In Re Estate of Kirby

SHAW, J.

This is an appeal from a final order of distribution of the estate of Patrick Kirby, deceased.

[92]

Patrick Kirby died intestate on January 18, 1910, leaving neither wife, issue, father nor mother surviving. His surviving heirs, according to section 1386 of the Civil Code, were two brothers, Michael and James Kirby, one sister, Bridget Mannion, and the children of Ellen Daly, a deceased sister. On December 1, 1910, Michael Kirby transferred his interest in Patrick’s estate to one James Kirby, a son of said Michael. Said James Kirby is the appellant herein. On February 23, 1910, Michael Kirby was duly charged by information, in the superior court of the city and county of San Francisco, with the murder of said Patrick Kirby. On July 1, 1910, he was, upon said charge, convicted of the crime of manslaughter. An appeal was taken from the judgment of conviction and it has been affirmed and has become fina]. Because of this conviction, the court below refused to distribute the share of Michael Kirby to his assignee, James Kirby, and distributed the entire estate to the other persons above mentioned. It is claimed that this was error.

By section 1386, if a person dies intestate, leaving neithér issue, husband nor wife, father nor mother surviving, his estate goes to his brothers and sisters, and to the children or grandchildren of any deceased brother or sister by right of representation. An exception to this rule is declared by section 1409, a new section added to the same title in 1905. It is as follows:—

“No person who has been convicted of the murder of the decedent shall be entitled to succeed to any portion of his estate; but the portion thereof to which he would otherwise be entitled to succeed descends to the other persons entitled thereto under the provisions of this title.”

If Michael Kirby was not “convicted of the murder” of Patrick Kirby, within the meaning of this section, then James Kirby, the assignee of Michael, is entitled to succeed to one fourth of the estate. What, then, is the true meaning of the words last quoted?

“Words and phrases are construed according to the context and approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, or are defined in the succeeding section, are to be construed according to such peculiar and appropriate meaning or definition.” (Civ. Code, sec. 13.)