Leary

Concurring and dissenting. — I concur in the judgment of reversal, although I seriously doubt that the Legislature intended when it enacted section 254 of the Probate Code that kindred of the half blood should be excluded from an inheritance because they are not of the blood of the ancestor from whom the estate descended, while kindred of the whole blood likewise not of the blood of such ancestor are permitted to participate in such estate. But I can see no escape from the conclusion that section 226 of the Probate Code controls the descent of property insofar as kindred of the whole blood are concerned, and the mere circumstance of the existence of kindred of the half blood in the same degree who are excluded from the inheritance by the provisions of section 254 of the Probate Code should not operate to deprive kindred of the whole blood from succeeding to their inheritance under the provisions of section 226 of the Probate Code. I believe, however, that the inequities resulting from the construction placed upon section 254 of the Probate Code by the majority opinion should be corrected by the Legislature by appropriate amendment to said section.

I do not, however, agree with…

— In this proceeding to determine heir-ship the trial court held that the estate of Katherine Ryan, who died intestate, should be distributed in due course of administration equally to twenty-six first cousins of the deceased. The cousins are both paternal and maternal, and in each line some are of the half blood of the deceased. Elizabeth Leary, the only maternal whole blood cousin, and the three paternal whole blood cousins have filed appeals, which by stipulation are submitted on a single bill of exceptions.

Appellants contend that half blood cousins on the paternal side are excluded by section 254, Probate Code, from sharing in property which came to Katherine Ryan from her mother by descent, devise or gift, and that half blood cousins on the maternal side are excluded from paternal ancestral property.

Section 254, Probate Code, provides: “Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors, in which *500 case all those who are not of the blood of such ancestor must be excluded from such inheritance in favor of those who are.”…