Estate of Winchester

VAN DYKE, J.

The appeal is taken in this case from that part of the order of the court below made and entered in the above-entitled estate, fixing the inheritance tax upon the legacies to S. Herbert Howe in trust for Mary Winchester Fay, William Burbank Fay,. Henry Harold Evans, and Laura Evangeline Evans, the children of Laura Evans, the adopted daughter of the decedent, Henry K. Winchester. The act under which the tax is imposed is entitled: “An act to establish a tax on collateral inheritances, bequests, and devises,” etc., approved March 23, 1893, (Stats. 1893, p. 193).

The question presented in the case is whether these legacies come within the provisions of that act. Among those excepted from its provisions in addition to the father, mother, husband, wife, lawful issue, etc., are “any child or children adopted as such in conformity with the laws of the state of California” and “any lineal descendant of such decedent born in lawful wedlock.” The question is, then, whether children

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of an adopted child come within the meaning cf any of the excepted classes above enumerated. The Civil Code, on the subject of adoption, provides that the judge, upon adoption, must make an order that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting. (Civ. Code, sec. 227.) “A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation.” (Civ. Code, sec. 228.) Referring to these provisions in connection with section 1386 of the same code, this court, in

In re Newman’s Estate,

75 Cal. 219,

1

said: “The language is general and comprehensive. The use of the word ‘issue’ in section 1386 does not limit the right of inheritance to the natural children only. That section prescribes the rule of inheritance. The word ‘issue’ is there used in the same sense as the word ‘child’ and ‘children. ’ If the adopted child is by virtue of its

status