Estate of Dickinson

HANSON, J. pro tem.

This appeal presents primarily the question whether a person who has been sentenced to serve a term for less than life in a penitentiary of this state is capable of inheriting real estate where execution of the sentence stands suspended by order of the judge who sentenced her. The trial court ruled that such a person is capable of inheriting under our laws of descent. We think the ruling was correct.

Respondent Hayward pleaded guilty to a felony punishable by imprisonment in the penitentiary for less than life. On January 26, 1940, the court pronounced judgment and sentenced her to the penitentiary for a term less than life, but at the same time suspended execution of the sentence and placed her on probation for fourteen years upon conditions named. Subsequently, on September 18, 1940, the grandmother of respondent Hayward died intestate, leaving as her next of kin a daughter and respondent Hayward, a granddaughter.

Appellants contend (1) that where a person, as here, was sentenced to the penitentiary prior to the repeal in 1941 of Penal Code section 673, even though execution of the sentence is suspended and the offender placed on probation, she is without civil rights; and (2) that a person without civil rights is incapable of inheriting. As in our view a person who has lost his civil rights under the statute is capable of inheriting, we need not pass on the first contention made by appellants.

Penal Code sections 673 and 677 (now repealed and superseded by sections 2600, 3054 and 3055) so far as here material respectively read:

“A sentence of imprisonment in a state prison for any term less than life suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority, or power during such imprisonment.”

“No conviction of any person for crime works any forfeiture of any property, except in eases in which a forfeiture is expressly imposed by law; and all forfeitures to the people

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of this state, in the nature of a deodand, or where any person shall flee from justice, are abolished.”

Counsel on both sides seem to have overlooked the fact that the Supreme Court as early as 1868 construed the identical language found in Penal Code section 673, at that time section 145 of the “Act in relation to crimes and punishment.” In