Wolf

Arturo Wolf and Maria Julia Wolf, the respondents in this case, are the children born out of wedlock of Newman Wolf and Carmen Gonzales, and seek to have awarded to them a share in the property described in the complaint as heirs at law of Tobe Funkenstein, deceased, their grandmother, by right of representation of their deceased father, it being the claim of respondents that the subsequent marriage of their parents legitimated them by virtue of the provisions of section 215 of the Civil Code, and that their *Page 288 adoption by their father into his family in connection with such marriage also had for its effect their legitimation under section 230 of the same code. The court, among other things, decreed that the respondents are heirs at law of said Tobe Funkenstein, and entitled to succeed to a part of her estate, and it is from this portion of the judgment that the defendants have appealed. The judgment is declared to be erroneous for various reasons, among them being the alleged failure of the respondents to prove that they were the children of Newman Wolf, that the marriage ceremony between Wolf and their mother was in fact a marriage; the contention that there was no…

We concur in the conclusion of the district court of appeal as to the capacity of the respondents to inherit from Tobe Funkenstein, through their deceased father, Newman Wolf, but in denying the application for a hearing in this court we deem it proper to say that we are not entirely in accord with all the reasoning by which that conclusion is reached by that court. We cannot agree either that section 1387 of the Civil Code has no application to children situated as are the respondents, or that, fairly construed, *297 that section excludes respondents from taking a share of the estate of the mother of their deceased father. To our minds the term “illegitimate child” as used in both sections 1387 and 1388 includes illegitimate children who have been legitimated, and in so far as they lay down rules of succession contrary to the general rules found in section 1386 of the Civil Code, must prevail as to any child born illegitimate. (See Estate of De Cigaran, 150 Cal. 682 , [ 89 Pac. 833 ].) But, in our opinion, section 1387 should be construed as not providing any rule contrary to section 1386, in so far as children situated as respondents are concerned. When the section expressly…

Arturo Wolf and Maria Julia Wolf, the respondents in this case, are the children born out of wedlock of Newman Wolf and Carmen Gonzales, and seek to have awarded to them a share in the property described in the complaint as heirs at law of Tobe Funkenstein, deceased, their grandmother, by right of representation of their deceased father, it being the claim of respondents that the subsequent marriage of their parents legitimated them by virtue of the provisions of section 215 of the Civil Code, and that their *288 adoption by their father into his family in connection with such marriage also had for its effect their legitimation under section 230 of the same code. The court, among other things, decreed that the respondents are heirs at law of said Tobe Funkenstein, and entitled to succeed to a part of her estate, and it is from this portion of the judgment that the defend! ants have appealed.

The judgment is declared to be erroneous for various reasons, among them being the alleged failure of the respondents to prove that they were the children of Newman Wolf, that the marriage ceremony between Wolf and their mother was in fact a marriage; the contention that there was no…