Jewell, 28 Cal., p. 232, it was held that "descendants" are children, grandchildren, and their children, to the remotest degree. In People vs. De la Guerra, 24 Cal., p. 73, it was held that in computing degrees of consanguinity, the common law was the rule in all cases except in regard to descents and distributions, where the rule of the civil law prevailed. Inheritance of husband from wife and wife from husband, and the right to common property (known now as community property in the Codes), fully discussed in Payne vs. Payne, 18 Cal., p. 291, and cases there cited. There being no descendants of the decedent, and it clearly appearing the surviving husband or wife is entitled to the whole of the common (or community) property.— Cummings vs. Cheveier (No. 1), 10 Cal., p. 519. Real property conveyed to wife by deed, for consideration, during coverture, is community property. At husband's death she succeeds to half, in common with his heirs, and may maintain ejectment against any mere intruder. Hart vs. Robertson, 21 Cal., p. 346; McLean vs. Benton, 31 Cal., p. 29; Jewell vs. Jewell, supra, 28 Cal., p. 232; Scott vs. Ward, 13 Cal., p. 458. Wife entitled to half community property, etc.-Morrison vs. Bowman, 29 Cal., p. 337; Packard vs. Avellanes, 17 Cal., p. 525. As to inheritance by father, see Hardenburgh vs. Bacon, 33 Cal., p. 356. Possessory right to public lands an estate of inheritance.-Grover vs. Hawley, 5 Cal., p. 485. When, under Mexican law, one dies and his heirs in common enjoy property left for a long time without administration, and an action is brought for a settlement and division, they are treated as tenants in common, and all interested are necessary parties.-Valencia vs. Bernal, 26 Cal., p. 328. Estate being distributive, share not claimed by absent heir to be paid to State Treasury, and not paid to heirs other than absentee.-Pyatt vs. Brockman, 6 Cal., p. 418. See, also, Sec. 1693 (2 276), Co. Civ. Pro. Cal. Allowing non-resident aliens to inherit is constitutional.-13 Cal., p. 159 (State vs. Rogers). See Sec. (ante) 671: "Any person, whether citizen or alien, may take and hold property, real or personal;" and note thereto, as follows: Cal. Const., Art. I, Sec. 17; Ramaratz vs. Kent, 2 Cal., p. 558; Attorney General vs. Folsom, 5 Cal., p. 373; Sumssen vs. Bofer, 6 Cal., p. 250; Norris vs. Hoyt, 18 Cal., p. 217; Farrell vs. Enright, 12 Cal., p. 450; State of California vs. Rogers, 13 Cal., p. 159. Also, Sec. (ante) 672: "If a non Illegitimate inherit in certain events. resident alien takes by succession, he must appear and claim the property within five years from the time of succession, or be barred." The property in such case is disposed of as provided in Title VIII, Part III, Code of Civil Procedure. See Stats. 1856, p. 137; People vs. Rogers, 13 Cal., p. 159. 1387. Every illegitimate child is an heir of the children to person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate chil dren are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother, respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. NOTE.-Stats. 1850, p. 219, Sec. 2. The evidence supporting the claim under it, to inherit, should be clear and exclude every other rational conclusion than that the decedent was the parent. In the case of the Estate of Sandford, 4 Cal., p. 12, the Court say: "Nor do we in deciding the case upon this ground intend to intimate that any writing containing the evidence required would be sufficient to create an heir under the estate, when it appears upon the face of the instrument that there existed no such object or intention at the time it was made." In Hartwell vs. Jackson, 7 Texas, p. 576, it is said that there, without regard to the grounds of nullity, the issue of such marriages inherit as fully as legitimate children.-See Graham vs. Bennett, 2 Cal., is successor illegitimate 1388. If an illegitimate child, who has not been The mother acknowledged or adopted by his father, dies intestate, to without lawful issue, his estate goes to his mother, or child. in case of her decease to her heirs at law. NOTE.-Sec. 3 of the Act of April thirteenth, eighteen hundred and fifty, modified by adding, "has not been acknowledged or adopted by his father." 1389. The degree of kindred is established by the number of generations, and each generation is called a degree. NOTE.-Poydras vs. Livingston, 5 Martin's La. Reports, p. 292; Code Napoleon, p. 735; Poth. Success, ch. 1, Toul. IV, p. 165. In The People vs. De la Guerra, 24 Cal., p. 73, it is expressly declared that descents and distributions of our law are taken from and governed by the rules of the civil law. Stat. of 1851, p. 221, Sec. 4. Degrees of how kindred, computed. 1390. The series of degrees forms the line; the Same. series of degrees between persons who descend from one another is called direct or lineal consanguinity; and the series of degrees between persons who do not descend from one another, but spring from a common Same. Same. Same. Relatives of the half blood. ancestor, is called the collateral line or collateral consanguinity. NOTE.-Louisiana Civil Code, Art. 886. 1391. The direct line is divided into a direct line descending and a direct line ascending. The first is that which connects the ancestors with those who descend from him. The second is that which connects a person with those from whom he descends. NOTE.-Louisiana Code, Art. 886. 1392. In the direct line there are as many degrees as there are generations. Thus, the son is, with regard to the father, in the first degree; the grandson in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons. NOTE.-Louisiana Code, Art. 887. 1393. In the collateral line the degrees are counted by generations, from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the decedent is excluded, the relative 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. NOTE.-Montesq. Esprit des Lois, Liv. 27; Louisiana Code, Art. 888. 1394. Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance. NOTE.-Stats. 1850, p. 221, Sec. 4. The half blood are equally entitled with the full blood of equal degree. Red. L. of Wills, p. 903 (ed. 1866), Part II; 2 Kent's Com., p. 421. |