In re Estate of Wardell

McKee, J.: Ada Wardell, a resident of the City and County of San Francisco, died February 25th, 1876, leaving, surviving her, her husband, two sons, and a daughter. Before her death, she had made her last will and testament, whereby she disposed of all her real and personal estate to her husband for life, and the remainder to her two sons. No provision was made in the will for the daughter. Her name was not mentioned in it, and it does not appear by anything in the will itself that the omission was intentional. The daughter was born out of lawful wedlock; she had never been legitimated by the subsequent intermarriage of her parents, or by acknowledgment or adoption of her father. Having been omitted from the will, she resisted the disposition of the property made by it, claiming that, as pretermitted heir of her mother, she was entitled to a distributive share in the estate. The Probate Court recognized the validity of the claim, and in the final distribution of the estate adjudged her to be entitled to the same distributive share in the estate of her deceased mother as though the mother had died intestate.

The sons appealed from this decision, and claim that the daughter of their deceased mother, being an illegitimate child, is not entitled to succeed by testamentary succession to any portion of her estate.

But by § 1307 of the Civil Code it is provided, that " when any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such [490]child, must have the same share in the estate of the testator as if he had died intestate.” In other words, the child succeeds to the same portion of the testator’s real and personal property that he would have succeeded to if the testator had died intestate. (§ 1306, Civ. Code.) He takes by succession, like one born after the making of the will.

It is contended, however, that the word “ children,” as used in this section, includes only legitimate children, because it is a rule of construction that whenever legislatures use a term without defining it, which is well known in the English law, they must be supposed to use it in the sense in which it is understood in the English law; and as the Legislature has made no attempt to define, limit, or qualify the term, or to change in the least its common-law signification, therefore, the term must mean only those born .in lawful wedlock.