Goodrum v. Seliner

ANGELLOTTI, C. J.

Christian Beer died intestate, leaving no wife, issue, father, or mother. There was a contest for letters of administration between the public administrator and William Seliner, a brother of Christian Beer’s predeceased wife, Elizabeth S. Beer, who also died intestate. The superior court granted Seliner’s petition and the public administrator appeals.

The right of Seliner to letters of administration is dependent upon his right under subdivision 8 of section 1386 of the Civil Code to succeed to property of the decedent as the surviving brother of the predeceased wife of the decedent, he himself not being related by blood to the decedent. (Code Civ. Proc., sec. 1365.) The estate of decedent consists in part of a lot of land with the house thereon in the city of Stockton. This was the separate property of the predeceased wife, who died in the year 1911. In the year 1910, while said property was her separate property, she had duly selected it as a homestead, and, therefore, upon her death, by express provision of the homestead statute, it vested in the surviving husband, the decedent. (Civ. Code, sec. 1265; Code Civ. Proc., sec. 1474.) Seliner’s claim of right to succeed to this property is based on a provision of subdivision 8 of section 1386 of the Civil Code, which provides that if any portion of the estate “was separate property of such deceased spouse, while living,

<md came to such decedent from such spouse by descent, devise, or

bequest/’ such portion shall go to specified relatives of the deceased spouse. Section 1265 of the Civil Code and section 1474 of the Code of Civil Procedure, as they now are, and as they were at the time of the selection of this homestead, both substantially provide that if the selection of a homestead was made by a married person from the community property, or from the separate property of the spouse making the selee

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tion or joining therein, the land selected, on the death of either of the spouses, vests in the survivor. The precise question here is whether homestead property so vesting in the survivor of the marriage comes to him “by descent” within the meaning of this provision of subdivision 8 of section 1386 of the Civil Code.

We are of the opinion that this question must be answered in the negative. It seems clear to us that this provision contemplates only such property as comes by will or under the law of succession to the surviving spouse,