IN RE: ESTATE of Minnie S. McDILL (1974)

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

IN RE: ESTATE of Minnie S. McDILL, etc., Deceased. Florence VESEL, Petitioner and Appellant, v. George MacMillan MARTIN et al., Claimants and Respondents.

Civ. 13767.

Decided: November 18, 1974

Sullivan & Brown, William H. Sullivan and John Adler, Riverside, for petitioner and appellant. Langford & Lane, James M. Lane, San Diego, and Merrill Brown, Indio, for claimants and respondents.

OPINION

Petitioner, Florence Vesel, filed a petition for determination of heirship in the estate of Minnie S. McDill. She appeals from a judgment which ordered the distribution of the estate one-half to the petitioner and her sister, blood nieces of the decedent, and one-half to the blood cousins of the decedent's predeceased spouse, George W. McDill.

The trial below was based on stipulated facts. Petitioner and her sister, Evelyn Schumacher, are the issue of the decedent's predeceased brother. The cousins, Genevieve M. Morse, Athol C. Martin, and George M. Martin, are the issue of George W. McDill's mother's sister. The whole of decedent's estate is former community property of the decedent and her predeceased husband. The trial court found that the nieces are next of kin and only heirs at law of the decedent, and that the cousins are the next of kin and only heirs at law of George W. McDill. Petitioner's grievance is the award of one-half of the estate to the cousins.

Contentions

Petitioner contends that she and her sister, as nieces of decedent, are entitled to the entire estate under Probate Code, sections 228 and 230.¹ Petitioner makes two arguments: (1) the 1969 amendment² to section 228, providing an alternate distribution of the community property when it would otherwise escheat, does not operate if distribution is provided for in section 230, and (2) the cousins are not members of the class entitled to take under section 228.

Relevant Probate Code Sections

Before is amendment in 1969, section 228 read as follows:

‘If the decedent leaves neither spouse nor issue, and the estate, or any portion thereof was community property of the decedent and a previously deceased spouse, and belonged or went to the decedent by virtue of its community character on the death of such spouse, or came to the decedent from said spouse by gift descent, devise or bequest, or became vested in the decedent on the death of such spouse by right of survivorship in a homestead, or in a joint tenancy between such spouse and the decedent or was set aside as a probate homestead, such property goes in equal shares to the children of the deceased spouse and their descendants by right of representation, and if none, then one-half of such community property goes to the parents of the decedent in equal shares, or if either is dead to the survivor, or if both are dead in equal shares to the brothers and sisters of the decedent and their descendants by right of representation, and the other half goes to the parents of the deceased spouse in equal shares, or if either is dead to the survivor, or if both are dead, in equal shares to the brothers and sisters of said deceased spouse and to their descendants by right of representation.’ (Stats.1931, ch. 281, p. 597, as amended by Stats.1939, ch. 1065, p. 2992.)3 (Emphasis added.)

In 1969 the Legislature amended section 228 by adding a second paragraph.⁴ This paragraph was itself amended in 1970. It now reads:

‘If any of the property subject to the provisions of this section would otherwise escheat to this state because there is no relative, including next of kin, of one of the spouses to succeed to such portion of the estate, such property shall be distributed in accordance with the provisions of Section 296.4 of this code.’ (Stats.1970, ch. 345, pp. 738, 739.)⁵

The second paragraph⁶ or section 296.4, added in 1968, provides:

‘If a portion of the estate which was the community property of the husband and wife would otherwise escheat to the state under this section and Sections 201, 228, and 231 because there is no relative, including next of kin, of one of the spouses to succeed to such portion of the estate, such portion of the estate shall be distributed in equal shares to the children of the other spouse and to their descendants by right of representation, or if such other spouse leaves no children, nor descendants of a deceased child, in equal shares to the parents of such other spouse, or if either is dead to the survivor, or if both are dead, in equal shares to the brothers and sisters of such other spouse and to their descendants by right of representation, or if such other spouse leaves neither parent, brother, sister, nor descendant of a deceased brother or sister, such portion of the estate goes to the next of kin of such other spouse in equal degree . . .’ (Stats.1968, ch. 1407, pp. 2767, 2768.)

Section 230 provides:

‘If there is no one to succeed to any portion of the property in any of the contingencies provided for in the last two sections [228 and 229], according to the provisions of those sections, such portion goes to the next of kin of the decedent in the manner hereinabove provided for succession by next of kin.’ (Stats.1931, ch. 281, p. 597.)

Discussion and Disposition

The central issue of this case is how sections 228, 230 and 296.4 work together. The petitioner contends that in this case section 230 controls; the cousins contend that section 296.4 is applicable before, and is a condition precedent to, the application of section 230. We agree with petitioner.

