In re Estate of De Castro v. Barry

California Supreme Court Jul 1, 1861Published

Before: Baldwin

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Holding. The Probate Court has jurisdiction to partition real estate among alienees of heirs or devisees, and under the Statute of Descents and Distributions, the share of a child who dies unmarried and under age descends to the surviving siblings of the same parent rather than to the surviving father.

Issues

Whether the Probate Court has jurisdiction to partition real estate where the original heirs have conveyed their interests to third parties.
Whether the share of a deceased child who died unmarried and under age descends to the surviving parent or to the surviving siblings of the same parent under the Statute of Descents and Distributions.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It was evidently the design of this section to place the alienee of the interest upon the same footing as the original heir or devisee”

“The respondent’s counsel contends that this case falls within the seventh clause of the statute, and such is our opinion.”

“all the estate that came to the deceased child by inheritance from such deceased parent, shall descend in equal shares to the other children of the same parent”

Synopsis

TTitdbb the two hundred and sixty-fourth section of the Act of May 1st, 1851, to regulate the Settlement of Estates, (Wood’s Dig. 418) the Probate Court has jurisdiction to make partition of the real estate of the deceased among the alienees of the “ heirs or devisees.” The design of the statute is to place the owner of the real estate—whether he be owner by direct purchase from the heir or devisee, or by descent, devise or judicial sale—in the situation of the heir or devisee for the purpose of partition.

The wife dies leaving a husband and their two infant children, a boy and a girl. The boy dies unmarried : Held, that the father inherited one-third of the wife’s separate estate; but that the surviving sister, and not the father, inherits the deceased boy’s share.

The descent in such case from the deceased child to the surviving child is governed by the seventh clause in our Statute of Descents and Distributions, (Wood’s Dig. 423) and not by the second clause. The second clause lays down the general rule, while the seventh clause provides for the case where the intestate leaves several children and one of them dies unmarried.

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring.

The deceased was the owner of a tract of land in Sonoma county, which she inherited from her mother, and which was her separate estate. The intestate died in July, 1856, being the wife of Victor Castro. They had two children of the marriage—of tender years. Victor, the youngest of these children, died about one year after his mother; the other child is still living. About six months after the infant’s death, the share in the real estate which would have been his was sold under execution against the father, (and also the father’s claim, as heir of the wife) as property of the latter, and the petitioners claim the title through certain mesne conveyances. The Court below ordered partition of the real estate, assigning the deceased infant’s share to the surviving sister, and allotting only the share which the husband held as heir of the wife to the vendees of the husband’s interest. The petitioners appeal.

.The first point which they make is, that the Probate Court had' no jurisdiction—the petitioners not being heirs or devisees, and thus not entitled to sue in this form. Sec. 264 of the Probate Act (Wood’s [99]Dig. 418) provides that “ partition of the real estate may be made as provided in this chapter, although some of the original heirs or devisees may have conveyed their shares to other persons, and such shares shall be.assigned to the person holding the same,in the same manner as they otherwise should have been to such heirs or devisees.” It was evidently the design of this section to place the alienee of the interest upon the same footing as the original heir or devisee; and we can see no reason for confining the power to the first alienee, nor to an alienee receiving a conveyance immediately from the heir or devisee. The statute should receive a liberal construction in favor of the remedy; and to carry out the clear policy of the act; and if we were to give^it the restricted meaning insisted on, great practical inconvenience would result. Parties bolding by descent, judicial sales, or devise, would be excluded, and also those claiming through sales by vendees of the' heir. The expenses would be greatly increased without corresponding benefit, and the distribution of estates be greatly retarded and embarrassed. We see no evils likely to result from giving the statute the broader construction, which places the real owner of the real estate in the situation of the heir or devisee, for the purpose of the partition of the property.

In re Estate of De Castro v. Barry

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