TITLE VII.

SUCCESSION.

SECTION 1383. Succession defined.

1384. Who first succeeds to possession of estates not devised, and for what purpose.

1385. Personal representatives.

1386. Succession to and distribution of property.

1387. Illegitimate children to inherit in certain events.

1388. The mother is successor to illegitimate child.

1389. Degrees of kindred, how computed.

1390. Same.

1391. Same.

Succession defined.

1392. Same.

1393. Same.

1394. Relatives of the half blood.

1395. Advancements constitute part of distributive share. 1396. Advancements, when too much, or not enough. 1397. What are advancements.

1398. Value of advancements, how determined.

1399. When heir, advanced to, dies before decedent.

1400. Inheritance of husband and wife from each other. 1401. Distribution of the common property in case of death

of the wife.

1402. Distribution of common property on death of the hus

band.

1403. Inheritance by representation.

1404. Aliens may inherit, when, and how.

1405. Succession not claimed, Attorney General to cause to be sold, and proceeds deposited.

1406. When the property and estate escheat to the State. 1407. Property escheated subject to charges as other prop

erty.

1408. Successor liable for decedent's obligations.

1383. Succession is the coming in of another to take the property of one who dies without disposing of it by will.

NOTE. It will be observed that the term "succession" has been substituted for that of "descents and distributions," so familiar to all. This has not been done without sufficient grounds. The term "descents" and "distributions" hitherto used in this State to denote the devolution of an inheritance, was derived from the ancient principle of the English law, that an inheritance could never ascend, or pass from

son to father, but must descend, or pass to descendants.
But as the American law allows property to pass in
both ways, there arises an incongruity in continuing
this use of the term; an incongruity which causes prac-
tical embarrassment, since the word 'descendants' must
still be confined to its strict meaning, and cannot em-
brace all those who may take by our Statute of Descents,
so called, and the word 'descend' must often be used in
the same view and in contradistinction to the devolution
of property in the ascending line. The term 'succes-
sion' is the more appropriate phrase of the civil law,
and this, already in common use among us, has been
adopted to denote the transmission of the property of
a decedent by operation of law.

Bouvier, under Title "Descent," says: The rules
of descent are prescribed by the statute laws of the
several States; and although they correspond in some
respects, it is doubtful whether in any two they are pre-
cisely alike.-Bouv. L. Dic, 1 vol., p. 463. And there
gives the laws of several States, including our own.

1384. The property, both real and personal, of any one who dies without disposing of it by will, passes, in the first instance, to the personal representative of such person as Trustee:

1. To make the provision for the surviving husband, purpose. or wife, or child, which is directed by Title XI, of Part III, of the CODE OF CIVIL PROCEDURE;

2. To apply the property to the payment of the debts of the decedent, according to the Title on Wills, and the provisions of the CODE OF CIVIL PROCEdure; and,

3. To distribute any remaining property among those entitled to succeed to the property of the decedent, according to the provisions of this Title.

NOTE.-The object of the very important change proposed by this Title is to simplify the settlement of estates, and particularly titles to real property, by vesting the whole estate of the decedent in the executors or administrators. By the existing law the term "real property," as between the heir and the executor, has a very different extent of meaning from the same term in other uses, and doubtless different from that popularly attached to it by testators and others contemplating the

Personal representa

tives.

Succession

to and dis

property.

provision which their families may require in case of their death. There seems to be no reason why the property of the landholder should be devolved by law upon one class of persons, while the property of the merchant, who may leave a family situated in the same circumstances, is devolved by law upon another class, or in a different method. For this reason, one method of distribution for both real and personal property is adopted, it being substantially the method the law heretofore pursued in respect to personal property.

1385. The personal representative of a decedent, within the meaning of that phrase as used in the preceding section, is the duly qualified and acting executor, administrator, or administrator with the will annexed, of the estate of the decedent.

1386.

NOTE.-See Title XI, Part III, of the Co. Civ. Pro.

Cal.

When any person having title to any estate

tribution of not otherwise limited by marriage contract, dies without disposing of the same by will, it is succeeded to, and must be distributed, subject to the payment of his debts, in the following manner:

1. If the decedent leaves a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband, or wife and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living, and the lawful issue of one or more deceased children, one third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child, by right of representation. If there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent they share equally, otherwise they take according to the right of representation;

2. If the decedent leaves no issue, the estate goes in equal shares to the surviving husband or wife, and to

the decedent's father. If there be no father, then one Same. half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation; if he leaves a mother also, she takes an equal share with the brothers and sisters. If decedent leaves no issue, nor husband, nor wife, the estate must go to his father;

3. If there be no issue, nor husband, nor wife, nor father, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation; if a mother survives, she takes an equal share with the brothers and sisters;

4. If the decedent leaves no issue, nor husband, nor wife, nor father, and no brother nor sister is living at the time of his death, the estate goes to his mother, to the exclusion of the issue, if any, of deceased brothers or sisters:

5. If the decedent leaves a surviving husband or wife, and no issue, and no father, nor mother, nor brother, nor sister, the whole estate goes to the surviving husband or wife;

6. If the decedent leaves no issue, nor husband, nor wife, and no father, nor mother, nor brother, nor sister, the estate must go to the next of kin, in equal degree, excepting that when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote; however:

7. If the decedent leaves several children, or one child and the issue of one or more other children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent descends in equal shares to the other children of the

Same.

same parent, and to the issue of any such other children. who are dead, by right of representation;

8. If, at the death of such child, who dies under age, not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his parent descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of representation;

9. If the decedent leaves no husband, wife, or kindred, the estate escheats to the State, for the support of common schools.

NOTE.-Stats. 1850, p. 219, Sec. 1; 1862, p. 569, Sec. 1; see, also, Sec. 1389, post, and note. The seventh clause of this section was sustained In Re the

Estate of F. C. Castro vs. Barry, 18 Cal., p. 96, wherein it was held that when the wife dies leaving a husband and their two infant children, a boy and a girl, the boy dies unmarried, the father inherited one third of the wife's separate property; but that the surviving sister, and not the father, inherits the deceased boy's share. Held, further, that the second clause or subdivision of this section did not control the descent or succession. Under the Spanish law in force in the Republic of Texas in 1839, the parents inherited the estate of a dying child in equal proportions.-Reese vs. Hicks, 13 Texas, p. 162. Title to personal estate of decedent vests in the heir, but the administrator is entitled to the possession relating back to decedent's death.-Johns. vs. Nolting, 29 Cal., p. 507. Heir may recover in ejectment without entry after death of testator; it is sufficient to show title.-Soto vs. Kroder, 19 Cal., p. 87. This right was discontinued by statutory amendment, so that in the case of Meeks vs. Hahn, 20 Cal., p. 620, it was held that ejectment, for property of which the decedent died seized, could not be maintained by his heirs until administration and settlement of the estate. This right of action has been, however, restored to the heirs, as also the right to the possession prior to settlement of the estate, by the Code of Civil Procedure. See Secs. 1581 (? 194), 1452 ( 114), and 1453 (2 114). In Jewell vs.