Estate of Wardell

1 Myrick 224

• Court: Superior Court of California, County of San Francisco
• Decided: January 15, 1879
• Docket: No. 6959
• Status: Published

Opinion

Ada Wardell died testate, leaving her surviving a husband, two children by a former husband, and the petitioner, Cornelia McCausland, her illegitimate child. The will bequeaths and devises all the property to her husband and the two children by the former husband; no reference is made in the will to the petitioner, Cornelia McCausland.

The question for consideration is, whether the illegitimate child takes a share in the estate.

Sec. 1307, provides that when any testator omits to provide in his will for any of his children, unless it appears that such omission was intentional, such child must have the same share in the estate as if the deceased had died intestate.

It is argued, for the devisees, that the words “ children ” and “ child ” in this section are to be construed so as to include those only who were known to the common law as being within the meaning of the words; and as at common law an illegitimate child did not inherit from either parent, and was the child of nobody, such child is not within the section referred to.

It is not necessary to go to the common law for a rule by which to construe this section. Sec. 1387 of the same Code, provides that “every illegitimate child * * is an heir of his mother, and inherits "her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock.”

If the petitioner had been born in lawful wedlock, she would have taken, under Sec. 1307, the same share that she would have taken if her mother had died intestate; and under Sec. 1387 she takes the same, being illegitimate. She is to take “ in the same manner; ” that is, as if she had been born in lawful wedlock.

Let a decree be drawn.