appeal from a decree determining heirship in the estate of Ruth Sanford Hudson, deceased.

It was stipulated and found by the trial court as follows: That Ruth and Frank Hudson died in a common accident and that there was no sufficient evidence that they died other

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wise than simultaneously; that Ruth left a last will and testament bequeathing all of her estate to Prank; that the will contained no disposition of her estate in the event that Prank should predecease her and that, therefore, Ruth died intestate; that appellant herein, Kenneth P. Hudson, was the only child of Prank; that Ruth left no issue; that Ruth’s sister, respondent herein, and three nieces were her heirs; that all property, both real and personal, owned by Ruth and Prank, or either of them, at the time of their deaths was community property, excepting some items of personal property separately owned by Ruth.

Ruth was the insured and Prank was the beneficiary in three policies of life insurance, the proceeds of which were paid into the estate of Ruth. The trial court distributed the money to the sister and nieces of Ruth. Under applicable code sections the money should have been distributed to appellant.

(Estate of Wedemeyer,

109 Cal.App.2d 67 [240 P.2d 8].) Section 296.3 of the Probate Code, being one of the sections in the Uniform Simultaneous Death Act as now codified (Prob. Code, §§ 296-296.8), declares that: “Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died otherwise than simultaneously the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.” Therefore, it must be taken that Ruth survived Prank. The choses in action represented by the policy belonged to the community during the life of Ruth and Pra3ik and upon the assumed prior death of Prank, Ruth took them under section 201 of the Probate Code, which provides that: “Upon the death of either husband or wife, one-half of the community property belongs to the surviving spouse; the other half is subject to the testamentary disposition of tibe decedent, and in the absence thereof goes to the surviving spouse, ...” But section 228 of the Probate Code, which becomes applicable herein under the ruling in the Wedemeyer ease, provides:”If the decedent leaves neither spouse nor issue, and the estate, or any portion thereof was community property of the decedent and a previously deceased spouse, and belonged or went to the decedent by virtue of its community character on the death of such spouse,... such property goes in equal shares to the children of the deceased spouse ... .’’It was therefore error to distribute any part of the proceeds of the three policies to the collateral heirs of Ruth. The distribution should have been made wholly to Kenneth, sole issue of Prank.