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


Civ. 13911.

Decided: March 29, 1949

A.B. Bianchi and Benj. C. Mickle, both of San Francisco, for appellant. Donahue, Richards, Rowell, & Gallagher, of Oakland, for respondent.

The illegitimate son of decedent's brother petitioned for distribution of the paternal aunt's estate. A judgment adverse to petitioner was entered on motion for judgment on the pleadings. The issue on the appeal is whether the petition pleads a case entitling petitioner to participate as an heir to the estate.

It is alleged that decedent was a sister of Joseph M. Noya, also known as Joe Marshall, who predeceased decedent; that petitioner was born the illegitimate son of Noya but that he was legitimated during his minority by his father's public acknowledgment of him as his son and by his receiving petitioner in his family as a legitimate son.

An answer to the question presented requires an interpretation of these code sections: Section 230 of the Civil Code reads: “The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption.” Section 255 of the Probate Code reads: “Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father, 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 by inheriting any part of the estate of the father's 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 is deemed legitimate for all purposes of succession. An illegitimate child may represent his mother and may inherit any part of the estate of the mother's kindred either lineal or collateral.” The exception found in the latter section relating to the right of a legitimated child to participate in the “estate of the father's kindred” in the event “his parents shall have intermarried” is the portion particularly applicable here.

It would seem that a simple reading of the two code sections would call for no Daedalian process of interpretation. Section 230 of the Civil Code fixes the status of an illegitimate child for all general purposes. Section 255 of the Probate Code is a statute of succession which specially limits the right of a legitimated child to succeed to the estate of the “father's kindred.” The latter section states in plain language that an illegitimate child is an heir of his mother and of his father who acknowledges him as such, but that he is not an heir to the estate of his father's kindred unless the parents have intermarried, and the father thereafter has acknowledged him as his child or adopts him into his family. The petition herein does not allege that either of these conditions were met, and on this appeal we must assume that they were not.

Appellant relies on Wolf v. Gall, 32 Cal.App. 286, 163 P. 346, 350; In re Estate of Lund, 26 Cal.2d 472, 159 P.2d 643, 649, 162 A.L.R. 606, and similar cases holding generally that section 230 of the Civil Code makes a legitimated child legitimate “for all purposes” and that he is then entitled to the benefit of the “general succession statutes.” There is no longer any quarrel with this view. Section 230 expressly states that that is the legal status of the child. However, no one of these cases involved the question at issue here—the right in the absence of a subsequent marriage, to succeed to the estate of the father's kindred. In the Wolf case the parents had intermarried and the claimants had been accepted and acknowledged as members of the family. The claimants sought to inherit from their paternal grandmother. In the Lund case the claimant sought to inherit from his own father. In the latter the exception found in section 255 of the Probate Code was in no way involved. In the Wolf case the issue was there and the District Court of Appeal merely held that the section had no application. However, in denying a transfer the Supreme Court filed its opinion saying [32 Cal.App. 286, 163 P. 351]: “We cannot agree either that section 1387, Civil Code [now section 255 of the Probate Code], has no application to children situated as are the respondents” and that, in so far as it lays down rules of succession contrary to general rules, it “must prevail as to any child born illegitimate.” In Re Estate of Lund, supra, the Supreme Court approved the interpretation of section 230 of the Civil Code found in the Wolf case. Whether it approved its own opinion in denial of a transfer does not appear, but it does appear that it did not pass upon the application of the exception in section 255 of the Probate Code and that such exception was not involved since Lund was seeking to establish the right to inherit directly from his father and not from the “father's kindred.” However, there can be no controversy on this—that all statutes must be read together and that an express exception must prevail over a general provision. Kahrs v. County of Los Angeles, 28 Cal.App.2d 46, 49, 82 P.2d 29. This principle forces the conclusion that an illegitimate child legitimated under section 230 of the Civil Code is not entitled to participate in the estate of his “father's kindred” unless the parents have intermarried and his father, “after such marriage” has acknowledged or adopted him into his family as provided in section 255 of the Probate Code.

The argument that such interpretation of section 255 would render it unconstitutional is not sound. A statute may not be declared unconstitutional as discriminatory unless it is clear that there is no reasonable basis for the discrimination. An illegitimate child is given the right to inherit from both the father and the mother. As to the estate of the “father's kindred” the section imposes an exception. The reason for the exception is clear. When the putative father is dead and the mother seeks to establish heirship in her illegitimate child the necessity of establishing the fact of intermarriage and acknowledgment of the paternity is a salutary requirement for the protection of the legitimate heirs against a false and fraudulent claim of paternity as is illustrated in the well known litigation in the Estate of Baird, ending in the third opinion of the Supreme Court in 193 Cal. 225, 223 P. 974. We must assume that the legislature had some such a contingency in mind and made the exception to meet it. The exception does not wrongfully discriminate between illegitimate children. It merely gives proper protection to the legitimate against fraudulent claims of paternity.

Judgment affirmed.

I concur only because I feel bound by the plain language of the Supreme Court in its opinion on denial of a hearing in Wolf v. Gall, 32 Cal.App. 286, 297, 163 P. 350: “To our minds the term ‘illegitimate child,’ as used in both sections 1387 and 1388, includes illegitimate children who have been legitimated, and in so far as they lay down rules of succession contrary to the general rules found in section 1386, Civil Code, must prevail as to any child born illegitimate.” Until the Supreme Court sees fit (if it should) to change this interpretation this court is bound by it. Speaking with any attempt at accuracy a legitimated child ceases to be an “illegitimate child” and if the question was not controlled so far as this court is concerned by the language of the Supreme Court above quoted I would accept the interpretation put on the code sections involved by Mr. Justice Kerrigan in Wolf v. Gall, supra, 32 Cal.App. 286, at pages 290–291, 163 P. 346; but the Supreme Court in the language quoted expressly disapproved that portion of the opinion of the District Court of Appeal and I must follow the course so charted.

NOURSE, Presiding Justice.

GOODELL, J., concurs.

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