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21 Cal. 2d 498

Leary v. Scully

California Supreme Court

Decided January 23, 1943

California Supreme Court · decided 1943-01-23

Key passage — most relied on by later courts

“The statute is elliptical, and the words “all those” mean “all those kindred of the half blood.” The word “persons” cannot be supplied after the words “all those,” because that word is not the subject of the main proposition; and because supplying that word would blot out the exception. The rule of the statute then is, that the kindred of the half blood shall, in general, inherit equally with kindred of the whole blood; but that, as to ancestral estate, half bloods not of the blood of the ancestor from whom the estate came, shall not inherit, while whole-blood kindred of the intestate may inherit, though not of the blood of the ancestor.”

quoted by 1 later decision, including Matter of Estate of Chilton

“Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance came 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 ancestor must be excluded from such inheritance in favor of those who are.”

quoted by 1 later decision, including 247 Cal. App. 2d 523 - Estate of Donovan

Relies on In Re Turner's Estate · Hudnall v. Ham · 112 Ohio St. 269 - Center v. Kramer

Good law ✅— No negative treatment on recordhow we know

Decided 1943-01-23

How this case has been cited

Cited by 39 later decisions — most recently June 2005 · most notably 16 Cal. 3d 583 - In Re Marriage of Bouquet (1976), 5 Cal. 3d 129 - People v. Rogers (1971)

39 state decisions

1401943195019601970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

CARTER, J.,

¶1Concurring and dissenting. — I concur in the judgment of reversal, although I seriously doubt that the Legislature intended when it enacted section 254 of the Probate Code that kindred of the half blood should be excluded from an inheritance because they are not of the blood of the ancestor from whom the estate descended, while kindred of the whole blood likewise not of the blood of such ancestor are permitted to participate in such estate. But I can see no escape from the conclusion that section 226 of the Probate Code controls the descent of property insofar as kindred of the whole blood are concerned, and the mere circumstance of the existence of kindred of the half blood in the same degree who are excluded from the inheritance by the provisions of section 254 of the Probate Code should not operate to deprive kindred of the whole blood from succeeding to their inheritance under the provisions of section 226 of the Probate Code. I believe, however, that the inequities resulting from the construction placed upon section 254 of the Probate Code by the majority opinion should be corrected by the Legislature by appropriate amendment to said section.

¶2I do not, however, agree with that portion of the majority opinion which holds that the words “inheritance came to the intestate by descent, devise or gift of some one of his ancestors” as used in section 254 of the Probate Code embrace only real property and only the specific real property so ire*515ceived. Those words cannot be said to have any such restricted meaning. The thing which comes to the intestate is described as the “inheritance.” Inheritance is used as synonymous with succession in section 250 of the Probate Code, and the provisions on succession treat real and personal property the same. The word inheritance as used in the law of descent applies to both personal property and real property. (In re Turner’s Estate, 191 Wash. 145 [70 P.2d 1059].) The common law definition of inheritance which limited it to real property was founded upon the rule-that title to real property passed on death to the heirs while title to personal property passed to the personal representative. (Center v. Kramer, 112 Ohio St. 269 [147 N.E. 602].) But in California title to both real and personal property vests in the heirs or beneficiaries under the will upon death. (Prob. Code, § 300.) By virtue of the same rule, property coming by “descent” embraces both real and personal property. Property comes by descent when it is acquired by an heir by virtue of the intestacy of the decedent, and inasmuch as title to both kinds of property passes to the heirs and none to the personal representative, property which comes by descent is both real and personal. (See Hudnall v. Ham, 172 Ill. 76 [49 N.E. 985].)

¶3In a case involving the right of inheritance between whole bloods and half bloods under a statute, it has been squarely held that the words “gift, devise or descent” include both real and personal property. (In re Hullett’s Estate, 46 Ind. App. 412 [89 N.E. 509]; Rountree v. Pursell, 11 Ind. App. 522 [39 N.E. 747].)

¶4Curtis, J., concurred.

¶5Appellants’ petitions for rehearing were denied February 18, 1943. Shenk, J., Curtis, J., and Carter, J., voted for a rehearing.

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