Grapes v. Schaffner

O’DONNELL, J. pro tem.* This is an appeal from a decree of distribution wherein the lower court ordered distribution of all of the property of the above entitled estate to the heirs of decedent, to the exclusion of the heirs of decedent’s predeceased spouse.

Olga Bell, the decedent died intestate on October 23, 1955. The administrator of decedent’s estate filed, in due course, his petition for distribution in which he alleged that the entire estate was the separate property of decedent and prayed that it be distributed to her heirs. The appellants, as heirs of decedent’s predeceased husband Glenn R. Bell, filed objections to the petition and prayed that the estate be distributed in accordance with the provisions of section 228 of the Probate Code. After a hearing, the lower court found that the property of the estate of Olga Bell was her separate property and therefore ordered it all distributed to her heirs.

Glenn and Olga married in 1923. Glenn died in 1936. At the time of his death Glenn and Olga held in joint tenancy real and personal property of the value of $23,661.48. It has been stipulated in this proceeding that said property was community property. At the time of Olga’s death in 1955, she left estate appraised at $26,661.12. The estate consisted of jewelry appraised at $490, and cash in the sum of $26,171.12.

Neither Glenn nor Olga left any surviving issue. Appellants are the nieces and nephews of Glenn. Respondents are the [64]nephew, nieces and sisters of Olga. Section 228 of the Probate Code reads:

“If the decedent leaves neither spouse nor issue, and the estate, or any portion thereof was community property of the decedent and a previotisly deceased spouse, and belonged or went to the decedent by virtue of its community character on the death of such spouse, or came to the decedent from said spouse by gift, descent, devise or bequest, or became vested in the decedent on the death of such spouse by right of survivorship in a homestead, or in a joint tenancy between such spouse and the decedent or was set aside as a probate homestead, such property goes in equal shares to the children of the deceased spouse and their descendants by right of representation, and if none, then one-half of such community property goes to the parents of the decedent in equal shares, or if either is dead to the survivor, or if both are dead in equal-shares to the brothers and sisters of the decedent and their descendants by right of representation, and the other half goes to the parents of the deceased spouse in equal shares, or if either is dead to the survivor, or if both are dead, in equal shares to the brothers and sisters of said deceased spouse and to their descendants by right of representation.”