partition shall not be made except at such times as in this section herein before provided. [C. L. § 4117*; '96, p. 215*.

Cal. C. Civ. P. ? 1468*.

2831. Id. Value deducted from share of survivor. The value of such part of the homestead and exempt personal property as may be set aside to the surviving wife or husband or minor children shall be deducted from the distributive share provided for such survivors.

2832. Dower and curtesy. There shall be neither dower nor curtesy in this state.

Cal. Civ. C. 1387*.

2833. Illegitimate children to inherit, when. Every illegitimate child is an heir of the person who acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or 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. The issue of all marriages null in law, or dissolved by divorce, are legitimate. [C. L. § 2742.

Legitimation by acknowledgment, 10. Effect of failure to provide for child, 2760-2763. Inheritance of polygamous children, ?? 2848-2850.

Act Utah, 1852, 25, permitting illegitimate children to inherit from the father was valid under the organic act, and was not abrogated by act of congress, July 1, 1862, annulling all acts passed by

the legislature of Utah "which establish, support, maintain, shield, or countenance polygamy." Cope v. Cope, 137 U. S. 682, reversing same case, 7 U. 63; 24 P. 677. See also Chapman v. Handley, 7 U. 49; 24 P. 673, and In re Pratt estate, 7 U. 278; 26 P. 567.

2834. Inheritance from illegitimate child. If an illegitimate child dies intestate, without lawful issue, his estate goes to his mother, or, in case of her decease, to her heirs at law. [C. L. § 2743.

Cal. Civ. C. 1388".

2835. Degrees of kindred, how computed. The degree of kindred is established by the number of generations, and each generation is called a degree. [C. L. § 2744.

Cal. Civ. C. 1389.

2836. Id. Lineal and collateral. The series of degrees forms the line; the series of degrees between persons who descend from one another is called direct or lineal consanguinity, and the series of degrees between persons who do not descend from one another, but spring from a common ancestor, is called the collateral line or collateral consanguinity. [C. L. § 2745.

Cal. Civ. C. 1390.

2837. Id. Ascending and descending. The direct line is divided into a direct line descending and a direct line ascending. The first is that which connects the ancestor with those who descend from him. that which connects a person with those from whom he descends.

Cal. Civ. C. 1391.

The second is [C. L. § 2746.

2838. Degrees in direct line. In the direct line there are as many degrees as there are generations. Thus the son is, with regard to the father, in the first degree; the grandson, in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons. [C. L. § 2747.

Cal. Civ. C. 1392.

2839. Id. Degrees in collateral line. In the collateral line the degrees are counted by generations, from one of the relations up to the common ancestor and from the common ancestor to the other relations. In such computation the decedent is excluded, and the relative included, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree; cousins-german in the fourth, and so on. [C. L. § 2748.

Cal. Civ. C. 1393.

2840. Kindred of the half-blood inherit equally. Kindred of the half-blood inherit equally with those of the whole-blood in the same degree, unless

the inheritance comes to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor must be excluded from such inheritance.

Cal. Civ. C. 1394.

Children of decedent's father by another mother cannot inherit from decedent's property which

[C. L. § 2749.

descended to him from his mother and a half sister on his mother's side. Amy v. Amy, 12 U. 278; 42 P. 1121.

2841. Advancements deducted from share. Any estate, real or personal, given by the decedent in his lifetime as an advancement to any child, or other lineal descendant, is a part of the estate of the decedent for the purposes of division and distribution thereof among his issue, and must be taken by such child or other lineal descendant toward his share of the estate of the decedent. [C. L. § 2750.

Cal. Civ. C. 1395.

Advancements, 2763, 2801, 3955.

2842. Excess not refunded. If the amount of such advancement exceeds the share of the heir receiving the same, he must be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of such advancement; and, if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. [C. L. § 2751.

Cal. Civ. C. 1396.

2843. Advancements defined. All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such by the child or other successor or heir. [C. L. § 2752.

Cal. Civ. C. 1397.

2844. Value of advancements, how determined. If the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the decedent, or in the acknowledgment of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise, it must be estimated according to its value when given, as nearly as the same can be ascertained. [C. L. § 2753.

Cal. Civ. C. 1398.

2845. Advancements charged to issue of heirs. If any child, or other lineal descendant receiving an advancement, dies before the decedent, leaving issue, the advancement must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiving the advancement, in like manner as if the advancement had been made directly to them. [C. L. § 2754.

Cal. Civ. C. 1399.

2846. Inheritance by representation. Posthumous children. Inheritance or succession by right of representation" takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living. Posthumous children are considered as living at the death of their parents. [C. L. § 2757.

Cal. Civ. C. 1403.

Succession of posthumous child, ?? 2760, 27×9.

2847. Aliens may take. Aliens may take in all cases by succession as well as citizens; and no person capable of succeeding under the provisions of this title is precluded from such succession by reason of the alienage of any relative. [C. L. § 2758*.

