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District Court of Appeal, First District, Division 2, California.


Civ. 12177.

Decided: October 29, 1942

Weinmann, Quayle & Berry and Donald K. Quayle, all of Oakland, and George Olshausen, of San Francisco, for appellants. Walter K. Olds, and Richard tum Suden, both of San Francisco, for respondents.

In their petition for a rehearing the appellants criticize the portion of the opinion relating to nonapplication of section 1000 of the Probate Code. They say we have misstated the law of inheritance to such extent that a rehearing should be granted and the order reversed. We endeavored to draw a distinction between the language of 201 of the code, which declares that one–half of the community interest “belongs to” the surviving spouse, and the language of that and similar sections which declare that the community interest of the spouse, in absence of testamentary disposition “goes to” the surviving spouse. We expressed the view that the restrictions of section 1000 related to a petition for “distribution” of the estate of the deceased spouse on behalf of an “heir, devisee or legatee”, succeeding as such to the community interest of the deceased spouse, rather than to a petition of the surviving spouse for an assignment to her of her own community interest. But we did not intend to enter the controversy over the status of the surviving wife's interest in community property under the code sections arising out of the amendments of 1923 and 1927. We merely endeavored to emphasize the weakness of the contention that sections 1000 and 1001 should be strictly construed.

But, if we were in error in this view of the law, we are unable to perceive how it is material to the decision. The settled rule is that when a party refuses to stand upon his demurrer, but goes to trial where the alleged deficiencies of the petition are cured by the proof, he will not be permitted to attack the pleading, unless he has been deceived, or prejudiced thereby. 21 Cal.Jur. p. 273. Here the appellants not only waived whatever defects may have been asserted in the petition by reason of sections 1000 and 1001 of the code, but they aided in the proof of those facts by their stipulation.

The petition for rehearing is denied.

NOURSE, Presiding Justice.

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