IN RE: RYAN'S ESTATE. (1941)

This appeal, in an action to determine heirship, is taken by three first cousins of the decedent Katherine Ryan, who are of the whole–blood of the paternal ancestors, and by a first cousin of the whole–blood on the maternal side. The trial court ordered that the estate of the decedent be distributed in equal shares to the twenty–six first cousins of Katherine Ryan, without regard to the source of title.

It appears from the evidence that John Ryan, the father, and Julia Leary, the mother of deceased, were married in 1869. Katherine Ryan was born in 1872, and died on May 16, 1938. Her mother, Julia Leary Ryan, died February 5, 1901, and her father, John Ryan, died on July 12, 1913. Katherine Ryan left neither issue, spouse, parent, brother, sister nor decedent of a deceased brother or sister. Her next–of–kin, so far as disclosed, are four cousins of the whole–blood, who are the appellants, and twenty–two cousins of the half–blood, all in equal degree.

Appellants predicate error on the ruling of the trial court in refusing to admit testimony showing the ancestral origin of the estate of the deceased, Katherine Ryan, and urge that such refusal constituted prejudicial error. It is urged that proof that some of the property is of ancestral origin, would, under sections 226, 230 and 254 of the Probate Code, exclude the half–bloods, who are not of the blood of the ancestor from whom the estate descended, in favor of the kindred who are both of the whole–blood and the half–blood of the particular ancestor. The appellant, Elizabeth Leary, who is of the whole–blood on the maternal side, also claims paternal ancestral property to the exclusion of the half–blood on the maternal side.

It is the contention of respondents, first, that the record on appeal does not disclose any error prejudicial to appellant, as it fails to show that there is any “ancestral” property in the estate within the meaning of section 254 of the Probate Code, and second, that even though the record should disclose that part of the “inheritance” is ancestral, within the meaning of section 254, that nevertheless, the facts in the present case will not permit the application of the rule excluding kindred of the half–blood from sharing in the inheritance. We shall first proceed upon the assumption that the property, or a portion thereof, would be proven ancestral.

Section 254 of the Probate Code (formerly section 1394 of the Civil Code) is worded as follows: “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.”

The record discloses that the heirs to the estate of Katherine Ryan, deceased, are twenty–six first cousins. They are all related to deceased in the fourth degree. Three of the cousins are of the whole–blood on the paternal side. These cousins, together with one other cousin who is of the whole–blood on the maternal side, are the appellants in this suit. Six cousins are of the half–blood on the paternal side, and the remaining sixteen cousins are of the half–blood on the maternal side.

The appellants contend that the ancestral property which came to Katherine Ryan, the decedent, from her father cannot be shared in by the half–blood cousins of Katherine Ryan, who are of the blood of Katherine Ryan's mother, but who are not of the blood of her father. It is urged, also, by appellants, that any ancestral property shown to have come from the mother of decedent cannot be shared in by the half–blood cousins of decedent who are of the blood of decedent's father, John Ryan, but who are not of the blood of decedent's mother.

The position taken by appellants, assuming that the estate of the decedent is made up of ancestral property having been acquired by descent, devise or gift, from either her father or mother, would result in the distribution of the John Ryan ancestral property to the four appellants and to those respondents who are of the half–blood of the deceased and of the blood of John Ryan, to the exclusion of the respondents who are of the half–blood of the decedent and not of the blood of John Ryan; and as to any ancestral property having come from the mother of deceased, the appellants, and those respondents who are of the half–blood of the deceased and of the blood of deceased's mother, would share in the distribution thereof to the exclusion of those respondents who are of the half–blood of the deceased, and who are not of the blood of the mother.

The determination of the right of appellants to share in ancestral property to the exclusion of any of the respondents, turns upon the construction to be given to section 254 of the Probate Code.

The first clause of section 254, supra, reading, “Kindred of the half blood inherit equally with those of the whole blood in the same degree,” simply brings the kindred of the half–blood within the normal rule of succession. The second clause of this section of the Code, commonly referred to as the “exception” to the rule announced in the first clause thereof, does, however, under certain circumstances, operate so as to deny the kindred of the half–blood the right to inherit. The language of this “exception” clause is as follows: “* * * 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.”

It is now well settled in this jurisdiction that the “exception” to section 254, supra, excluding the half–blood not of the blood of the ancestor, may apply only when there are kindred of such blood who are related to the decedent in the same degree. In re Estate of Smith, 131 Cal. 433, 63 P. 729, 82 Am.St.Rep. 358; In re Estate of Belshaw, 190 Cal. 278, 212 P. 13; In re Estate of Sayles, 215 Cal. 207, 8 P.2d 1009.

The twenty–six relatives in the instant case are all in the same degree of consanguinity, each being a first cousin of decedent, some of the whole and some of the half–blood, and all related to the decedent in the fourth degree.