Prior to the amendment of section 228, if the decedent left no next of kin, application of sections 230 and 231 could result in escheat even if the predeceased spouse left next of kin.⁷ The purpose of the amendment to section 228 was to further the legislative policy against escheat by providing an alternative distribution of the community property under section 296.4 if section 231 would force this escheat. (Mannheim v. Superior Court, 3 Cal.3d 678, 685, 691, 91 Cal.Rptr. 585, 478 P.2d 17.)

Sections 228, 230 and 296.4 are in pari materia and must be construed together as one statute. (People v. La Barre, 193 Cal. 388, 391, 224 P. 750; Gleason v. Spray, 81 Cal. 217, 221, 22 P. 551.) ‘Where possible, all parts of a statute should be read together and construed to achieve harmony between seemingly conflicting provisions rather than holding that there is an irreconcilable inconsistency. [Citations.]’ (Wemyss v. Superior Court, 38 Cal.2d 616, 621, 241 P.2d 525, 528.)

Construing these three sections together, we hold the Legislature intended to create the following scheme: (1) section 228, paragraph one, is be applied first, distributing each one-half of the community property to the named classes of relatives; (2) section 230 is to be applied second, passing affected property to the next of kin of the decedent; and (3) section 228, paragraph two, and section 296.4, paragraph two, are to be applied third, passing affected property to the blood relatives of the predeceased spouse.

This result is compelled by the triggering language of the amendment to section 228 itself: ‘If any of the property . . . would otherwise escheat to this state . . ..’ (Emphasis added.) Property would be in danger of escheat only if there were no next of kin of the decedent to take under section 230. Thus as long as there are next of kin of the decedent, the operative language of the amendment to section 228 is not triggered.

Under this construction, each of the sections plays a role in the legislative scheme. Section 228, paragraph one, distributes the community property to the named relatives of both spouses. If either spouse leaves no such relatives, section 230 passes the affected property to the next of kin of the decedent. If there are no next of kin of the decedent to take the section 230 property, the second paragraphs of sections 228 and 296.4 pass the property to the next of kin of the predeceased spouse. Only if both spouses leave no next of kin does section 231 cause an escheat.

On the other hand, if the cousins' view is adopted, section 230 is nullified as to section 228 property. As long as there are any next of kin of one of the spouses, the cousins argue, such kindred would take that spouse's share of the property under section 296.4. However, in the event there were no such kindred, section 296.4, by its own terms, would distribute the property to the relatives of the other spouse. Since section 296.4 would thus account for all possibilities, section 230 would be rendered meaningless.

It is assumed that the Legislature has in mind existing laws when it passes a statute. (Estate of Simpson, 43 Cal.2d 594, 600, 275 P.2d 467; Buelke v. Levenstadt, 190 Cal. 684, 689, 214 P. 42; People ex rel. Thain v. City of Palo Alto, 273 Cal.App.2d 400, 406, 78 Cal.Rptr. 240.) ‘The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.’ (Cole v. Rush, 45 Cal.2d 345, 355, 289 P.2d 450, 456 [overruled on another point in Vesely v. Sager, 5 Cal.3d 153, 167, 95 Cal.Rptr. 623, 486P.2d 151]; Bishop v. City of San Jose, 1 Cal.3d 56, 65, 81 Cal.Rptr. 465, 460 P.2d 137; Place v. Trent, 27 Cal.App.3d 526, 532, 103 Cal.Rptr. 841.) The Legislature intended section 230 to retain its vitality, and we, therefore, are constrained to interpret section 228 so as to render section 230 valid. (See Civ.Code, § 3541.)

Petitioner also contends the cousins are not within the class of takers described in the first paragraph of section 228. The cousins argue in substance that the Legislature, in amending section 228 and 296.4, intended to enlarge the named class of relatives who can take section 228 property. We agree with petitioner.

The cousins' argument rests on the phrase ‘no relative, including next of kin, of one of the spouses' found in both sections 228 and 296.4. They suggest this phrase operates to create a residual category for each spouse of next of kin who take in the event such spouse leaves no named section 228 relatives. This view is untenable.

The second paragraph of section 228 comes into play only if section 230 would otherwise not prevent escheat. The first paragraph of section 228 contains no mention of ‘next of kin.’ It is section 230 which mentions this phrase. We interpret the reference to ‘next of kin’ in section 228 to be a reference to section 230, that is, to the next of kin of the decedent.

The amendments to section 228 do not enlarge the class which first shares in the community property of the decedent and the decedent's predeceased spouse. The Legislature has specifically designated the class of relatives to whom the property is to be distributed. If the Legislature had intended section 228 to allow the next of kin of a spouse to succeed where such spouse leaves no children, parents, or lineals of parents, it could easily have done so by adding a phrase to that effect to the first paragraph of the section. The Legislature did not insert such a provision, and it is not our province to do so. ‘In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted. . . .’ (Code Civ.Proc., § 1858.)

We thus find the Legislature, by leaving the first paragraph of section 228 substantially intact, did not intend to enlarge the class of takers in the first instance.