Cal. Civ. C. 1404*.

Foreign wills, ?? 2744, 2822, 3806.

2848. Inheritance by issue of polygamous marriages. Section twenty-eight hundred and thirty-three included when first enacted and effectually operated at all times thereafter and now operates to include the issue of bigamous and polygamous marriages, and entitles all such issue to inherit, as in said section provided, except such as are not included in the proviso of section eleven of the

act of congress called the "Edmunds-Tucker act," entitled "An act to amend an act entitled, 'An act to amend section fifty-three hundred and fifty-two' of the Revised Statutes of the United States, in reference to bigamy and for other purposes." ['96, pp. 128-9.

2849. Id. Cases heretofore determined. New trial. In all cases involving the rights of such issue to so inherit, heretofore determined adversely to such issue in any of the courts of the territory of Utah, a motion for a new trial or rehearing shall be entertained, on application of such issue who was or were parties, at any time before the tenth day of March, eighteen hundred and ninety-seven; and the case or cases in which said motion is so directed to be heard shall be deemed transferred to the court of the state of Utah corresponding to that of the territory of Utah, in which such adverse decision was made, and the courts shall thereupon proceed to hear and determine said motion, and if granted, to proceed to hear and determine the case or cases without prejudice from the lapse of time since the former hearing or any prior determination of a like motion; provided, that this section shall not be construed to affect the rights of bona fide purchasers from any such parties before the approval of this title. ['96, p. 129.

In enacting this section the legislature assumed a control over the judiciary not warranted by the constitution, and such a statute, destroying vested

rights and the finality of judicial determination, is unconstitutional and void. In re Handley, - U. -; 49 P. 829.

2850. Polygamous issue born on or prior to January 4, 1896, legitimated. The issue of bigamous and polygamous marriages, heretofore contracted between members of the Church of Jesus Christ of Latter-day Saints, born on or prior to the fourth day of January, A. D., eighteen hundred and ninetysix, are hereby legitimated; and such issue are entitled to inherit from both parents, and to have and enjoy all rights and privileges to the same extent and in the same manner as though born in lawful wedlock. ['96, pp. 271-2.

Legitimation by acknowledgment, ?? 10, 2833. Succession of illegitimate child, ?? 10, 2833.

TITLE 73.

CODE OF CIVIL PROCEDURE.

CHAPTER 1.

PRELIMINARY PROVISIONS.

2851. Name of title. This title shall be known as the Code of Civil Procedure.

2852. But one form of civil action. There is in this state but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs. [C. L. § 3126.

Cal. C. Civ. P. 307.

Law and equity may be administered in the same action, Con. art. 8. sec 19. When there is a variance between rules, the rules of equity shall prevail, 2 2489.

The code applies to and governs all pleadings, modes, and forms at law and in equity. Houtz v. Gisborn, 1 U. 173. While all the forms of action

have been abolished by the code, the inherent distinction between legal and equitable causes of action, and the remedies appropriate to each, are not changed. Zeile v. Moritz, 1 U. 253. Kahn v. Old Telegraph M. Co., 2 U. 174. Hamner v. Ballantyne, 13 U. 325; 44 P. 704. Johnston v. Meaghr, U.; 47 P. 861.

2853. Parties, how designated. In such action the party complaining is known as the plaintiff, and the adverse party as the defendant.

Cal. C. Civ. P. 2 398.

Title not changed in consequence of an appeal, ? 3303.

[C. L. § 3127.

2854. Special issues may be tried by jury. In a case where neither party can, as of right, require a trial by jury of an issue of fact arising upon the pleadings, or where a question of fact, not in issue upon the pleadings, is to be tried, an order for the trial thereof by a jury may be made, stating distinctly and plainly the question of fact to be tried. Such an order is the only authority necessary for the trial. [C. L. § 3128.

Cal. C. Civ. P. 2 309*.

What issues to be tried by jury, 23128.

In such a case the verdict is advisory merely.

Smith v. Richardson, 2 U. 424. See Goldthwait v.
Lynch, 9 U. 185; 33 P. 699.

CHAPTER 2.

LIMITATIONS-IN GENERAL.

2855. Actions to be commenced within periods prescribed. Civil actions can be commenced only within the periods prescribed in the three succeeding chapters, after the cause of action shall have accrued, except where in special cases a different limitation is prescribed by statute. [C. L. § 3129.

Cal. C. Civ. P. 2312.

Limitations not affected by the general repeal, 324×4. Limitations, how pleaded, 2 2992.

The defense of the statute of limitations is a personal privilege which may be waived by the debtor. The statute does not operate as a payment or extinguishment of the debt, but as a bar. Leavitt v.

Oxford S. M. Co., 3 U. 265; 1 P. 356. The statute of Jimitations should be enforced not only on the presumption that the debt has been paid but because it is essentially a statute of repose; it should be viewed as a wise and beneficial law rather than as a discreditable defense. Kuhn v. Mount, 13 U. 105; 44 P. 1936.