McKee, J.:
Ada Wardell, a resident of the City and County of San Francisco, died February 25th, 1876, leaving, surviving her, her husband, two sons, and a daughter. Before her death, she had made her last will and testament, whereby she disposed of all her real and personal estate to her husband for life, and the remainder to her two sons. No provision was made in the will for the daughter. Her name was not mentioned in it, and it does not appear by anything in the will itself that the omission was intentional. The daughter was born out of lawful wedlock; she had never been legitimated by the subsequent intermarriage of her parents, or by acknowledgment or adoption of her father. Having been omitted from the will, she resisted the disposition of the property made by it, claiming that, as pretermitted heir of her mother, she was entitled to a distributive share in the estate. The Probate Court recognized the validity of the claim, and in the final distribution of the estate adjudged her to be entitled to the same distributive share in the estate of her deceased mother as though the mother had died intestate.
The sons appealed from this decision, and claim that the daughter of their deceased mother, being an illegitimate child, is not entitled to succeed by testamentary succession to any portion of her estate.
But by § 1307 of the Civil Code it is provided, that " when any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such [490]*490child, must have the same share in the estate of the testator as if he had died intestate.” In other words, the child succeeds to the same portion of the testator’s real and personal property that he would have succeeded to if the testator had died intestate. (§ 1306, Civ. Code.) He takes by succession, like one born after the making of the will.
It is contended, however, that the word “ children,” as used in this section, includes only legitimate children, because it is a rule of construction that whenever legislatures use a term without defining it, which is well known in the English law, they must be supposed to use it in the sense in which it is understood in the English law; and as the Legislature has made no attempt to define, limit, or qualify the term, or to change in the least its common-law signification, therefore, the term must mean only those born .in lawful wedlock.
It is well settled that at common law the word “ children ” means those born in lawful wedlock; and such, indeed, has been its legal meaning in every known system of law. Those only were considered as legitimate whose blood was traceable to the legal marriage of a common pair. A person not born in lawful wedlock was not regarded as a member of the group known in law as the family; and consequently was not entitled to the privileges of members of the family, or to any rights of inheritance or succession. Yet every person, whether born in lawful wedlock or not, was recognized as a member of the community, and his relations to the community, and to each member of it, and in respect of the things appertaining to it, were matters which were regulated by law. Indeed, the object of all law is to ascertain and settle the status of individuals in the social system, and to regulate the rights and duties of which each is the center.
In relation to children, the common law was a rule of succession to an estate. No one could succeed to an estate in land who was not born in lawful wedlock. Such continued to be the rigorous rule of that law until the reign of Edward III., when the principle of descent was changed in favor of bastards whose parents afterwards intermarried. This modification of the condition of such children under the common law was effected, as Blackstonc says, “ by the transcendant power of an act of Par[491]*491liament.” And by the same agency the status of persons who had no rights of inheritance or succession under the common law, has been, under modern law, greatly changed. So that now persons who, as bastards, had no rights of inheritance, are, under the law in most, if not all, of the States of the Union, capable of inheriting and transmitting inheritance. The legal meaning of the word “ children ” has, therefore, been greatly enlarged from what it was at common law.
If Courts were now to restrict the word to its common-law meaning, all children born of an unlawful marriage, all children by adoption or acknowledgment of their father, and all children whose parents intermarried subsequent to their birth, would be excluded from rights of inheritance or succession. But by statute law, the offspring of marriages null in law (§ 84, Civ. Code), children born out of lawful wedlock whose parents subsequently intermarried (§ 215, id.), and children by acknowledgment or adoption of their father (§§ 224, 227, 228, and 230, id.), are all legitimate. These, although incapacitated at common law from succeeding to any rights of their father, arc regarded for all purposes as legitimate from the time of their birth. Between them and the legitimate offspring of the same parents the law has established cognatic relations, and either is as capable as the other of exercising inheritable rights. Hence the term “ children,” as used in § 1307 of the law of succession, must relate to status, not to origin—to the capacity to inherit, not to the legality of the relations which may have existed between those of whom they may have been begotten. The word has, therefore, a statutory and not a common-law meaning; and its meaning includes all children upon whom has been conferred by law the capacity of inheritance.