The cousins contend that the purpose of the amendment to section 228 was to provide the same distribution of community property where there is simultaneous death of the spouses as where there is the prior death of one spouse. This contention is not persuasive.

In the simultaneous death case each spouse's share of the community property is treated as separate property. (§ 296.4, 1st par.) In the predeceased spouse case, section 230 applies to prefer the next of kin of the decedent over the collateral next of kin of the predeceased spouse.

‘It is a generally accepted principle that in adopting legislation the Legislature is presumed to have had knowledge of existing domestic judicial decisions and to have enacted and amended statutes in the light of such decisions as have a direct bearing upon them. [Citations.]’ (Buckley v. Chanwick, 45 Cal.2d 183, 200 [fn. omitted], 288 P.2d 12, 22; Cole v. Rush, supra, 45 Cal.2d 345, 355, 289 P.2d 450; Whitley v. Superior Court, 18 Cal.2d 75, 78, 113 P.2d 449.)

In 1967, the Court of Appeal decided State of California v. Broderson, 247 Cal.App.2d 797, 56 Cal.Rptr. 58. In Broderson, the decedent spouse left no known heirs. The predeceased spouse left two sisters, a brother and a niece. The court held that though the blood relatives of the predeceased spouse were entitled to the one-half of the community property attributable to that spouse, the other half escheated because they were not next of kin of the decedent within the meaning of section 230, citing Estate of Roberts, 85 Cal.App.2d 609, 194 P.2d 28. The court said: ‘The rule of descent established by Roberts has stood unchallenged for over 17 years . . .. The Legislature has not moved to alter or change its rule in any manner, as it could do at any time.’ (247 Cal.App.2d at pp. 802–803, 56 Cal.Rptr. at p. 62.)

Two years after Broderson, the Legislature did move to change the rule of descent resulting from Roberts by amending section 228. As was pointed out in Mannheim v. Superior Court, supra, 3 Cal.3d 678, at page 685, 91 Cal.Rptr. 585, 478 P.2d 17, the purpose and effect of this amendment was to prevent escheat of community property if either spouse leaves any heirs. The preference for the next of kin of the decedent caused by section 230 does not frustrate this legislative purpose in any way.

The cousins argue that the position we adopt is unfair to the next of kin of the predeceased spouse. While it is true that section 230 prefers the next of kin of the decedent over the next of kin of the predeceased spouse, intestate succession is wholly statutory. Any inequality which results from the operation of sections 228, 230 and 296.4 has been engendered by the Legislature itself. The Legislature has considered these sections in both 1969 and in 1970. If a different result had been desired, there was ample opportunity to suitably alter the statutes in question.

The petitioner and her sister are entitled to one-half the decedent's estate since they are within the class of relatives named in section 228, paragraph one, as the trial court found. Petitioner is also entitled to her one-half share of the other half of decedent's estate under section 230, since the predeceased spouse leaves no relatives within such named class.⁸

Judgment is reversed with directions to the trial court to enter judgment awarding petitioner one-half the estate, Evelyn Schumacher one-fourth the estate, and respondents one-fourth the estate.

FOOTNOTES

1.  All section references are to the Probate Code, unless otherwise specified.

2.  As further amended in 1970.

3.  It is clear that under this language the cousins would not be qualified to take, since they are not members of the named class of relatives, i. e., they are not parents, siblings or descendants of siblings of the predeceased husband. (See Estate of Howard, 1 Cal.App.2d 560, 36 P.2d 852.)Although section 228 also affects other property, its primary application is to community property. Therefore, we have used the terms ‘community property,’ and ‘section 228 property’ interchangeably. In this context, reference to community property should be read to include reference to the other section 228 property.

4.  The Legislature added:‘If any of the property subject to the provisions of this section would otherwise escheat to this because there is no relative, including next of kin of the decedent or of his predeceased spouse, such property shall be distributed in accordance with the provisions of paragraph 2 of Section 296.4 of this code.’ (Stats.1969, ch. 856, pp. 1688, 1689.)The amendment also deleted the comma after ‘estate’ in the first paragraph.

5.  Section 231 provides for escheat to the state where there is no one to take a decedent's estate by testate or intestate succession other than a government or governmental subdivision or agency.

6.  The first paragraph governs the simultaneous death of both spouses.

7.  For example, in the present case if the nieces had predeceased the decedent. (See also, Mannheim v. Superior Court, 3 Cal.3d 678, 683–684, 91 Cal.Rptr. 585, 478 P.2d 17; State of California v. Broderson, 247 Cal.App.2d 797, 56 Cal.Rptr 58.)

8.  Petitioner's sister, Evelyn Schumacher, did not appeal from the distribution ordered by the trial court. The judgment of the trial court, therefore, is final as to her.

KAUFMAL, Associate Justice.

KERRIGAN, Acting P. J., and TAMURA, J., concur.