Estate of Linehan

Deceased died intestate, leaving a widow, Ellen, but no issue, nor father, nor mother, nor brother, nor sister. The administrator is a son of a deceased brother of the deceased, and there are children of a deceased sister of the deceased. The widow, Ellen, died, leaving a son and daughter by her prior marriage.

*84 Mr. Finn claims distribution of the entire estate to the son and daughter of the widow, under subdivision 5, Section 1386 of the Civil Code.

Mr. Tyler claims that under subdivision 2 of the same section the nephew and niece of the deceased each take one-fourth of the estate. Subdivision 2 provides that the wife takes one-half, and “if there be no father then one-half, goes in equal shares to the brothers and sisters of decedent, and to the children of any deceased brother or sister, by right of representation. ”

At first view, it would seem to be very plain that the nephew and niece would take; but subdivision 5 provides that 11 if the decedent leaves a surviving husband or wife and no issue, and no father, nor mother, nor brother, nor sister, the whole estate goes to the surviving husband or wife.”

These two provisions can be harmonized only upon the theory that…