In re Curry

Wallace, J., delivered the opinion of the Court, Rhodes, C. J., Temple, J., and Sprague, J., concurring :

This is an appeal from a decree of distribution made by the Probate Court of the City and County of San Francisco. The decedent departed this life intestate, having never been married, and leaving neither father nor mother surviving him. He left surviving him, however, a sister, Mrs. Wade; also, a nephew, Robert C. Nock; and a niece, Sarah A. Bunton, the last two being respectively the children of two sisters of the intestate who had departed this life before him. It is conceded that under the Statute of Descents and Distributions these persons, being respectively the surviving sister and the nephew and niece of the intestate, are entitled to share in the distribution of his estate. But the decedent had a fourth sister, who married a Mr. Shaw; both she and her husband departed this life in the lifetime of the decedent, leaving surviving them a son of theirs, named George Shaw, a nephew of decedent, who, dying also in the lifetime of the decedent, left surviving the decedent four children, • viz: John, Camilla, Mary and George W. Shaw, who, of course, are respectively grand nephews and grand nieces of the decedent. The Court below excluded these grand nephews and grand nieces from any share in the esiaté, and the correctness of its decree in that respect is brought in question upon this appeal. The determination of the controversy involves the construction of that portion [531]of the third subdivision of the first section of the Statute .of Descents and Distributions, which is as follows :

“ 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 representationand the exact question is, whether or not the grandchildren of the deceased, Mrs. ShaAV, are to be considered as her “children” Avithin the expression of the statute, and, as such children, entitled to the share which their father would have taken had he survived the intestate.

There is no doubt that in the popular understanding the word “children” does not include grandchildren, but is confined to the descendants in the first degree—the immediate offspring; and it may generally be said, too, that the construction put upon this word by law accords Avith its popular signification. In the judicial construction of wills, where rules of interpretation are ¿ften greatly relaxed, the word is considered as not including by mere expression the descendants in the second degree, in the absence of other phrases or of circumstances shoAving that the testator really used the word in a more comprehensive sense, in AAhich case, of course, the ordinary meaning will be' extended so as to support his ascertained intention.