IN RE: KRUSE'S ESTATE. (1953)

This is an appeal from a decree determining heirship. The appellant is the adopted daughter of John Kruse, a predeceased brother of the intestate decedent, and the respondents are surviving brothers of said intestate decedent. The decree determined that appellant is not an heir of the decedent.

The applicable statute of succession is Probate Code, section 225: ‘If the decedent leaves neither issue nor spouse, the estate goes to his parents * * * or if both are dead in equal shares to his brothers and sisters and to the descendants of deceased brothers and sisters by right of representation.’

Appellant claims as a ‘descendant’ of a deceased brother. The uniform current of case law in this state is opposed to appellant's contention. The decisions commence with In re Darling's Estate, 173 Cal. 221, 159 P. 606. The precise holding in that case was that an adopted child may, despite the adoption, inherit from his grandfather by blood. In the course of its discussion the supreme court stated, 173 Cal. at page 226, 159 P. at page 608: ‘So far as we have been able to find, there is no decision given under statutes anything like ours, to the effect that the adopted child has any right of inheritance as to the ancestors or collateral kindred of the adopting parents, or is deprived by the adoption of any right of inheritance that he had as to the ancestor and collateral kindred of his parents by blood.’

Since this decision it has been consistently held that an adopted child while he inherits from his adopting parents does not inherit through them from the relatives of the adopting parents. In re Estate of Pence, 117 Cal.App. 323, 332–333, 4 P.2d 202; In re Estate of Jones, 3 Cal.App.2d 395, 39 P.2d 847; In re Estate of Stewart, 30 Cal.App.2d 594, 86 P.2d 1071; In re Estate of Pierce, 32 Cal.2d 265, 269, 196 P.2d 1; Probate Code, sec. 257.

Appellant relies on a series of cases construing the anti-lapse provision of Probate Code, sec. 92: ‘when any estate is devised or bequeathed to any kindred of the testator, and the devisee or legatee dies before the testator, having lineal descendants * * * such descendants take the estate so given by the will * * *.’ These cases hold an adopted child to be a ‘lineal descendant’ of his adopting parent within the meaning of this section. In re Estate of Moore, 7 Cal.App.2d 722, 47 P.2d 533, 48 P.2d 28; In re Estate of Tibbetts, 48 Cal.App.2d 177, 119 P.2d 368; In re Estate of Esposito, 57 Cal.App.2d 859, 135 P.2d 167.

Whatever logical inconsistency may appear to exist between these two lines of cases, and in an article in 25 Cal.L.Rev. at pp. 85–87 it is argued that there is no inconsistency, the very cases relied upon by appellant, while construing Probate Code, sec. 92 as including adopted children among ‘lineal descendants', recognize that this is not the rule in construing the statutes with regard to intestate succession. Thus in Re Estate of Tibbetts, supra, 48 Cal.App.2d at page 178, 119 P.2d at page 369, the court says: ‘It may be conceded that respondent was not an heir of the testatrix’, citing the Stewart and Pence cases. So in Re Estate of Esposito, supra, 57 Cal.App.2d at page 863, 135 P.2d at page 170, the court reviews the two lines of cases and concludes: ‘If those cases were correctly decided, as we believe they were, the right to take a legacy under section 92 is entirely independent of a right to inherit through the deceased devisee or legatee.’

The contention that there should be a distinction between ‘next of kin’ statutes, such as Probate Code, sec. 226, and a statute using the word ‘descendant’, as in Probate Code, sec. 225, is answered by the fact that In re Estate of Jones, supra, 3 Cal.App.2d 395, 39 P.2d 847, construed sec. 225 as not giving a right of inheritance to an adopted child.

In re Estate of Mercer, 205 Cal. 506, 271 P. 1067, involved the right of an adopted child to take community property which had passed from her adopting father to his widow. It involved therefore the right to inherit, although indirectly, from the adopting parent, not through him. In re Estate of Garcia, 34 Cal.2d 419, 210 P.2d 841 involves the rights of an illegitimate child who has been legitimated and is not in point on the question of the rights of an adopted child who is a stranger to the blood.

The fact that appellant was adopted in Nebraska cannot affect her rights of inheritance in California, further than to determine her status as an adopted child. The right to inherit in California depends on the statutes of California not those of Nebraska. In re Estate of Grace, 88 Cal.App.2d 956, 959, 200 P.2d 189; 2 Cal.Jur.2d 467.

Decree affirmed.

DOOLING, Justice.

NOURSE, P. J., and GOODELL, J., concur.