Estate of Howard

STURTEVANT, J.

This is an appeal from an amended decree of partial distribution on the judgment-roll alone. There is no controversy over the facts.

The facts, taken from the amended decree of partial distribution, are these: Charles James Howard and Adelaide Rowe Howard were husband and wife up to the twenty-second day of February, 1922, when Adelaide Rowe Howard died intestate in San Francisco, she being a resident thereof at the time of her death and left estate therein. There never were any children born as the result of the marriage of Charles and Adelaide Howard. All the property involved in this appeal came to Charles James Howard by descent from the estate of his wife, Adelaide Rowe Howard. It was her separate property at the time of her death. Charles James Howard died intestate leaving the property which he had acquired by descent from his deceased wife, Adelaide Rowe Howard.

The blood heirs of Charles James Howard, the decedent, are the respondents, Jane Morrow McDougall, and Clara Louisa Kirchoffer, sisters of deceased, and Clare M. Howard, a daughter of a predeceased brother.

The blood heirs of Adelaide Rowe Howard, the predeceased wife of Charles James Howard, are the appellants, her cousins, Adelaide Rowe Morrison and Lilly Flageollet.

By the amended decree of partial distribution from which this appeal is taken all the property involved was distributed to respondents and nothing to appellants.

The respondents claim the entire estate to the exclusion of appellants and the appellants the entire estate to the exclusion of respondents.

[562]

Section 228 of the Probate Code deals with the descent of community property. In the instant ease none was involved.

Section 229 of the Probate Code provides: “If the decedent leaves no 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,

such property goes in equal shares to the children of the deceased spouse and to their descendants by right of representation, and if none, then to the parents of the deceased spouse in equal shares, or if either is dead to the survivor, or if both are dead in equal shares to the brothers and sisters of the deceased spouse and to their descendants by right of representation.”