And the State has regulated the .inheritable capacity of all children illegitimate by birth. Those who have not been legitimated by the will of their father, in any of the modes antliorized bylaw, have been rendered capable of inheriting from their mother. By § 1387 of the Civil Code, it is declared that “ every illegitimate child is, in all cases, 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.” Speaking of such a law passed by the State of Maryland, Mr. [492]*492Chief Justice Taney has said : “It seems to have been supposed by the Legislature, that, as there could have been no doubt of the relation which the mother hears towards her illegitimate children, the reasons of policy, which must always preclude such children from claiming the inheritance of any one upon the ground that he was their father, do not apply to the property of the mother. To this extent, therefore, the right to inherit is given by the statute; and it would appear to have been given upon the principle that it is unjust to punish the offspring for the crime of the parents.”
The respondent was, therefore, though illegitimate by birth, endowed by the statute with inheritable blood. She possessed the same heritable rights as heir of her mother as if born in lawful wedlock. (Rodgers v. Weller, 5 Biss. 166 ; Garland v. Harrison, 8 Leigh, 368 ; Bennett v. Toler, 15 Gratt. 588.) As an heir of her mother, she differed nothing in law from the other children, so far as the rights of inheritance which had been conferred upon her by law. To the full extent of those rights she was entitled to all the privileges and immunities of heirship. If her mother had died intestate, her right to a distributive share of the estate would have been unquestionable.
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McKee, J.:
Ada Wardell, a resident of the City and County of San Francisco, died February 25th, 1876, leaving, surviving her, her husband, two sons, and a daughter. Before her death, she had made her last will and testament, whereby she disposed of all her real and personal estate to her husband for life, and the remainder to her two sons. No provision was made in the will for the daughter. Her name was not mentioned in it, and it does not appear by anything in the will itself that the omission was intentional. The daughter was born out of lawful wedlock; she had never been legitimated by the subsequent intermarriage of her parents, or by acknowledgment or adoption of her father. Having been omitted from the will, she resisted the disposition of the property made by it, claiming that, as pretermitted heir of her mother, she was entitled to a distributive share in the estate. The Probate Court recognized the validity of the claim, and in the final distribution of the estate adjudged her to be entitled to the same distributive share in the estate of her deceased mother as though the mother had died intestate.
The sons appealed from this decision, and claim that the daughter of their deceased mother, being an illegitimate child, is not entitled to succeed by testamentary succession to any portion of her estate.
But by § 1307 of the Civil Code it is provided, that " when any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such [490]*490child, must have the same share in the estate of the testator as if he had died intestate.” In other words, the child succeeds to the same portion of the testator’s real and personal property that he would have succeeded to if the testator had died intestate. (§ 1306, Civ. Code.) He takes by succession, like one born after the making of the will.
It is contended, however, that the word “ children,” as used in this section, includes only legitimate children, because it is a rule of construction that whenever legislatures use a term without defining it, which is well known in the English law, they must be supposed to use it in the sense in which it is understood in the English law; and as the Legislature has made no attempt to define, limit, or qualify the term, or to change in the least its common-law signification, therefore, the term must mean only those born .in lawful wedlock.
It is well settled that at common law the word “ children ” means those born in lawful wedlock; and such, indeed, has been its legal meaning in every known system of law. Those only were considered as legitimate whose blood was traceable to the legal marriage of a common pair. A person not born in lawful wedlock was not regarded as a member of the group known in law as the family; and consequently was not entitled to the privileges of members of the family, or to any rights of inheritance or succession. Yet every person, whether born in lawful wedlock or not, was recognized as a member of the community, and his relations to the community, and to each member of it, and in respect of the things appertaining to it, were matters which were regulated by law. Indeed, the object of all law is to ascertain and settle the status of individuals in the social system, and to regulate the rights and duties of which each is the center.
