Burk

Henrietta Frear died intestate October 6, 1958, leaving neither issue nor spouse nor brothers nor sisters. She was the last survivor of six children of Walter and Fannie Frear. Surviving her are nine nephews and nieces, the children of deceased brothers and sisters of decedent, as follows: Irma Wallace and Bess Woodward Bogle, daughters of decedent’s sister Elizabeth; Beatrice Frear, daughter of decedent’s brother Hugo; Margaret Frear and Virginia Wild, adoptive daughters of decedent’s brother Walter; and Frear Burk, Norval Burk, Bois Burk and Dean Burk, sons of decedent’s sister Caroline. A brother of decedent, Philip Frear, predeceased decedent without leaving issue. There are no deceased nephews or nieces.

The four sons of intestate’s sister Caroline appeal from an *830 order fixing inheritance taxes and from a decree distributing the estate to the heirs by right of representation.

Appellants contend that they are entitled to succeed per capita. They rely upon Estate of Nigro, 172 Cal. 474 [ 156 P. 1019 ], decided in 1916 and Estate of Ross, 187 Cal. 454 [ 202 P. 641 ], decided in 1921, which held that when such relationships existed the nephews and nieces succeeded to equal…