Huberty v. McCubbin

CONLEY, P. J. Eva M. Donovan died intestate in San Andreas, California, on October 27, 1964. She was a resident of Calaveras County and left real property in San Andreas, as well as a substantial amount of personal property.

Grace McCubbin, a first cousin of decedent, was appointed and qualified as administratrix in due course. Thereafter, Leotta M. Huberty petitioned the court to determine heirship, alleging that there are 24 relatives in the fourth degree, who are entitled to share in the personal property, including Grace McCubbin, the administratrix, Louise Vicker and Violet Morrow, who are all adult first cousins related through decedent’s maternal grandparents, Lorenzo and Madalena Oneto, and 21 relatives in the fourth degree, who were first cousins through decedent’s grandmother, Honora Donovan; these 21 paternal first cousins were sons and daughters of six children born of a marriage between Honora Donovan and her second husband, John Huberty. Honora and her first husband had one son, James Donovan, the father of decedent. The 21 Huberty cousins were sons and daughters of half sisters and half brothers of decedent’s father, James Donovan. The three maternal first cousins were respectively daughters of a sister and of a brother of decedent’s mother, Kate Oneto.

Decedent never married; she had been an only child of the marriage of James Donovan and Kate Oneto, and when Eva M. Donovan died she left neither spouse, issue, parent, brother, sister, nor any child of a deceased brother or sister.

A hearing was held in due course on the petition to determine heirship. The court found that the three cousins, Mrs. McCubbin, Mrs. Vicker and Mrs. Morrow, are of the whole blood on the Oneto side and are cousins-german of decedent and related to her in the fourth degree, and also that the 21 surviving children of the three sons and three daughters of John and Honora Huberty are collateral kindred from the half blood on the Huberty side and are cousins of decedent and are also related in the fourth degree, citing Probate Code, section 253. That section states: 11 Collateral consanguinity is the relationship between people who spring from a common ancestor, but are not in a direct line. The degree is established by counting the generation from one relative up to the common ancestor and from the common ancestor to the other relative. In such computation the first relative is excluded, the other included, and the ancestor counted but once. Thus, brothers are related in the second degree, uncle and nephew in the third degree, cousins german in the fourth, and so on.”

[525]