In re Estate of De Castro v. Barry

Citations

• 18 Cal. 96

Syllabus

<p>TTitdbb the two hundred and sixty-fourth section of the Act of May 1st, 1851, to regulate the Settlement of Estates, (Wood’s Dig. 418) the Probate Court has jurisdiction to make partition of the real estate of the deceased among the alienees of the “ heirs or devisees.” The design of the statute is to place the owner of the real estate—whether he be owner by direct purchase from the heir or devisee, or by descent, devise or judicial sale—in the situation of the heir or devisee for the purpose of partition.</p> <p>The wife dies leaving a husband and their two infant children, a boy and a girl. The boy dies unmarried : Held, that the father inherited one-third of the wife’s separate estate; but that the surviving sister, and not the father, inherits the deceased boy’s share.</p> <p>The descent in such case from the deceased child to the surviving child is governed by the seventh clause in our Statute of Descents and Distributions, (Wood’s Dig. 423) and not by the second clause. The second clause lays down the general rule, while the seventh clause provides for the case where the intestate leaves several children and one of them dies unmarried.</p>