Estate of McDill

• Decision Date: 24 July 1975
• Citation: 14 Cal.3d 831,537 P.2d 874,122 Cal.Rptr. 754
• Court: California Supreme Court
• Parties: , 537 P.2d 874 In re ESTATE of Minnie S. McDILL, Deceased. Florence VESEL, Petitioner and Appellant, v. George MacMillan MARTIN et al., Claimants and Respondents. L.A. 30405.

Page 754

122 Cal.Rptr. 754

14 Cal.3d 831, 537 P.2d 874

In re ESTATE of Minnie S. McDILL, Deceased.

Florence VESEL, Petitioner and Appellant, v. George MacMillan MARTIN et al., Claimants and Respondents.

L.A. 30405.

Supreme Court of California,

In Bank.

July 24, 1975.

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.

RICHARDSON, Justice.

In this probate controversy, a hearing was granted by this court, after decision by the Court of Appeal, Fourth Appellate District, Division Two, for the purpose of giving further study to the problems presented. After such study, we have concluded that the portion of Justice Kaufman's opinion for the Court of Appeal, dealing with the interplay of Probate Code sections 228, 230 and 296.4 correctly treats and disposes of the issues involved and, except for discussion of the rights of a nonappealing party, Evelyn Schumacher, set forth at the conclusion hereof, we adopt it as and for the opinion of this court. Such opinion (with appropriate deletions and additions as indicated) is as follows: ^*

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 the 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 amendment ² 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 its 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 (Italics 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 paragraph ⁶ of 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 thare 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, of 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, Supra, 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 (1924) 193 Cal. 388, 391, 224 [14 Cal.3d 837] P. 750; Gleason v. Spray (1889) 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 (1952) 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 to 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, (if either spouse leaves no such relatives) passing affected property to the next of kin of the decedent; and (3) (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 are to be applied), 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 . . ..' (Italics 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. ( ) 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 (1954) 43 Cal.2d 594, 600, 275 P.2d 467; Buelke v. Levenstadt (1923) 190 Cal. 684, 689, 214 P. 42; People ex rel. Thain v. City of Palo Alto (1969) 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 (1955) 45 Cal.2d 345, 355, 289 P.2d 450, 456 (overruled on another point in Vesely v. Sager (1971) 5 Cal.3d 153, 167); Bishop v. City of San Jose (1969) 1 Cal.3d 56, 65, 81 Cal.Rptr. 465, 460 P.2d 137; Place v. Trent (1972) 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...