If we were to literally apply the provisions of section 254 of the Probate Code to the factual structure of this case, it would, as we will later point out, result in considerable confusion, and also contravene the holding in several cases in this state where certain phases of the case have been considered. A careful consideration of such cases, where section 254, supra, has been construed, compels us to conclude that where, as in the instant case, there are kindred of the whole–blood and kindred of the half–blood both on the paternal and maternal side, the rule of exclusion as to half–blood kindred cannot be applied so as to exclude any of the half–blood from a share of the inheritance. In support of this view, we do not deem it necessary to enter into a lengthy discussion as to the effect to be given the numerous decisions in which section 254 of the Probate Code and section 1394 of the Civil Code (the immediate source of section 254), have been considered. Some of the decisions, because of the fact that the claimants were not related to the intestate in equal degree, and others where no question of half–blood kindred was involved, contain language pertaining to the construction of those statutes which unquestionably is mere dictum. It does appear, however, from a study of these cases, that at least two rules of law pertaining to the construction of the foregoing Code sections have developed. One rule is that the exclusion of half–blood kindred can only take place in favor of whole–blood kindred who are of the blood of the ancestor, and the other rule which would clearly appear to follow from the language used in section 254, that the only half–blood kindred who can be excluded are those who are not of the blood of the ancestor. Obviously, these two rules cause a conflict when applied to the circumstances in the present case, but, nevertheless, they are rules of construction which have come down in decisions wherein the application of the “exception” clause of section 254 has been considered, and as heretofore stated, these rules of law prevent the application of the “rule of exclusion” where the heirs are kindred of the whole–blood and of the half–blood, both on the maternal and paternal side.

In the Estate of Sayles, 215 Cal. 207, 8 P.2d 1009, the court in its opinion discussed the application of the “exception clause” of section 254, and reviewed with considerable thoroughness the prior decisions construing the language contained in section 254. Although the question before the court in that case was whether or not section 254 could apply where the kindred were not related to decedent in the same degree, we nevertheless are of the opinion that the court there has correctly construed the prior decisions wherein has been raised the applicability of the “rule of exclusion” under the Code section involved, and we believe that the rule of law announced supports our conclusion in the instant case. In discussing the prior decisions wherein the construction of the “exception” clause was at issue, the court (at page 209 of 215 Cal., at page 1010 of 8 P.2d) said:

“After maturely considering each of these points, the opinion in Re Estate of Belshaw”, 190 Cal. 278, 212 P. 13, “following the decision in Re Estate of Smith”, 131 Cal. 433, 63 P. 729, 82 Am.St.Rep. 358, “advisedly concludes that the last clause of the quoted Code section constitutes but an ‘exception’ to the rule announced in the first clause thereof, and that said second clause is therefore operative only when there are kindred of the whole blood who are of the blood of the ancestor and ‘in the same degree’ as those of the half blood. In other words, as construed in the Estate of Belshaw, kindred of the half blood, under the first clause of the section, inherit equally with those of the whole blood ‘in the same degree,’ while under the second or last clause of the section, if the property be of ancestral origin, the kindred of the half blood, not of the blood of the ancestor, are excluded only in favor of those of the whole blood ‘in the same degree,’ providing, of course, that those of the whole blood are also of the blood of the ancestor.

“The construction of the section announced in the Estate of Belshaw and in the Estate of Smith, is a reasonable one, and we see no reason for now overruling those cases, or departing from their interpretation of the statute.”

Keeping in mind the two rules of law which we have concluded apply to the “exception” clause of section 254, an attempt to apply the “exclusion rule” to any of the kindred in the present case, immediately discloses the confusion and conflict that would arise. If the sixteen respondents, who are of the half–blood on the maternal side, were to be excluded from property of paternal ancestral origin, they could be excluded only in favor of the three appellants who are kindred of the whole–blood on the paternal side, because the rule is invoked only in favor of those who are to be preferred by reason of being of the whole–blood of the ancestor. The exclusion, therefore, cannot take place, as to paternal ancestral property, in favor of the half–blood on the paternal side, nor in favor of appellant Elizabeth Leary, who is of the whole–blood on the maternal side. There would also be a conflict with the rule that the only half–bloods who can be excluded are those who are not of the blood of the ancestor, if the paternal half–blood were excluded from property of paternal ancestral origin. The kindred of the whole–blood and the half–blood on the paternal side cannot be excluded in favor of the half–blood on the maternal side, as to maternal ancestral property, as this would violate the rule that the exclusion can only take place in favor of the heirs of the whole–blood who are also of the blood of the ancestor. The kindred of the whole–blood on the maternal side cannot exclude the kindred of the half–blood on the maternal side, and an attempt by the whole–blood and the half–blood on the maternal side to exclude the half–blood on the paternal side, would result in the maternal half–blood being preferred to the paternal half–blood, and again violate the last–mentioned rule.

The impossibility of applying the “exclusion rule” of section 254, supra, so as to favor any of the kindred in the sharing of ancestral property in the present case has, we believe, been sufficiently illustrated. We might add that “the rule of the common law excluding the half blood has never met with favor in the United States”. 16 Am.Jur., sec. 62, p. 833.

The ruling of the court in excluding the proffered evidence was therefore proper, as it was immaterial and irrelevant. The judgment was a proper one, and should therefore be affirmed. It is so ordered.

TUTTLE, Justice.

THOMPSON, Acting P. J., concurred.