In relation to children, the common law was a rule of succession to an estate. No one could succeed to an estate in land who was not born in lawful wedlock. Such continued to be the rigorous rule of that law until the reign of Edward III., when the principle of descent was changed in favor of bastards whose parents afterwards intermarried. This modification of the condition of such children under the common law was effected, as Blackstonc says, “ by the transcendant power of an act of Par[491]*491liament.” And by the same agency the status of persons who had no rights of inheritance or succession under the common law, has been, under modern law, greatly changed. So that now persons who, as bastards, had no rights of inheritance, are, under the law in most, if not all, of the States of the Union, capable of inheriting and transmitting inheritance. The legal meaning of the word “ children ” has, therefore, been greatly enlarged from what it was at common law.
If Courts were now to restrict the word to its common-law meaning, all children born of an unlawful marriage, all children by adoption or acknowledgment of their father, and all children whose parents intermarried subsequent to their birth, would be excluded from rights of inheritance or succession. But by statute law, the offspring of marriages null in law (§ 84, Civ. Code), children born out of lawful wedlock whose parents subsequently intermarried (§ 215, id.), and children by acknowledgment or adoption of their father (§§ 224, 227, 228, and 230, id.), are all legitimate. These, although incapacitated at common law from succeeding to any rights of their father, arc regarded for all purposes as legitimate from the time of their birth. Between them and the legitimate offspring of the same parents the law has established cognatic relations, and either is as capable as the other of exercising inheritable rights. Hence the term “ children,” as used in § 1307 of the law of succession, must relate to status, not to origin—to the capacity to inherit, not to the legality of the relations which may have existed between those of whom they may have been begotten. The word has, therefore, a statutory and not a common-law meaning; and its meaning includes all children upon whom has been conferred by law the capacity of inheritance.
And the State has regulated the .inheritable capacity of all children illegitimate by birth. Those who have not been legitimated by the will of their father, in any of the modes antliorized bylaw, have been rendered capable of inheriting from their mother. By § 1387 of the Civil Code, it is declared that “ every illegitimate child is, in all cases, 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.” Speaking of such a law passed by the State of Maryland, Mr. [492]*492Chief Justice Taney has said : “It seems to have been supposed by the Legislature, that, as there could have been no doubt of the relation which the mother hears towards her illegitimate children, the reasons of policy, which must always preclude such children from claiming the inheritance of any one upon the ground that he was their father, do not apply to the property of the mother. To this extent, therefore, the right to inherit is given by the statute; and it would appear to have been given upon the principle that it is unjust to punish the offspring for the crime of the parents.”
The respondent was, therefore, though illegitimate by birth, endowed by the statute with inheritable blood. She possessed the same heritable rights as heir of her mother as if born in lawful wedlock. (Rodgers v. Weller, 5 Biss. 166 ; Garland v. Harrison, 8 Leigh, 368 ; Bennett v. Toler, 15 Gratt. 588.) As an heir of her mother, she differed nothing in law from the other children, so far as the rights of inheritance which had been conferred upon her by law. To the full extent of those rights she was entitled to all the privileges and immunities of heirship. If her mother had died intestate, her right to a distributive share of the estate would have been unquestionable. Dying testate, the legal relation between mother and daughter was not impaired or destroyed. The latter was still a legitimate heir, as much so as the children legitimate by birth, for the law made her an heir to the same extent “ as if she had been born in lawful wedlock.”
It is not to he supposed that the law which attached to her person the rights and duties of inheritance, and endowed her with the capacity to exercise them, meant to leave her a bastard, under the disabilities of the common law, if the mother unintentionally omitted to make provision for her in her will. When placed by law in the state and condition of heir, and invested with the character and capacity of heir, all the rights, privileges, and legal consequences incident to that relation were tacitly conferred upon her. (Swanson v. Swanson, 2 Swan, 446.) And in the presence of the will of her mother in which her name was omitted, she stood clothed in law with the same rights to inherit as any one of the legitimate children would have stood had he been omitted. The omission did not affect [493]*493her legal rights, unless it was expressed on the face of the will to have been intentional. But no such intention appears in the will; the omission was therefore unintentional. (Estate of Garraud, 35 Cal. 336; Estate of Utz, 43 id. 200; Bush v. Lindsey,44 id. 121.) And, as pretermitted heir of her mother, .the respondent was entitled to a distributive share of the estate.
Judgment affirmed.
Ross, J., and McKinstry, J., concurred.