Bassett v. Cleveland

SALSMAN, J. This is an appeal from a judgment determining interest in the estate of Catherine Lima, deceased.

These are the undisputed facts: George Lima was first married to “Doe” Lima. (Her given name does not appear in the record.) There were three children the issue of this marriage, namely Olive Lima Bassett, Chester H. Lima and William A. Lima, and they are the appellants herein.

Upon the death of “Doe” Lima, George Lima married Catherine Lima. Catherine Lima had been married previously and had one child, Bernice May Cleveland, respondent herein. George Lima and Catherine Lima remained husband and wife for 26 years, until the death of George Lima on August 20,1956. They had no children.

Catherine Lima died intestate on February 22,1961.

On July 14, 1950, George Lima had executed and delivered a deed to certain real property to his wife Catherine, and this real property comprises the principal asset of the estate of Catherine.

Appellants, as children of George Lima and stepchildren of Catherine, claim to be entitled to three-fourths of the estate of their stepmother, and that respondent Bernice May Cleveland is entitled to one-fourth of the estate.

The probate judge found that Bernice May Cleveland, as surviving issue of Catherine Lima, was entitled to the whole estate and entered judgment accordingly.

Appellants argue that, as stepchildren, they should share equally with respondent in property which came to the decedent from their natural father. Appellants cite Estate of Abdale, 28 Cal.2d 587 [170 P.2d 918], and contend that the source of the property must determine its distribution, and argue by inference that Probate Code section 229 is applicable.1 Estate of Abdale is not applicable to the undisputed facts here. In Estate of Abdale the decedent was sur[398]vived by neither spouse nor issue. Here issue survives the decedent. For the same reason, Probate Code section 229 can have no application, for that section applies only where the decedent leaves neither spouse nor issue. Estate of Auclair, 75 Cal.App.2d 189, 195 [170 P.2d 29], correctly interprets this section where it is said: “Section 229 is applicable only if there is no ‘issue,’ that is, no lineal descendants from the decedent and any spouse—one prior to the predeceased spouse, the predeceased spouse, or one subsequent to the predeceased spouse. The decedent in this case left issue and section 229 is not relevant to the determination of heir-ship in this ease, which eliminates consideration of the two children, the issue of George Auclair and a prior predeceased wife as heirs in this case....”