Hanson v. Wilson

PETERS, P. J. This appeal from a decree of the probate court determining that Celeste Hanson is the sole heir at law of the decedent, Emma L. Smith, approaches the frivolous.

The appeal is taken on an agreed statement of facts. It therein appears that Emma L. Smith died intestate in San Francisco, leaving an estate of personal property appraised at in excess of $20,000. She left five surviving brothers and sisters and four descendants of a predeceased brother, all of whom are appellants here. Respondent, Celeste Hanson, is the only descendant of a predeceased sister, and so, of course, is related by blood to the decedent as a grandniece. It is agreed that decedent left no surviving spouse, parents, children, or [292]grandchildren, unless respondent inherits as a grandchild as the result of an adoption proceeding. It is agreed that in 1893, in the State of Washington, decedent and her then husband, while residents of that state, adopted respondent’s father, Albert MeAlpine. Albert was then the only child of Celestine MeAlpine, a sister of decedent. Celestine had died prior to the adoption. Albert predeceased the decedent, leaving respondent as his only child. It is the theory of appellants that, under section 225 of the Probate Code, each of the surviving sisters and brothers is entitled to a one-seventh share of the estate; that the four descendants of the deceased brother are entitled to a one-seventh share, and that respondent, as the sole descendant of a predeceased sister, is entitled to a one-seventh share. In other words, appellants urge that, even though respondent is the child of an adopted child, she takes only as a grandniece of decedent and not as a grandchild, or, more accurately, that she does not take through her deceased father, but only through consanguinity as a grandniece. The point is without merit, and is settled adversely to appellants’ contentions by both the statutory and case law of this state. Section 222 of the Probate Code provides that if the decedent leaves no surviving spouse, but leaves issue, the entire estate goes to such issue. Section 257 of the Probate Code provides that: “An adopted child succeeds to the estate of one who has adopted him, the same as a natural child. ...” Both before and after the adoption of the Probate Code it has been held that children of adopted children take as issue or lineal descendants of the adopting parents. In Estate of Winchester, 140 Cal. 468 [74 P. 10], the question was whether legacies contained in the will of an adopting parent for the benefit of children of the adopted child were subject to the then Inheritance Tax Act. It became necessary to determine whether children of adopted children were heirs of the adopting parent. If so, the tax did not apply. In holding that they were in fact heirs and lineal descendants of the adopting parent, and were accordingly exempt from the tax, the court held (p. 469) that “the children of such adopted child take by inheritance as issue of the adopting father [citing cases]. Otherwise, the child adopted and the adopting parent would not sustain towards each other the relation of parent and child.” This case has been cited with approval on this point in many cases. (Estate of Hunsicker, 65 Cal.App. 114, 119 [223 P. 411] ; In re Darling, 173 Cal. 221, 225 [159 P. 606] ; Estate of Moore, 7 Cal.App.2d 722, 725 [47 P.2d 533, 48 P.2d