In re the Estate of Donahue

By the Court, Sawyer, C. J. : James Donahue died in Santa Clara County on the 17th of August, 1862, leaving a surviving wife, Mary A. Donahue, and four infant children, Peter Donahue, Margaret Donahue, Mary Jane Donahue, and William E. Donahue. He left a will, by which, after making sundry bequests, he devised one third of all the residue of his estate, real and personal, to his said wife, and the remaining two thirds to his said children. On the 6th of August, 1864, one of said children, then an iufant, William E. Donahue, died in said county, in the sixth year of his age; and on the 1st of April, 1865, another of said children, Mary Jane Donahue, died in the third year of her age. Letters of administration having been duly issued upon the estate of said infant, William E. Donahue, deceased, such proceedings were had that a final decree of distribution of said estate was made, whereby one undivided third part of said estate was distributed to the surviving brother, Peter Donahue, another equal undivided third to the surviving sister, Margaret Donahue, and the remaining third to the heirs at law of the deceased sister, Mary Jane Donahue, to the entire exclusion of the said Mary Ann Donahue, mother of the deceased, who claimed [331]to be entitled, as one of the heirs at law of the said William E. Donahue, deceased, to an equal distribution or share of said estate with the surviving brother and sisters. The said Mary Ann Donahue excepted to the decree, and she now appeals therefrom.

The only question is as to whether she is entitled to a share as one of the heirs of the deceased infant son, under our statute of descents and distributions.

Section one of said statute, as amended in 1862, provides that, where any person having any estate not otherwise limited by marriage contract, shall die intestate, “ it shall descend and be distributed, subject to the payment of his or her debts, in the following manner:

“First— * * * Second— * * * Third—If there be no issue, nor husband, nor wife, nor father, then in equal shares to the brothers and sisters of the intestate, and to the children of any deceased brother or sister, by right of representation; provided, that, if he or she shall leave a mother, also, she shall take an equal share with the brothers and sisters (Stats. 1862, p. 570.)

In this case, the intestate, William E. Donahue, was an infant under six years of age, and he left surviving no issue, wife, or father; but he left .a brother, two sisters, and a mother. The case, then, is clearly within the category provided for in this subdivision and its proviso, and by its express terms the estate should have been divided in equal shares between the brother, sisters, and mother, unless there is some other provision affecting the question. We find no other provision applicable to the facts or in any way affecting the question, unless it be the seventh' subdivision of the same section, which reads as follows: