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REPORTS
OF
DECISIONS IN PROBATE
BY
JAMES V. COFFEY,
JUDGE OF THE SUPERIOR COURT,
IN AND FOR THE
CITY AND COUNTY OF SAN FRANCISCO, STATE OF
CALIFORNIA.
REPORTED AND ANNOTATED BY
PETER V. ROSS and JEREMIAH V. COFFEY,
Of the San Francisco Bar.
VOLUME FOUR.
SAN FKANCISCO:
BANCROFT- WHITNEY COMPANY,
Law Publishers and Laav Booksellers.
1909.
5
Copyright, 1909.
BY
JEEEMIAH VINCENT COFFEY.
San Francisco:
The Filmeb Brothers Electrotype Company,
Typographers and Stereotypers.
TABLE OF CASES.
» »
Page
Bergin, Estate of 471
Bernede, E&tate of 486
Blythe, Estate of 67
Blythe, Estate of (Case of Alice Edith Blythe) 162
Blythe, Estate of (Case of "Williams Heirs") 302
Blythe, Estate of ("The Liverpool Blythes" or "The Blythe Com-
pany Case") 317
Blythe, Estate of (The "Scotch Blythes" or the "Gipsy Claim") ... 319
Blythe, Estate of (Blythe v. Ayres) ^ 445
N Cochrane v. McDonald 533
Crockett, Estate of 328
Dager, Estate of 22
De Bernede, Estate of 486
De Laveaga, Estate of 386, 423
Douglass, Estate of 345
Fallon, Estate of 450
Poster, Estate of 33
Grhirardelli, Estate of 1
Godsil, Estate of 514
Grand Lodge A, O. U. W. v. Miller 321
Hall, Estate of 447
Hanley v. Hanley 473
Heydenf eldt. Estate of 510
Johnson, Estate of 455, 499
King, Estate of 10
Langdon, Estate of 357
Martin, Estate of 451
McDonald, Cochrane v 533
McTiernan, Estate of 472
Miller, Grand Lodge A. O. TJ. W. v 321
O'Gorman, Estate of 354
Painter v. Painter .' 339
Peacock, Estate of 321
Eichet, Estate of 33 4
Schade, Estate of 440
(iii),
670^00
TABLE OF CASES CITED.
Page
Allgier, In re, 65 Cal. 228 500
Anderson v. Potter, 5 Cal. 64 332
Apple, Estate of, 66 Cal. 435 471
Armstrong v. McClure, 4 Heisk. (Tenn.) 80 506, 507
Aucker v. McCoy, 56 Cal. 527 47^
Babcock v. Gibbs, 52 Cal. 630 474
\ Bailey v. Boyd, 59 Ind. 292 401
Bailey V. Cox, 102 Cal. 333 543, 545
Bailey v. Inglee, 2 Paige, 279 541
Bailey v. Paterson, 3 Rich. 158 30
Baker v. O'Riordan, 65 Cal. 368 479
Baldwin v. Parker, 99 Mass. 79 452
Ball V. First Nat. Bank, 80 Ky. 501 504
Ballcntine v. Wood, 5 Am. Prob. Eep. 244 30
Baltimore v. Gill, 31 Md. 375 512
Barnes v. Hudson, 60 Barb. 598 489, 491, 492
Bassett v. Granger, 100 Mass. 348 29
Bates V. Bates, 27 Iowa, 110 516
Bauer, Matter of, 79 Cal. 309 40
Bauquier, Estate of, 88 Cal. 308 19
Bedell, Estate of, 3 Cof . Pro. Dec. 78, affirmed 97 Cal. 339 21
Bellows V. McGinnis, 17 Ind. 64 503
Benham v. Rowe, 2 Cal. 387 452
Berg V. Radcliff, 6 Johns. Ch. 310 512
Bergin v. Haight, 99 Cal. 52 479
Bibend v. Kreutz, 20 Cal. 114 478
Blackburn v. Crawford, 3 Wall. 175 435
Blanchard v. Chapman, 22 111. App. 341 337
Bliven v. Seymore, 88 N. Y. 469 336
Blythe v. Ayres, 96 Cal. 578 428
Bohon V. Barrett, 79 Ky. 378 335, 336
Boyd V. Robinson, 93 Tenn. 1 31
Boylan v. Meeker, 28 N. J. L. 274 516
Bradley v. Andrews, 137 Mass. 59 512
Braithwaite, In re, 19 Abb. N. C. 113 471
Brown, In re, 80 Cal. 384 19
Bull V. Bull, 8 Conn. 47 337
Burns, Estate of, 54 Cal. 223 480, 482, 483
Burns, Estate of, Myr. Prob. Rep. 155 480
(V)
yl Table of Cases Cited.
Page
Burt V. Herron, 66 Pa. 402 385
Butler, Estate of, 1 Dem. (N. Y.) 9 332
California Beet Sugar Co. ▼. Porter, 68 Cal. 372 479
Canada's Appeal, 47 Oonn. 450 516
CarmicLael v. State, 12 Ohio St. 560 296
Carpentier v. Hart, 5 Cal. 407 477
Casey, Ex parte, 71 Cal. 269 473
Casey v. Enloes, 1 Gill (Md.), 503 507
Champion v. Brown, 6 Johns. Ch. 398 506
Chase v. Joiner, 88 Tenn. 761 507
Chester v. Miller, 13 Cal. 559 479
Chicago Bldg. Assn. v. Haas, 111 HI. 176 479
City Carpet Works v. Jones, 102 Cal. 510 355, 356
Clark V. Brown, 83 Cal. 181 544
Clark V. Shelton, 16 Ark. 474 473
Clarke v. Leupp, 88 N. Y. 228 338
Clason V. Corley, 5 Sandf. (N. Y.) 447 507
Clay V. Wood, 153 N. Y. 134 338
Colvin V. Worford, 20 Md. 357 516
Commonwealth v. Blood, 97 Mass. 538 158
Cowell V. Washburn, 22 Cal. 520 509
Croghan, Estate of, 92 Cal. 370 444
Cudworth, Estate of, 133 Cal. 469 40
Curtis V. Lukin, 5 Beav. 155 448
Davis V. Calvert, 5 Gill & J. 569 516
Davis, Estate of, 106 Cal. 453 333
Dean v. Superior Court, 63 Cal. 474 478
Delafield v. Parish, 25 N. Y. 9 452
De Laurencel v. De Boom, 67 Cal. 362 493, 495
Demmert v. Osborn, 65 Hun, 585 471
Despard v. Churchill, 53 N. Y. 200 471
Dimmick v. Dimmick, 95 Cal. 323 442
Dorn V. Howe, 52 Cal. 630 474
Duff V. Duff, 71 Cal. 513 18
Duffield V. Duffield, 1 Dowl. & C. 311 449
Dunlap V. Cody, 31 Iowa, 260 479
Dunlap V. Steere, 92 Cal. 344 479
Dunninger v. Moschine, 93 Iowa, 495 479
Eberhardt v. Perolin, 48 N. J. Eq. 592 336
Eggers, Matter of, 114 Cal. 465 332, 333
Eldridge v. Eldridge, 9 Cush. 516 448
England v. Slade, 4 Term. Eep. 682 507
Eno V. Tatum, 4 Giff. 181, 3 De Gex. J. & S. 443 512
Evans v. Spurgin, 6 Gratt. (Va.) 107 503
Table of Cases Cited. vii
Pago
Fealey v. Fealey, 104 Cal. 354 48 1
Fissel's Appeal, 27 Pa. 55 29
Foster v. Waterman, 124 Mass. 592 157
Freeman v. Coit, 96 N. Y. 63 338
Frey, Estate of, 52 Cal. 660 345
Fullenweider v. Watson, 113 Incl. 18 338
Furness v. Fox, 1 Cush. 134 448
Gaines, Succession of, 46 La. Ann. 252 471
Galpin v. Page, 18 Wall. 350 158
Gates V. Smith, 4 Edw. Ch. 702 507
George v. St. Louis etc. Ey. Co., 44 Fed. 117 509
Gibson v. Cook, 62 Ind. 261 473
"^ Gregg V. Bostwich, 33 Cal. 220 474
GruweU v. Seybolt, 82 Cal. 9 475, 480, 481
Hardy t. Herriott, 11 Wash. 460 508
Hardy v. Merrill, 56 N. H. 227 452
Harris v. Reynolds, 13 Cal. 514 508
Harrison v. Harrison, 2 Gratt. 1 335
Harvey v. Ball, 32 Ind. 98 157
Harvey v. Richards, 1 Mason, 381 471
Haskell, Estate of, Myr. Rep. 204 331
Hayden v. Hayden, 46 Cal. 332 479
Hess V. Singler, 114 Mass. 56 338
Hollister v. Cordero, 76 Cal. 649 325, 326
Howell V. Budd, 91 Cal. 349 17
Howland Will Case, 4 Am. Law Rev. 625 460
Hudson, Estate of, 63 Cal. 456 479, 500
Hughes T. Clark, 16 Ky. Law Rep. 41 31
Hughes, In re, 95 N. Y. 55 471
Hunter v. Hatton, 4 GUI (Md.), 115." 503
Irish V. Smith, 8 Serg. & R. 573 516
Jackson v. Ramsey, 3 Cow, 75 503
Jennings v. Le Breton, 80 Cal. 9 18
Jessup, Estate of, 81 Cal. 409, 458
. . . .139, 140, 147, 148, 156, 159, 401, 405, 410, 422, 429, 434, 438, 439
Jewell V. Jewell, 28 Cal. 232 493, 494
Johnson v. Brasington, 68 N. Y. St. Rep. 44 31
Jordan v. Fay, 98 Cal. 264 442
Keane, Estate of, 56 Cal. 409 18
Kearney v. Kearney, 72 Cal. 592 480, 482, 484
Kelley v. Vigas, 5 Am. Prob. Rep. 315 31
Kennedy v. Doyle, 10 Allen, 161 434
VIU
Table of Cases ^ited.
Page
Kidder, Estate of, 57 Cal. 282 159
Kimball v. Crocker, 53 Me. 263 449
Kirtlan, Estate of, 16 Cal. 161 21
Knight V. Knight, 3 Beav. 172 335
Knowlton v. Mackenzie, 110 Cal. 190 353
Knox V. Knox, 59 Wis. 172 333
Kolbe V. People, 85 111. 336 157
Landers v. Brant, 10 How. 348 503
Lannay v. Wilson, 30 Md. 536 507
Lapham v. Campbell, 62 Cal. 196 479
Lataillade v. Orena, 91 Cal. 576 479
Lathrop v. Smith, 35 Barb. 64, affirmed 24 N. Y. 420 332
Lemacks v. Glover, 1 Eich. Eq. 141 30
Letchworth's Appeal, 30 Pa. 178 449
Lewis, In re, 39 Cal. 306 502
Lindsay v. Pleasants, 4 Ired. Eq. 320 487
Lines v. Darden, 5 Fla. 51 336
London etc. Bank v. Smith, 101 Cal. 415 541
Lott V. Thompson, 36 S. C. 38 29
Luco V. Commercial Bank, 70 Cal. 339 18
Lux's Estate, 100 Cal. 601 348
Maloney v. Hef er, 75 Cal. 422 47.">
Mann v. Rogers, 35 Cal. 319 '. 475
Marti, Estate of, 132 Cal. 666 337
Massey, Succession of, 46 La. Ann. 126 504
Maul V. Hellman, 39 Neb. 322 504
Maxwell, In re, 74 Cal. 384 480
Maxwell v. Maxwell, L. E. 4 H. L. 506 511
May V. Wood, 3 Bro. C. C. 471 448
McGinn, Estate of, 3 Cof. Pro. Dec. 26 452
McKenzie v. Barling, 101 Cal. 459 537, 538, 539, 542
McSherry v. Pennsylvania etc. Min. Co., 97 Cal. 637 538
McTaggart t. Thompson, 14 Pa. 149 516
Meehan v. Brennan, 16 App. Div. 395 336
Mellish V. Vallins, 2 Johns. Ch. 194 512
Minor, Ex parte, 11 Ves. 559 504, 505
Minter's Appeal, 40 Pa. Ill 491
Montgomery v. Montgomery, 3 Barb. Ch. 132 434
Moore, Estate of, 68 Cal. 281 21
Moore, Estate of, 96 Cal. 523 480, 482, 501, 506
Moore v. Moore, 1 De Gex, J. & S. 603 512
Morgan y. Lones, 78 Cal. 58 442
Morrison v. Bowman, 29 Cal. 346 345
Moss V. Sandefur, 15 Ark. 381 473
Mower v. Orr, 7 Hare, 473 491
N
Table op Cases Cited. ix
Pago
Murphy v. Carlin, 113 Mo. 112 336
Murphy v. Smith, 86 Mo. 333 479
Neals V. Dicks, 72 Ind. 376 477
Niles, Matter of, 113 N. Y. 547 501
Norman v. Crognard, 17 N. J. Eq. 428 471
Norris v. Hensley, 27 Cal. 439, 444 448, 449, 494
Nutter V. Viekery, 64 Me. 490 489, 490, 492
O'NeU V. O'Neil, 54 Cal. 187 537, 54
y
Page T. Rogers, 31 Cal. 301 508
Paine v. Prentiss, 5 Met. 399 490
Painter v. Painter, 68 Cal. 395 344
Parsons v. Lyman, 20 N. Y. 121 471
Payne v. Payne, 18 Cal. 301 345
People V. Dobbins, 73 Cal. 257 444
Perry v. Maxwell, 2 Dev. Eq. 488 512
Pfuelb, Estate of, 48 Cal. 643 32, 487, 492
Phebe v. Quinllin, 21 Ark. 490 336
Phelan v. Smith, 100 Cal. 169 347, 480, 483
Phillips V. Phillips, 112 N. Y. 197 336
Pieper v. Centinelo Land Co., 56 Cal. 173 537, 541, 542, 545
Pina V. Peek, 31 Cal. 359 159
Pratt V. Trustees, etc., 88 Md. 610 336
Prescott V. Prescott, 45 Cal. 58 474
Eall V. First Nat. Bank, 80 Ky. 501 507
Ramsey v. Joyce, MeMull. Eq. 252 30
Rathgeb v. Tiscornio, 66 Cal. 96 538, 545
Reigal v. Wood, 1 Johns. Ch. 402 476
Remington S. M. Co. y. Cole, 62 Cal. 311 539, 542, 545
Reynolds v. Lathrop, 7 Cal. 43 508
Rodhouse v. Mold, 35 L. J. Ch. 67 512
Ross V. Ross, 129 Mass. 245 158
Sanders v. Simcieh, 65 Cal. 50 325
Sandford v. Head, 5 Cal. 298 476
Sandf ord. Estate of, 4 Cal. 12 159
San Francisco Gas Co. t. Brickwedel, 62 Cal. 645 509
Saunders v. Vautier, Craig & P. 240, 4 Beav. 115 448
Sayward v. Houghton, 82 Cal. 628 539
Seton V. Slade, 7 Ves. 205 506
Sharon V. Sharon, 75 Cal. 49 165. 297
Sharon ▼. Sharon, 79 Cal. 633.699 165, 299
Sharon V. Sharon (Cal.), 16 Pac. 346-301 165
Sichler v. Look, 93 Cal. 608 353
Table of Cases C^ted.
Page
Simpson v. Castle, 52 Cal. 644 508
Skarrett, Estate of (Super. Ct.), S. F. Law Journal, Oct. 3d, 1892
'. 471,472
Sloss V. De Toro, 77 Cal. 129 535, 536, 537, 544
Smith V. Allen, 1 Blackf. (Ind.) 22 503
Smith V. Smith, 88 Cal. 572 538, 543, 544, 545
Smith V. Smith, 3 Giff. 263 512
Springle v. Shields, 17 Ala. 297 506
Stewart v. Powers, 9 Ohio C. C. 143 31
Stone V. Parker, 1 Drew. & S. 212 512
Taylor v. Cooper, 10 Leigh, 317 503
Terry v. Buffington, 11 Ga. 337 516
Thornhill v. Hall, 2 Clark & F. 36 338
Tiernan v. His Creditors, 62 Cal. 286 475
Tobelman v. Hildebrandt, 72 Cal. 316 479
Tolman v. Smith, 85 Cal. 280 442
Toomes, Estate of, 54 Cal. 509 517
Trimble v. Dzieduzyiki, 57 How. Pr. 213 471
Twigg V. Fifield, 13 Ves. 517 505
Usher v. Usher (Cal.), 36 Pac. 8 538
Wagner v. Cohen, 6 Gill (Md.), 97 503, 504
Warner v. Warner, 100 Cal. 11 538
Waterman v. Whitney, 11 N. Y. 157 516
Wene v. Robinson, 9 Cal. 112 479
Wharteuby, Estate of, 2 Cof . Pro. Dec. 509 509
White T. White, 82 Cal. 430 298, 300
Williams v. Robinson, 42 Vt. 658 452
Winter v. Winter, 5 Hare, 306 491
Wisden v. Wisden, 2 Small. & G. 396 492
Wolfe's Appeal (Pa.), 13 Atl. 760 157
Woodruff V. Taylor, 20 Vt. 65 484
Woodworth, Estate of, 31 Cal. 615 511
Wright V. Gilbert, 51 Md. 146 471
Wright V. Miller, 1 Sand. Ch. 120 476
Wright V. Philips, 56 Ala. 69 471
Yuba Co. V. Adams, 7 Cal. 35 509
CITATIONS.
CALIFORNIA.
CONSTITUTION.
Art. 6, see. 5.
STATUTES.
1850, p. 179.
1893, c. 168..
500
487
498
SECTION
4
22
23....
129.. ,
CODE OF CIVIL
PAGE
534
513
513
351
379 540, 545, 546
382 541
392. ..533, 534, 537, 542, 544, 547
395 535, 538, 539, 543, 545
427 355
430 356, 401
473.. 479
607 452
707 508
785 502
787 502
963 480, 482, 483
969 480, 483
1045 353
1301 20
1339 159
1349 20, 22
1350 15, 16, 17, 18, 19, 20, 22
1351 20
1365 17, 329, 330
1379 17
1411 329
1413 329, 330
1445 343, 346
1449 347
1459 473
PEOCEDUEE.
SECTION PAGE
1461 473
1465 442, 443, 444, 475
146S 35, 475
1474 475
1554 502, 504
1555 502
1569 509
1575 502
1576 502
1585 343, 344
1617 502
1658 448
1664 69, 71
1669 509
1682 502
1686 502
1713 19
1714 480, 483
1715 480, 483
1869
452
1908
480
1935
. 445
1940
445
1941
445
1962
301
1963
323
1981
2001
452, 453
292
2061
452, 453
(xi)
ill
Citations,
CIVIL
SECTION PAGE
4 159, 429, 488
13 494, 511
55. . .164, 292, 296, 297, 299, 300
56 ^ 297
57 165, 297
128 589
196 154
197 402, 439
200 433
221 409, 428
229 409
230. ..138, 139, 140, 146, 148, 155
158, 159, 394, 428, 429, 439
200 439
683 27, 28
685 28
686 28
779 495
1237 474
1265 443, 444
1307 1
1309 494
1310 487, 488
489, 492, 493, 494, 495, 497
CODE.
SECTION PAGK
1317 494
1322 338
1324 511
1327 26, 494
1332 * 27
1333 27
1334 26, 493, 494
1343 487, 493
1350 28, 31
1368 448
1373 330
1386 332, 493, 494, 495, 496
1387 138, 158, 162, 495
1390 494
1392 494
1395 493, 494
1399 493, 494
1401 494
1402 493, 495
1403 493,494,495
1500 513
1641 448
2909 512
POLITICAL CODE.
SECTION
3716
PAGE
. 509
SECTION
3717
PACK
. 509
COFFEY'S
PROBATE DECISIONS.
Estate of DOMINGO GHIRARDELLI, Deceased.
[No. 14,521; decided March 20, 1896.]
Pretermitted Child — Proof of Paternity. — It is incumbent upon a
person claiming to be the child and pretermitted heir of the testator
to establish her claim as such child to a reasonable and moral cer-
tainty — a certainty that convinces and directs the understanding and
satisfies the reason and judgment of those who are bound to act
conscientiously upon it. The question of paternity should be estab-
lished by strict and plenary proof.
On March 5, 1895, Dominga Barbagelata filed a petition for
partial distribution. On March 20, 1895, she filed an amended
petition; and on April 16, 1895, the executors filed their an-
swer thereto. The other facts are stated in the opinion.
Otto Turn Suden, for the petitioner.
A. Comte, Jr., for the executors.
Timothy J. Lyons, for Eugene Ghirardelli, one of the heirs.
COFFEY, J. Domingo Ghirardelli died on January 17,
1894, in Italy, leaving a will which was admitted to probate
in this court March 14, 1894, and the executors therein named,
Domingo Ghirardelli and Louis Ghirardelli, were appointed
and qualified and assumed the administration of the astate,
and are still as they have been continuously since so engaged.
Petitioner makes her application under section 1307, Civil
Code, which is as follows: "When any testator omits to pro-
vide in his will for any of his children, or for the issue of
any deceased child, unless it appears that such omission was
Prob. Dec, Vol. IV— 1 (1)
2 Coffey's Probate Decisions, Vol. 4.
intentional, such child, or the issue of such child, must have
the same share in the estate of the testator as if he had died
intestate, and succeeds thereto as provided in the preceding
section"; averring that she is a daughter of the deceased tes-
tator and of his deceased wife. Carmen Ghirardelli, having
been born Augui^ 4, 1845, in the city of Lima. Peru, but that
nevertheless the said testator omitted to provide for her in
and by his will, and that said omission was not intentional
but was accidental and an oversight on his part. This aver-
ment is answered by respondents, who deny that she is a
daughter of said deceased testator and his deceased wife
Cairmen, but is the daughter of said Carmen by a former hus-
band; and that the said deceased testator did not omit inten-
tionally or otherwise to provide for said Dominga Barbage-
lata in his will, and that she is not an heir of said deceased
Domingo, but that he did make a provision in his will, sub-
division sixth thereof, in terms as follows:
"I bequeath to Dominga or Domenica Martin, wife of
Francesco Barbagelata, domiciled in said San Francisco, Cali-
fornia, so much two thousand dollars corresponding to nearly
ten thousand Italian lire."
Respondents claim that the said Dominga or Domenica
Martin, wife of Francesco Barbagelata, is the applicant
Dominga Barbagelata, and that they are ready, upon proper
application, to carry out the terms of the quoted clause of
the will.
The will was written in the Italian language, and the
authenticated copy in translation of said testament, as ad-
mitted to probate, is as follows:
"The present testament is taken from the collection of
Testaments of the current year and inscribed in the collec-
tion of Acts between Living for the year 1894, at No. 5 of
the Bundle and No. 3232 of the relative Index.
"No. 1 of the Index.
"1894. 11th January.
"Public Testament.
"Reigning, Umberto First, by the grace of God and by
the will of the Nation King of Italy.
"The year one thousand eight hundred and ninety-four,,
the eleventh of the month of January, Thursday, at nine
Estate op Ghirardelli. 3
o'clock of the morningr, in Rapallo, in the bedroom of the
first floor fronting Montebello street, in a house the property
of the heirs of Bernardo Raffo, situated at No. 4 of said
street ;
"Before me, Agostino Pietro Norero, Notary, residing in
Rapallo, County of Chiavari, Province of Genoa, Kingdom
of Italy; inscribed at the Notarial Council of Chiavari and
in the presence of Messrs. Giovanni Croce of the late Inno-
cenzo, druggist, born in Genoa; Giuseppe Bozzo of Nicolo,
sea captain, born in Carnogli ; Giacomo Massone, of the late
Giacomo, living on his income, born in Buenos Ayres ; and
Nicolo Cuneo, of the late Ambrozio, merchant, born in
Rapallo, all residing and domiciled in this place, witnesses
duly qualified and personally known and requested by me;
"Personally constituted himself Mr. Domenico Ghirardelli
of the late Giuseppe, merchant, born in Rapallo, and dwelling
in this place since sometime ; domiciled and residing in San
Francisco, of California, personally known by me Notary
and by said witnesses;
"Who finding himself in the fullness of his intellectual
faculties, as it appeared to me Notary and witnesses that
from beginning to end are assisting to this act, although he
lies sick in bed, has of his own mouth and to the full under-
standing of all, in the presence of said witnesses, declared to
me Notary and he following his dispositions of last will that
by my care as Notary and in the said presence have been
reduced to writing as follows:
"First.
"I premise before all that I possess nothing in Italy and
that all my property, commercial and real estate, is in the
district called San Francisco of California (United States
of America).
"Second.
"I premise, also, that I am a widower and have only six
children, namely, Domenico, Giuseppe, Luigi, Eugenio, Elvira,
wife of Charles Sutton, and Angela, wife of Christian Jor-
gensen, all now domiciled in San Francisco of California.
4 Coffey's Probate Decisions, Vol. 4.
"Third.
"I declare also that in said San Francisco of California I
possess a considerable establishment for the manufacture of
chocolate, mustard and other kinds of business j and so is
declared :
"Fourth.
"I make my heirs for sixth and equal portion of all I
possess in said California, including said establishment with
all the utensils, tools, furnitures, machinery and other as it
result per last inventory made in said City of San Fran-
cisco, my said six children, Domenico, Giuseppe, Luigi,
Eugenio, Elvira, wife of Charles Sutton, and Angela, wife of
Christian Jorgensen.
"Fifth.
"I bequeath the usage and pursuit or continuation of said
establishment or industrial factory to three of my said chil-
dren, namely, Domenico, Giuseppe and Luigi Ghirardelli,
brothers, who in correspondence for said usage and pursuit
of said establishment shall disburse to each of the other heirs
number six thousand dollars money of the United States of
America, corresponding nearly to thirty thousand Italian lire,
namely, six thousand dollars to Eugenio Ghirardelli ; six
thousand dollars to Elvira Ghirardelli ; and six thousand dol-
lars to Angela Ghirardelli ; meaning that such correspondence
shall be understood only as a bonus or premium for said
usage and pursuit, without injuring said Eugenio, Elvira and
Angela Ghirardelli in their rights of property and for one-
sixth part to each of said establishment.
"Fifth.
"I bequeath to my nieces Angela and Luigia, sisters Grasso
daughters of the late Agnese Ghirardelli my sister and to
each of them and for once so much two hundred dollars cor-
responding nearly to one thousand Italian lire, declaring that
my said nieces are domiciled in Genoa.
"Sixth.
"I bequeath to Dominga or Domenica Martin, wife of
Francesco Barbagelata, domiciled in said San Francisco of
Estate op Ghirardelli. 5
California, and for once so much two thousand dollars cor-
responding to nearly ten thousand Italian lire.
"Seventh.
"I appoint my testamentary executors said Domenico,
Giuseppe and Luigi Ghirardelli, brothers, my children, and
Christian Jorgensen, my son-in-law, granting to them all the
powers allowed by the law, including that of incorporating,
if they think it convenient and necessary, said busines.s and
factory according the laws and usages of said San Francisco
of California.
"Eighth.
"Whenever any of my heirs should not accept or should
impugn this my testament, I bequeath to the same one dollar
money of California as his lawful share.
"Ninth.
"I revoke and annul whatever testament made prior to this.
"And I Notary requested have received this testament by
me Notary reduced in writing as by the testator has been
declared to me, and as testament I Notary have read it in a
loud and intelligible voice and explained the contents to the
testator, in the presence of said witnesses, who with him
have with me Notary signed previous declaration that said
Domenico Ghirardelli, in presence of said witnesses makes,
that said testament and all in it contained is in conformity
with his will.
"The present, written by a trusty person, occupy seven
pages of two standard papers.
"D. GHIRARDELLI,
"GIOVANNI CROCE,
"NICOLO CUNEO,
"GIUSEPPE BOZZO,
"GIACOMO MASSONE,
"AGOSTINO PIETRO NORERO,
"Notary Province of Genoa, County of Rapallo, Office of the
Civil State.
' * Taken from the registers of death certificates for the year
1894.
"No. 27, Part 1st.
"GHIRARDELLI DOMENICO.
6 Coffey's Probate Decisions, Vol. 4.
"The year one thousand eight hundred ninetj'-four on the
seventeenth day of January, at thirty minutes past nine
o'clock ante meridiem in the City Hall.
"Before me Massoni Andrea deputy Sj^ndic by act of Feb-
ruary twelve, on^ thousand eight hundred eighty-three, duly
approved official of the Civil State of the County of Rapallo,
appeared Raffo Nicolo of the late Bernard, aged fifty-six
years, proprietor, domiciled in this county, and Castagneto
Bartholomew, of the late Giacomo, aged fifty-six years, watch-
maker, domiciled in this county, who have declared to me
that at ... . minutes past one o'clock ante meridiem of to-
day, in the house situate in Montebello street at number four,
died Ghirardelli Domenico, aged seventy-seven years, well to
do, residing in this county, born in this county of the late
Giuseppe domiciled in life in this county and of the late
Ferretto Maddalena domiciled in this county widower of
Carmen Alvarado.
"To this act were present as witnesses, Boero Enrico, aged
twenty-five years, painter, and Canessa Paolo, aged twenty-
eight years, civil employee, both residing in this county.
"After reading the present to all they signed with me.
"NICOLO RAFFO,
"CASTAGNETO BARTOLOMEO,
"E. BOERO,
"CANESSA PAOLO, Witness,
"ANDREA MASSONI.
"For copy in conformity with the original.
"Rapallo, Jany 18th 1894.
"for the Syndic
"Official of the Civil State
" 'Signed' PEJRANO NICOLO.
"Registered in Rapallo the 19th Jany 1894, No. 534, Vol
56 Public Acts. Exacted six lire {I. 6).
"The Receiver.
"(Signed) G. BONINI.
"For copy in conformity to its original which single sheets
have the signature required by law, delivered in eleven pages,
Estate op Ghirardelli, 7
this included, at request of Mrs. Angela Ghirardelli, of the
late Domenico, wife of Christian Jorgensen.
"Rapallo, January 19th, 1894.
" (Seal) AGOSTINO PIETRO NORERO, Notary.
"(Rubric).
"Seen. The above affixed signature saying — Agostino
Pietro Norero Notary is authenticated.
"Stamp Chiavari the 20th January 1894.
"The President of the Tribunal.
"(Seal) P. ELI ANTONIO.
"(Rubric)."
The counsel for petitioner concedes that the evidence is
conflicting, but considers that it is not irreconcilable. The
question of paternity should be established by strict and
plenary proof.
The petitioner comes here claiming a share as heir at
law. To entitle her claim to the consideration and confi-
dence of the court she must have proved that she was the
illegitimate child of the deceased testator, Domingo Ghirar-
delli, and Carmen, legitimized by subsequent matrimony, and
pretermitted in his will.
There is no doubt, as petitioner admits, that Domingo
Ghirardelli and Carmen entered into the marriage relation
in Peru, and the preponderance of evidence is that the
mother of the applicant. Carmen Alvarado, was married to a
man named Martin, a physician, prior to meeting Ghirardelli,
and that she did not meet him until the child Dominga, the
applicant here, was seven or eight months old.
It was incumbent upon the petitioner to establish her claim
as child to a reasonable and moral certainty — a certainty that
convinces and directs the understanding and satisfies the
reason and judgment of those who are bound to act con-
scientiously upon it. This is declared judicially to be proof
beyond a reasonable doubt, such as the counsel for claimant,
Mr. Turn Suden, insisted, in another case, must exist in this
case.
Specious as is the same gentleman's argument in this case,
it is unsupported by the warp and woof of the evidence —
here and there a slender and brittle thread of testimony
8 Coffey's Probate Decisions, Vol. 4,
suggestive of the fondness of a father and of affectionate
treatment by him and of resentment at her ingratitude and
lack of filial regard for her mother, but absolutely no par-
ticle of proof of paternity. Her own testimony is enough to
show that she did not realize any such natural relation, and
even if her position made a draft upon sympathy, in view
of all the facts and circumstances, it is clear that she received
from him throughout life and in his testamentary provision
indulgent treatment. The evidence in this case shows that
Domingo Ghirardelli was a man of kind heart and honorable
impulse, and that when he espoused the mother of this peti-
tioner there was no stain upon the character of either, and
that he treated his wife and her child with respect and
affection.
Notwithstanding the terms of endearment used in his cor-
respondence with his stepchild and her husband — terms nat-
ural enough and not necessarily compromising between him
and one whom he had virtually but not legally adopted, and
whom he had treated with the tenderness of a parent — there
is nowhere any evidence arising to the dignity of proof that
he either was or acknowledged himself to be her actual
father. On the contrary, there is positive and unimpugnable
proof that such was not the case. One important item, out-
side of the wall, is of immense importance by way of illustra-
tion : Ghirardelli 's olographic memorandum of the births of
his children, giving the year, day, date and hour of birth,
even the very minute, but omitting Dominga, the petitioner.
Is it probable or possible that if she were his daughter he
would have omitted her, his eldest born? It is, to say the
least, intensely improbable. It is not to be accepted as a
basis upon which to rest a conclusion to the contrary. I have
suggested that she was virtually adopted by him when he
intermarried with her mother, and that this was her own
notion is shown by her letter in evidence dated Oakland, July
19, 1894, asking "for an adopted daughter's share" of the
estate. This very intelligent lady could not have written that
letter of imploration if she knew or believed she had the right
to an equal share under the law. If she were a legally
adopted daughter she had the same right as the common law-
ful offspring of Domingo and Carmen j if she were the
Estate of Ghirardelli. 9
ille^timate child she had, by subsequent matrimony, an equal
right; but she was neither, and she knew it. Aggrieved and
disappointed at the testamentary discrimination, in view of
the virtual adoption, she may have been ; but she had been
denied no legal right and had no legal claim, and her own
voluntary communication establishes her knowledge and be-
lief. The astuteness of the claim that she was named
Dominga after the deceased Domingo is suggestive of the
cleverness that is proverbial of her race ; but the fact is that
she was named, according to the custom of her country, after
the saint upon whose feast day she was born, St. Dominic,
August 4th — a common custom in Catholic countries.
Quantitatively and qualitatively, in number and quality,
the case of paternity is against the petitioner; her birth was
honorable, but her father was not Domingo Ghirardelli, actual
or adopted. But even if it were not so clearly shown by a
remarkable series of witnesses and an extraordinary exhi-
bition of evidence — a unanimity of a most remarkable and
respectable array of witnesses as to the declarations of the
deceased Domingo — the identity of the petitioner, Dominga
Barbagelata, with the person described in article or clause
sixth of the v;ill, hereinabove quoted: "Dominga or Domenica
Martin, wife of Francesco Barbagelata, domiciled in said
San Francisco," is incontestable, and makes unnecessary the
other issue, except, perhaps, for the vindication of the family
honor and the exoneration of the name of the mother of these
children, the virtuous mother of the petitioner and of the
others named as his children by her in the last will and
testament of Domingo Ghirardelli, senior.
The legacy in article sixth of that will must refer to peti-
tioner, and cannot possibly indicate any other person. There
is not and there never was anyone else who answered to that
particular and specific description; even if it were a misde-
scription, so long as the object be identifiable, it may not be
avoided, but it is not a misdescription; the identity of the
person in the mind of the testator is certain, clear, definite
and specific; it is impossible of misapprehension in the light
of the evidence in this case ; the applicant here, and she alone,
responds to the terms of this most explicit provision.
10 Coffey's Probate Decisions, Vol. 4,
Counsel for applicant argued orally that the cardinal rule
of constniction is that the will must show affirmatively that
testator had his child or children in mind; it must show on
the face of the will that he intended to omit provision for
the child. If thp^ testator thought she was not his child,
how could he have her in mind as his child ? If he mentally
doubted, disputed or denied his paternity as to her, then he
could not have formed an intention to disinherit, because
according to his belief she had not inheritable quality; as-
sume, says Mr. Tum Suden, that he knew her to be his child,
then it might be different; but that is not this case, counsel
insists, for his declaration that he had but six children ex-
cluded her. Counsel's argument is creditable to his fertile
fancy, but the cardinal canon of construction and the facts
against his contention and his client are too strong to be
successfvdly assailed. His claim is not only not affirmatively
established, it is overthrown by a mass of direct and positive
proof.
Application denied.
Estate of CORNELIUS KING, Deceased.
[No. 15,068; decided March 8, 1896.]
Letters of Administration. — If the Executor Named in a Will is
incompetent, or renounces, or fails to apply for letters, then letters
of administration with the will annexed must be issued as provided
in section 136.5 of the Code of Civil Procedure.
Executors — Renunciation of Eight to Letters by Noininating Ad-
ministrator. — Where the executors named in a will request the
appointment of another person as administrator, who is appointed
and dies during administration, and the executors thereupon apply
for letters, such application is based upon the circumstances then
existing, and their previous failure to apply for letters does not aflfect
their right to appointment under such altered circumstances.
Executors — Right to Letters After Death of Administrator with
Will Annexed. — Where petitioners for letters are next of kin of the
testator, and would be entitled if he had died intestate to share in
the distribution of his estate, they are entitled to administer thereon
in preference to the public administrator, without the testator's nom-
ination of them as his executors; and their request for the appoint-
ment of another as administrator, who is appointed accordingly and
dies during administration, does not deprive them of their right to
letters after the death of such administrator.
Estate op King. 11
Executors.—Where Executors Fail to Apply for Letters Testa-
mentary, the court is authorized to appoint an administrator with the
will annexed, without any request or renunciation by the executors.
It does not follow, therefore, when the executors make a request,
that the court, by appointing an administrator with the will annexed,
treated such request as an absolute renunciation.
Executors — Renunciation by Nominating Administrator. — Two heirs
and legatees of the decedent, who were also named in his will as exec-
utors, requested the appointment of a person designated by them as
administrator with the will annexed; and, with the expressed inten-
tion that such person and no other should be appointed administrator,
declined to act as executors. Their nominee was accordiugly appointed,
but thereafter died. Thereupon the executors petitioned for the issu-
ance of letters testamentary to themselves; the public administrator
petitioned for his own appointment as administrator with the will
annexed, contending that the executors had renounced their right to
letters. It was held that the right of the executors to appointment
was affected by their original request only to the extent of preventing
them from being appointed as against their nominee, and that such
request did not amount to an absolute renunciation.
Knight & Heggerty and Blake & Harrison, for the execu-
tors.
J. D. Sullivan and Herbert Choynski, for A. C. Freese,
public administrator.
COFFEY, J. Cornelius King, aged eighty-five years and
upward, unmarried and childless, died on the twenty-fifth
day of July, 1894, at Napa City, Napa county, California, in
the asylum for the insane, to which institution he had been
committed from the city and county of San Francisco, of
which he was and had been for many years a resident, and
in which he left an estate mainly in cash, money deposited
in savings banks to the amount of upward of $200,000. He
left a will dated April 14, 1885, in possession of one J. B.
Fargo, a copy of which will is here inserted.
The will of Cornelius King is as follows:
"I, Cornelius King, of the City and County of San Fran-
cisco, State of California, do make, publish, ordain and de-
clare this to be my last will and testament.
"First. I hereby revoke any and all wills by me hereto-
fore made.
12 Coffey's Probate Decisions, Vol. 4.
"Second. I direct my executors and executrix, herein-
after named, to expend the sum of ten thousand dollars in
and about the expenses of mj^ funeral and the erection of a
monument over the place where m}?- remains may be buried,
and I hereby appropriate the sum of ten thousand dollars
of my estate for that purpose.
"Third. I give and bequeath to the two children of Brid-
get, daughter of my deceased aunt, Mrs. Mary Cronin, of
Petaluma, in this State, the sum of five hundred dollars each
in gold coin.
"Fourth. I give, bequeath and devise all the residue of
the estate, real, personal and mixed, of which I may die
possessed, or to which I may be entitled at the time of my
death, to my nephews, Cornelius, James and Daniel; and to
my niece, Mary; the children of my deceased brother, Dennis
King, formerly of Seneca Falls, in the County of Seneca,
State of New York, and to the survivors and survivor of them
in equal shares; provided, that if Siny of them shall have
died before me, leaving children surviving them, such children
shall take the share which their parent would have taken if
living.
"Fifth. I nominate, constitute and appoint mj^ said
nephews and niece to be executors and executrix of this my
will, and hereby direct that no bonds shall be required of
them in that capacity.
"In witness whereof, I have hereunto subscribed my hand
this fourteenth day of April, 1885.
"C. KING.
"The above foregoing written instrument was subscribed
by the said Cornelius King in our presence, and acknowl-
edged by him to each of us; and he at the same time pub-
lished and declared the above instrument so subscribed to be
his last will and testament ; and we at his request, in his
presence and in the presence of each other, have signed our
names as witnesses thereto and written opposite to our names
our respective places of residence, the 14th April, 1885.
"J. E. BRANDON,
"2907 Washington St., S. Franco.
**C. V. GREY,
"1304 Post St., San Francisco."
Estate of King. 13
August 7, 1894, a petition was filed in this court by said
J. B. Fargo, asking for the probate of this will, and for
the issuance to him of letters of administration with the will
annexed, in accordance with a request proceeding from the
executors named therein. For the better illustration of the
issues before the court the request signed and acknowledged
by the said executors is here reproduced:
"Now come James King and Daniel King, nephews and
heirs at law of Cornelius King, deceased, and named in the
will of said deceased as executors of the will of said deceased,
and represent and petition the court as follows :
"That said James King and Daniel King are now, and for
many years past have been, residents of the city and county
of San Francisco, state of California ; and are nephews of
said Cornelius King, deceased ; and are named in the last will
and testament of said deceased as his nephews and among
his legatees ; and are also nominated and named in said will,
with Cornelius King and Mary Elizabeth Colbert, a nephew
and niece of said deceased, as the executors of said will; that
said nephew Cornelius King, and said niece Mary Elizabeth
Colbert, were at the time of their death residents of the state
of New York, and that they are now dead, and died some
time prior to the death of said Cornelius King.
"That said James King and Daniel King do hereby re-
quest, ask and pray the said superior court and the judge
thereof before whom the administration of the estate of said
Cornelius King, deceased, shall come, to appoint J. B. Fargo,
of San Francisco, California, to be the administrator with the
will annexed of said Cornelius King, deceased; and they do
hereby and herein nominate, select and request said J. B.
Fargo to be appointed and act as such administrator of said
estate; and for that purpose, and with the intention that
said J. B. Fargo, and no other person, shall be appointed or
act as such administrator, or administer said estate, the said
James and Daniel King do hereby and herein decline to act
as executors of said last will, and select and designate the said
J. B. Fargo to act as administrator of said estate, and admin-
ister said estate, in their place and stead; and that he be
appointed and letters of administration issue to him as such
administrator. ' '
14 Coffey's Probate Decisions, Vol. 4.
August 22, 1894, the will was admitted to probate and J. B.
Fargo was appointed and qualified as administrator with the
Avill annexed, and so continued until January 5, 1896, when
he died pending the uncompleted administration.
On January 7, 1896, two days after the death of said
J. B. Fargo, the said James King and Daniel King, by them-
selves and through their attorneys, Knight & Heggerty and
Blake & Harrison, tiled a petition in which, after reciting
the main facts already stated, saj-^ further that on the fifteenth
day of October, A. D. 1895, the said J. B. Fargo filed in
this court a sworn inventory of the estate of said deceased,
showing the character and value thereof to be as follows:
Money on deposit in savings banks in said city and county
amounting to the sum of $214,371.60; and four promissory
notes appraised as of no value; that said deceased died with-
out issue and unmarried, and that he left neither father, nor
mother, nor brother, nor sister, surviving him, and left sur-
viving him as his only heirs at law your petitioners, both of
whom are the children of Dennis King, a deceased brother of
said testator; and that petitioners are both over the age of
majority and bona fide residents of said city and county of
San Francisco, and in all respects competent to administer
said estate; that the legatees and devisees named in said will
are petitioners and Cornelius King and Mary King; that said
Mary King died before said testator and left no issue sur-
viving her ; that said Cornelius King, named in said will, also
died before said estate, and left surviving him four children,
namely: James King, Cornelius King, Mary King and Valen-
tine King, all of whom are minors and reside at Seneca Falls,
in the state of New York ; that it is necessary that letters
testamentary should now issue to petitioners in order that
the administration of the said estate of said testator may be
properly completed.
On January 10, 1896, A. C. Freese, public administrator,
presented his petition setting forth the death and residence
and value and character of the property in the estate of
decedent, and that said decedent left a document purporting
to be his last will and testament, and said document was duly
admitted to probate herein as the last will of said decedent;
that James King and Daniel King, named in said will as
Estate of King, 15
executors thereof, declined to act as such and renounced the
trust, and requested the appointment of J. B. Fargo as admin-
istrator with the will annexed of said estate ; and thereafter,
on the twenty-second day of August, 1894, letters of admin-
istration with the will annexed upon said estate were duly
issued herein to said J. B. Fargo, and he continued to act
as such administrator with the will annexed until the fifth
day of January, 1896, and on said last-mentioned day said
J. B. Fargo died at said city and county; that the adminis-
tration of said estate of Cornelius King has not been com-
pleted, and it is necessary that an administrator with the
will annexed be appointed herein to complete the adminis-
tration thereof; that petitions have been filed herein to revoke
the probate of said alleged will by Mary Machado, a half-
sister of said Cornelius King, deceased ; Florence Gary King,
a half-brother of said Cornelius King, deceased, both resi-
dents of said state of California ; Kate Sullivan, a half-sister
of said deceased; and Florence Cary King, Jr., a nephew of
said deceased; that James King and Daniel King, nephews
of said Cornelius King, reside in said state of California;
that the above named are the only heirs of said deceased,
Cornelius King, residing in said state of California ; that said
applications to revoke the probate of said will are now pend-
ing and undetermined. Wherefore, petitioner prays that
letters of administration with the will annexed upon said
estate be issued to him.
Upon these facts the question arises: To which of these
applicants should the administration of this estate be in-
trusted?
The counsel for the public administrator insist that tlie
executors have stated themselves out of court by their original
request for the appointment of Fargo, and claim that this
request was necessarily construed by the court to be a renun-
ciation, otherwise the court would have had no power to
make the appointment; and that the contention of the coun-
sel for the executors that they reserved any right by the
limitation of the request is untenable, because there is nothing
in section 1350 of the Code of Civil Procedure, or in any
other section of the probate statutes, that authorizes a quali-
fied renunciation, and letters testamentary, or in lieu thereof
16 Coffey's Probate Decisions, Vol. 4.
letters of administration with the will annexed, can only be
issued once, and that is upon the proving of the will.
Counsel for the public administrator further contend that
DO authority can be cited where it is held that an executor
may so qualify his renunciation as to reserve the right to
letters testamentary in the event of the death of the admin-
istrator with the will annexed, and that section 1350, Code of
Civil Procedure, has reference only to absolute and unquali-
fied renunciation; and if in such renunciation the executor
should so qualify his renunciation, the qualification would be
void. They contend that the statute has not provided for any
such qualified renunciation, but by section 1350, Code of
Civil Procedure, it is provided: "If the sole executor or all
the executors are incompetent, or renounce, or fail to apply
for letters, or to appear and qualify, letters of administration
with the will annexed must be issued as designated and
provided in cases of intestacy." To sanction a qualified re-
nunciation, as sought in this case, counsel for the public
administrator argue, would be to destroy the effect entirely
of the above section — to interpolate into said section a pro-
viso that does not exist.
The averments of the petitions of James and Daniel King
are, counsel for the public administrator claim, conclusive of
their position in this matter.
The petition of Fargo recites: "That said James and
Daniel King decline to act as executors, and in writing have
requested and designated petitioner to be appointed admin-
istrator with the will annexed ; and have joined in this peti-
tion for the probate of said will and appointment of petitioner
as administrator.
"That said James and Daniel King, named in said will as
executors thereof, decline to act as such, and request the
appointment of petitioner as administrator."
The petition of Fargo further contains the following over
the signatures of Daniel and James King : ' ' We, James King
and Daniel King, named in said will as executors, hereby
join in the above petition and request the appointment of
J. B. Fargo as administrator with the will annexed of Cor-
nelius King, deceased."
The order admitting the will to probate and appointing
Fargo administrator further shows: "James King and Daniel
Estate op Kino. 17
King, nephews and heirs at law of said deceased, and who are
named in the will of said deceased as the executors of the
said will, have declined to serve or act as such executors,
and have requested the appointment of said petitioner, J. B.
Fargo, as administrator with the will annexed, and being
personally present in court upon the said hearing and being
by the court examined upon the hearing of said petition."
The order is the order of the court, say counsel — the court's
adjudication of two points of the present controversy — and
the proof is offered on this hearing by James and Daniel
King that they have both renounced their rights to be execu-
tors under the will, and also their rights to be administrators
with the will annexed.
The counsel for the public administrator assert that the
court has already adjudicated these things — and it is clear
under section 1350, Code of Civil Procedure, that the first
steps having been taken for the appointment of adminis-
trators, etc., and the will of Cornelius King, deceased, being
left without executors to operate under it, recourse must next
be had to the persons entitled to administration under section
1365, Code of Civil Procedure, to determine to whom letters
of administration with the will annexed shall be issued. Who
are so first entitled? James and Daniel King, nephews of
deceased. But they have, counsel insist, under section 1379,
Code of Civil Procedure, renounced their right to such let-
ters and have requested the appointment of Fargo to be
administrator with the will annexed; and, therefore, counsel
claim they have waived and renounced all rights to adminis-
tration of this state ; and they are concluded by their own
petitions and the order of the court thereupon made.
"The fair and legitimate interpretation of this provision
is, that a judgment or order respecting the administration
of the estate is conclusive upon the administration as to all
matters directly involved in such judgment or order": Howell
V. Budd, 91 Cal. 349, 27 Pac. 747.
"The probate court had jurisdiction of the subject matter
before it, viz., the resignation of the executors, and it had
jurisdiction of the parties interested. Having such juris-
diction, all presumptions are in favor of the regularity of its
Prob. Dec, Vol. IV — 2
18 Coffey's Probate Decisions, Vol. 4.
proceedings and the validitj^ of its order, and the order ac-
cepting the resignation cannot be collateral!}^ attacked": Luco
V. Commercial Bank, 70 Cal. 339, 11 Pac. 650.
"It must be presumed, in favor of the action of the court,
that all the conditions existed which were necessary to au-
thorize the appointment": Jennings v. Le Breton, 80 Cal.
9, 21 Pac. 1127.
"A petition for letters of administration is a pleading, and
the rules in regard to admissions in pleadings apply to it":
Duff V. Duff, 71 Cal. 513, 12 Pac. 570.
How, then, ask counsel for the public administrator, can
these nephews assert in the face of their own petitions, in the
face of their own proof and the judgment of the court, that
they did not renounce their rights as executors of the will
and also their rights to letters of administration?
The court having once adjudicated that the conditions pre-
cedent to the issuance of letters of administration with the
will annexed existed, under section 1350, Code of Civil Pro-
cedure, and having thereupon issued letters of administra-
tion to the nominee of the nephews — it is strenuously insisted
— they must be held to have renounced all and every of their
rights to administration upon this estate for all time.
"Where one who is entitled to administer upon an estate
waives his right to be appointed, or refuses to make applica-
tion for letters of administration when requested to do so,
the probate court may appoint anyone else who is entitled to
letters, and after it has done so, it would not be error to
refuse to revoke the grant of letters or the application of him
who had waived his right or refused to make application in
the first instance": Estate of Keane, 56 Cal. 409.
The nephews in this case, it is argued by the counsel for
the public administrator, have both waived their rights, and,
by requesting the appointment of Fargo, "refused to apply
for letters themselves," and therefore they are not entitled
to consideration on this present contest for letters ; and the
decisions referred to in the executors' brief, it is said by the
same counsel, carry out the same reasoning that "a written
request by one entitled to letters of administration upon an
estate, for the appointment of a nominee, is a waiver and
relinquishment of his right to administration."
Estate of King. 19
"If he fails to make application within proper time, letter-i
of administration with the will annexed must be issued to
some other person": In re Brown, 80 Cal. 384, 22 Pac. 233.
"The meaning of these sections is that, at the time of ad-
mitting the will to probate, the court must appoint as execu-
tor the person who is named therein as such, if he has peti-
tioned therefor, and is not incompetent": Estate of Bauquier,
88 Cal. 308, 26 Pac. 178, 532.
While pending before the court for its decision, and after
the submission of the case for decision, the petitioners for
letters testamentary filed in this court another petition for
letters of administration with the will annexed, thereby at-
tempting to make a drag-net out of the law. It is submitted
by the public administrator that this last petition cannot be
maintained while the other proceeding is pending, for the
reason that when a person elects to pursue one remedy' he
cannot pursue at the same time another remedy in respect
to the same subject matter. This is illustrated by the familiar
rule that a person may in many cases waive a tort and sue
on contract, and, once having elected, he is confined to that
remedy; and, for another reason, that there is another pro-
ceeding between the same parties with respect to the same
subject matter: Code Civ. Proc, sec. 1713.
Recurring to the merits of the petition for letters testa-
mentary, counsel for the public administrator submit that in
view of section 1350 the court has no jurisdiction to issue
letters testamentary. The only jurisdiction the court has,
these counsel assert, is to issue letters of administration with
the will annexed as provided in section 1350, Code of Civil
Procedure, and they say that the statements in the petition
show that the court has no jurisdiction to entertain the
petition for letters testamentary, and that then the only ap-
plication that can be entertained is that of the public admin-
istrator for letters of administration with the will annexed.
Section 1350 of the Code of Civil Procedure provides that
if all the executors renounce, or fail to apply for letters, or
to appear and qualify, letters of administration must be
issued as in cases of intestacy.
It is argued by counsel for the public administrator, upon
this, that because the court did in this case issue letters of
20 Coffey's Probate Decisions, Vol. 4.
administration as in a case of intestacy, therefore it must
have found that all the executors either renounced or failed
to apply for letters, or failed to appear and qualify.
It is true that all the executors did for the time being
fail to apply for^letters, or to appear and qualify, but they
did not renounce. They requested the appointment of Mr.
Fargo, but their own right beyond this was not affected by
that act, and this request was not a renunciation of their
right. If Mr. Fargo had declined to act, or if the court had
for any reason denied his application or refused to appoint
him, the executors would have still retained their right to
letters and could then have asserted it ; and the fact that the
court acted upon this request of theirs and appointed Mr.
Fargo gives it no stronger a character as a renunciation.
It is true that they did fail to apply for letters for the time
being. If they had not so .failed the court could not, of
course, have appointed the administrator, but the court has
already acted upon this failure as directed by section 1350,
Code of Civil Procedure, and letters of administration have
been issued as in a case of intestacy. This failure now, how-
ever, no longer appears.
The executors are here asserting their right, and insisting
upon it, and the court's direction is now found in section
1349, Code of Civil Procedure, and it must issue letters to
the persons named in the will as executors who are competent
to discharge the trust, who must appear and qualify, unless
objection is made as provided in section 1351, Code of Civil
Procedure, and the only objection provided for by that sec-
tion is such as can be made by some person interested in the
will, and no such person appears objecting.
In what has been said section 1301 is not overlooked, where-
in it is provided that a failure for thirty days to petition
for letters may be held to amount to a renunciation unless
good cause for delay is shown ; but the cause for the delay
here sufficiently appears, and even if no such cause appeared,
there would be no occasion for the court to exercise the dis-
cretion given by this section against the executors, for the
delay has resulted in no injury to the persons interested
under the w^ill, or to the heirs of the testator.
Estate of King. 21
This court in the Estate of Bedell, 3 Cof. Pro. Dec. 78, af-
firmed by the supreme court in 97 Cal. 339, 32 Pae. 323, holds
that a person entitled to letters, who has nominated another,
"cannot revive his privilege nor retract his waiver and re-
quest as against the petitioner." This, and all the cases hold-
ing the similar rule, follow the Estate of Kirtlan, 16 Cal. 161-
165, in which the court says: "We do not see that the brother
might not have waived this right of administration, as well
as any other right, in favor of a competent person ; and hav-
ing done so, and encouraged the petition to go to expense
and trouble in applying for this office, why he is not, on
familiar principles, estopped now from withdrawing his assent
and waiver, or renunciation."
In other words, the rule to be deduced from the authorities
is that the nomination of another as administrator simply
estops the party making the nomination from afterward
asserting his right to the prejudice of his own nominee.
The fact that such nomination and waiver goes no further
than this seems to be recognized in Estate of Moore, 68 Cal.
281, 9 Pac. 164. In that case the widow nominated another
person to be administrator, and he was accordingly appointed.
He was afterward adjudged insane and committed to the
asylum. Later, and after his restoration to capacity, the
widow applied to have letters of administration issued to
herself upon the theory that the insanity had created a va-
cancy. The court held that the insanity of the administrator
did not ipso facto cause a vacancy in the office without an
order vacating his letters, and upon that ground alone the
application of the widow was denied; and it does not appear
to have occurred to the court or any of the counsel in that
case to make the claim that the widow's right died with her
nomination ; on the contrary, the supreme court say that if
the widow had applied for letters during the incapacity of
her nominee, she would doubtless have received them.
The executors petitioning here are next of kin of the tes-
tator, and would be entitled if he had died intestate to share
in the distribution of his estate ; and as such next of kin are
entitled in preference to the public administrator, without
the testator's nomination of them as his executors.
22 Coffey's Probate Decisions, Vol. 4.
Counsel for the public administrator argue that there is no
authority for the limited declination made by the executors
here, and that, therefore, it must be treated as an absolute
renunciation, because without a renunciation the court had
no authority to appoint Fargo. No renunciation is neces-
sary. If no writing whatever had been signed by the execu-
tors, but they had merely failed to appear and qualify, the
court, under section 1350, Code of Civil Procedure, could, as
it did, appoint an administrator with the will annexed, and
this failure to appear and qualify now no longer existing, it
is the court's duty, under section 1349, Code of Civil Pro-
cedure, to issue letters to the executors.
The petitioners, James King and Daniel King, are entitled
to letters testamentary, and the application of the public ad-
ministrator should be denied.
Let an order be entered accordingly.
Estate op JOSEPH W. DAGER, Deceased.
[No. 15,177; decided July 22, 1896.]
Wills — Meaning of the Word "Heirs." — Since a living person can
have no heirs, a legacy to the "heirs" of a person living must be
treated as void unless the word can be given some other than its
technical meaning.
Wills — Lapse of Legacy. — Unless the clear intention of a testator
requires it, a construction resulting in the lapse of a gift should be
avoided.
Wills— "Heirs" Construed as "Children."— Where it appears from
other expressions in a will that the testator used the word "heirs" to
mean "children," it may be given that meaning.
Wills. — Where a Word Is Used in a Particular Sense in one part
of the will, it may be presumed that it is used in the same sense
when employed in a subsequent part of the instrument.
Wills — Gift to Persons in Common. — A devise or legacy to two or
more persons is presumed to vest in them an estate as tenants in
common.
Wills.— Where a Testator Made a Bequest of $500 "to the heirs
of George and William," brothers of his deceased wife, it was held
that the bequest was intended to be given as an entirety to a single
Estate of Dager. 23
class, namely, the heirs of George and William, and to whomsoever,
at the time of the death of the testator, should come within that
class as tenants in common, and that they should take equally, that
is, per capita and not per stirpes.
Wills. — Where the Testator Made a Bequest of $500 "to the heirs of
Cieorge and William," brothers of his deceased wife, and William
was living at the time of the testator's death, it was held that the
word "heirs" was used in the sense of "children," and that the be-
quest should be divided among the children of George and William
per capita.
The will of the above-named decedent was admitted to
probate, and letters testamentary issued to the California
Safe Deposit and Trust Company, on October 2, 1894.
A petition for distribution was filed by the executor on
May 15, 1896.
Gunnison, Booth & Bartnett and R. W. Ilent, for the
executor.
J. J. Lermen, for certain heirs.
Loewy & Gutsch, for certain other heirs.
COFFEY, J. Captain Joseph W. Dager died September
11, 1894, leaving a last will and testament dated July 14,
1894. Testator was at the time of the execution of his will
of the age of seventy-three years. He had one brother and
five sisters, all of them older than himself, and all of them
being dead at the date of the execution of the will. He
knew that his brother and three of his sisters left children,
and these are mentioned in his will. His wife had been dead
about thirteen years. For a long period of years he had
heard nothing of his wife's relatives, residing in Germany, or
his own, residing in the eastern states, and knew nothing
definite about them. He had been a sailor and sea captain
in early life, and had not engaged in that pursuit for a num-
ber of years before his death. He dictated the terms of his
will to Mr. R. W. Hent, a practitioner of recognized skill and
long and wide experience at the San Francisco bar, and in-
sisted on referring to the children of his brother and sisters,
24 Coffey's Probate Decisions, Vol. 4.
as well as the children of his wife's relatives, as "heirs."
Mr. Hent complied with the letter of this request, and used
the word "heirs" throughout, even though in the case of the
legacies to the "heirs" of his brother and sisters the testator
could have referred to them as children, knowing personally
that there were such.
The will is as follows:
"In the name of God, Amen. I, Joseph W. Dager, of the
City and County of San Francisco, State of California, of
the age of seventy-three years, and being of sound and dis-
posing mind, do make, publish and declare this my last will
and testament, in manner following, that is to say:
"First — I give and bequeath to the heirs of my brother,
Thomas Dager, late of Saugus, State of Massachusetts, de-
ceased, the sum of two thousand dollars ($2,000).
"Secondly — I give and bequeath to the heirs of my sister,
Mrs. Sarah Lord, late of Roxbury, State of Massachusetts,
deceased, the sum of two thousand dollars ($2,000).
"Thirdly — I give and bequeath to the heirs of my sister,
Mrs. Lucy Sanford, late of Framingham, State of Massa-
chusetts, deceased, the sum of two thousand dollars ($2,000).
"Fourthly — I give and bequeath to the heirs of my sister,
Mrs. Lois Harrington, late of Concord, State of Massachusetts,
deceased, the sum of two thousand dollars ($2,000).
"Fifthly — I give and bequeath to Mrs. Caroline D. E.
Grabe, my late wife's niece, the sum of fifteen hundred dol-
lars ($1,500).
"Sixthly — I give and bequeath to Amelia Hoffman, wife
of Charles Hoffman, and the adopted daughter of said Mrs.
Caroline D. E. Grabe, the sum of one thousand dollars
($1,000).
"Seventhly — I give and bequeath to the heirs of Ludwig
and Charlotta Hulsing, the father and mother of said Mrs.
Caroline D. E. Grabe, late of Bunrode, Germany, deceased,
the sum of five hundred dollars ($500).
"Eighthly— I give and bequeath to the heirs of Gottlieb
Festing and Minna Festing, his wife, my late wife's sister,
late of Hanover, Germany, deceased, the sum of five hun-
dred dollars ($500).
Estate of Dageb. 25
"Ninthly — I give and bequeath to the heirs of Henry
Eicke and Sophia Eicke, his wife, my late wife's sister, late
of Gleidengen, Province of Hanover, Germany, deceased, the
sum of five hundred dollars ($500).
"Tenthly — I give and bequeath to the heirs of George and
William Knauer, brothers of my late wife, late of Misburg,
Hanover, Germany, deceased, the sum of five hundred dollars
($500).
"Eleventhly — I give and bequeath to Mrs. Minna Marvin,
of Sutter County, State of California, the sum of one thou-
sand dollars ($1,000), and to her daughter, Caroline Freese
Marvin, the sum of five hundred dollars ($500).
"Twelfthly — In case any of the said legatees hereinbefore
named shall not be living at the time of my death, then I
give and bequeath such deceased legatee's share to her heirs.
" Thirteenthly — I give and bequeath to the Laurel Hill
Cemetery the sum of one thousand dollars ($1,000), in trust,
to be expended in keeping my burial lot in good condition.
"Fourteenthly — I give, devise and bequeath all the re-
mainder of my estate to the aforesaid legatees, except said
Laurel Hill Cemetery, in the proportions of their aforesaid
respective legacies.
"Fifteenthly — I hereby appoint the California Safe De-
posit and Trust Company the executor of this my last will
and testament, and I hereby revoke all former wills by me
made.
"Lastly— I desire that my attorney, R. W. Hent, be re-
tained to act as attorney for my estate.
"In witness whereof, I have hereunto set my hand, this
14th day of July, 1894.
"JOSEPH WARREN DAGER."
Attested in usual form and admitted to probate in due
course of law.
The eighth provision of the will of said decedent is as
follows :
"I give and bequeath to the heirs of Gottlieb Festing and
Minna Festing, his wife,my late wife's sister, late of Hanover,
Germany, deceased, the sum of five hundred dollars ($500)."
The tenth item of said will is as follows:
26 Coffey's Probate Decisions, Vol. 4.
"I give and bequeath to the heirs of George and William
Knaiier. brothers of my late wife, late of Misburg, Hanover.
Germany, deceased, the sum of five hundred dollars ($500)."
Gottlieb Felting, the husband of Minna Festing, is still liv-
ing, and William Knauer, mentioned in the tenth item in
said will, is also living.
The bequests are "to the heirs of Gottlieb Festing and
Minna Festing," and also "to the heirs of George and Will-
iam Knauer."
Schouler on Wills, section 542, says: "The word 'heirs' is
flexible on the whole, and may denote 'next of kin' or 'heirs
at law,' according to the nature of the property given, as
well as next of kin in one sense or another. But what this
word signifies is in all cases a question of intention ; and if
other expressions in the will and the w^hole context clearly in-
dicate what the testator meant, and that his meaning was not
according to the usual sense of 'heirs' as above, that inten-
tion must prevail. And whether in accordance with the pre-
sumption or against it, we often find 'heirs' construed by a
court where the sense permits as though it were written 'chil-
dren.' For 'issue,' 'children,' 'heirs' are constantly inter-
changed in testaments."
In the will of decedent, according to the argument of the
executor, there is nothing to show that the testator used the
word "heir" in anything else than its technical meaning.
Elsewhere throughout the will the word is used correctly, and
in the present clauses, the executor insists, it is evident that
the testator regarded Gottlieb Festing, and also William
Knauer, as dead.
"Technical words in a will are to be taken in their tech-
nical sense, unless the context clearly indicates a contrary
intention": Civ. Code, sec. 1327.
Section 1334 of the Civil Code defines persons in whom
testamentary disposition vests property under a general dis-
position to "heirs."
In both the eighth and tenth clauses of the will the devise
is to persons not in existence, for Gottlieb Festing and Will-
iam Knauer, being alive, legally have no heirs, consequently
these legacies must be treated as void legacies unless, under
the intimation of this court, the eighth bequest to the heirs
Estate of Dageb, 27
of Gottlieb and Minna Festing shall be construed as though
it were written "children."
George and William Knauer are brothers, and, William be-
ing alive, counsel for the executors argue that the legacy to
his heirs must be treated as void.
A void legacy is defined in 13 American and English Ency-
clopedia of Law, page 28: "A void legacy or devise is one
which never has had any legal existence ; a lapsed legacy or
devise is one which, originally valid, afterward fails, because
the capacity or willingness of the donee to take has ceased to
exist before he obtained a vested interest in the gift."
Sections 1332, 1333, of the Civil Code define the effect of a
residuary bequest on void or lapsed legacies.
Section 1332: "A devise of the residue of the testator's
real property passes all the real property which he was en-
titled to devise at the time of his death not otherwise ef-
fectually devised by his will"; and section 1333 is to the same
effect, except that it refers to personal property.
The bequests in both cases are to the heirs of two persons.
The question is whether these heirs would take jointly or as
tenants in common.
Schouler on Wills, section 566, discussing the question of
joint tenancy and tenancy in common, states as follows: "The
point of distinction here to be noted is that, in case of a joint
tenancy, the failure of the devise or bequest as to any one of
the parties named will carry the gift to the other or others
by force of survivorship, that striking incident of relation ;
but when, on the other hand, the gift is to tenants in common,
the death of one of them before the testator, or the failure
of his share from some other cause, will produce a lapse with
the usual result in favor of heir, next of kin, or residuary
devisee or legatee, as the case may be."
Our codes, however, have abolished this presumption of a
joint tenancy, and interests, when owned by several persons,
are presumed to be in common.
Section 683, Civil Code: "A joint interest is one owned by
several persons in equal shares, by a title created by a single
will or transfer, when expressly declared in the will or trans-
fer to be a joint tenancy, or when granted or devised to ex-
ecutors or trustees as joint tenants."
28 Coffey's Probate Decisions, Vol. 4.
Section 685, Civil Code: "An interest in common is one
owned by several persons, not in joint ownership or partner-
ship."
Section 686, Civil Code: "Every interest created in favor
of several persons in their own right is an interest in com-
mon, unless acquired by them in partnership, for partnership
purposes, or unless declared in its creation to be a joint in-
terest, as provided in section 683, or unless acquired as com-
munity property."
Section 1350, Civil Code, provides: "A devise or legacy
given to more than one person vests in them as owners in
common."
The interest then being in common, the executor contends
that the effect of the lapse of the legacy to the heirs of Will-
iam Knauer is to strike $250 from that clause, and to throw
that sum into the residuary fund, to be distributed under
the provisions of the will relating to the remainder of de-
cedent's estate.
The executor submits that the legacies above referred to,
and particularly the legacy to the heirs of William Knauer,
deceased, are to be treated as lapsed legacies, and that the
same should become a portion of the residuum of said estate,
to be distributed under the provisions of the will of said de-
cedent.
Mr. Lermen. counsel for certain heirs at law, confines his
contention to the tenth provision of the will of deceased, as
that presents all the questions that can arise in the eighth.
The tenth provision is as follows: "I give and bequeath to
the heirs of George and William Knauer, brothers of my
late wife, late of Misburg, Hanover, Germany, deceased, the
sum of $500."
The first question that presents itself is whether this legacy
will go to two classes, the heirs of George and the heirs of
William Knauer, or whether only one class is created, all the
members of that class taking per capita, the latter position
being taken by the attorneys for the German heirs.
There are several cases similar to the one at hand, wherein
it is held that there are created two classes, each taking one-
half, and the members of each class taking per stirpes and not
Estate of Dager. 29
per capita: Bassett v. Granger, 100 Mass. 348; Fissel's Ap-
peal, 27 Pa. 55.
Especially is this true in cases where the descendants or
next of kin of the two parties named must necessarily belong
to a different class: See 29 Am. & Eng. Ency. of Law, 428,
and cases cited in note 1.
For the purposes of the inquiry, it may therefore be taken
that this provision of the will might as well have been writ-
ten : "I give and bequeath to the heirs of George Knauer
$250, and to the heirs of William Knauer $250."
William Knauer is living, and the question therefore is.
How shall be construed the legacy to his heirs? There can
be no doubt that, under the sections of the code cited by
counsel for the executor, the legacy supra, if it lapses at all,
lapses to the entire estate — in other words, that a tenancy in
common is created. The chief difficulty, of course, is that a
living man can have no heirs.
If the word "heirs" is to be taken in its technical sense,
of course the legacy lapses. The first and great object is to
inquire what was the intention of the testator, and, looking
at the will as a whole, the word should be construed as mean-
ing "children." In the first place, the testator gives to the
heirs of each of his three sisters and his brother, all of them
deceased, the sum of $2,000. There can be no possible doubt
that in this case he meant their descendants. He knew his
sisters and brother were dead, and he knew that they had
children. That much is in evidence. It is not unreasonable
to suppose that in using the word "heirs," later on in the
instrument, he used it in the same sense. In addition, it will
be noticed that he singles out the brothers and the sisters of
his deceased wife, giving to the heirs of them all some spec-
ified amount.
A case on all-fours with the present one is Lott v. Thomp-
son, 36 S. C. 38, 15 S. E. 278. Besides being well considered,
it fits in well with the facts of this case.
In Lott V. Thompson the testator directed that "the bal-
ance of my property to be equally divided between my heirs
only Betsy and Martha, the heirs of their body to have an
equal share with the rest of my heirs." Betsy and Martha
were living at the death of the testator. The lower court
30 Coffey's Probate Decisions, Vol. 4.
held, inasmuch as Betsy and Martha were still living, the
plaintiffs were not the heirs of their body under the maxim,
"Nemo est haeres viventis."
The court said: "It is quite true that in a strict sense no
person can sustain the character of 'heir' in the lifetime of
the ancestor, according to the familiar maxim, 'Nemo est
haeres viventis'; but it is always open to inquiry whether the
testator used the words according to the strict and proper
acceptation, or in a more inaccurate sense, to denote 'chil-
dren,' 'next of kin,' etc. : Bailey v. Paterson, 3 Rich. 158. In
discussing that case Chancellor Dunkin said: 'The testator
takes notice that the ancestor was alive at the making of his
will. There can be no doubt that the testator did not intend
that the words "lawful heirs" should be taken in their tech-
nical meaning, but he intended to designate a class of per-
sons who could take immediately on his death, ' etc. We think
it is manifest that in this case the testator did not employ
the word 'heirs' in its technical sense. The tenor of the will
shows it. The word ' heirs ' occurs four times in the will, and
in every instance it is used as synonymous with 'children.*
"Precisely so in the case at bar. The testator, in at least
four instances, viz., the bequest to the heirs of his three sis-
ters and his brother, used the word 'heirs' as synonymous with
'children.' And the court, in concluding this branch of the
case, said: 'The maxim, "Nemo est haeres viventis" has no
proper application whatever to the case': See Bailey v. Pater-
son, supra; Ramsey v. Joyce, McMull. Eq. 252, 37 Am. Dec.
550, and Lemacks v. Glover, 1 Rich. Eq. 141."
It will be noticed also that in the cases just quoted, as Avell
as the one now in hand, the heirs of A and B must certainly
constitute separate classes, provided the word "heirs" means
"children," as A and B in the cases cited were sisters, and
in the case at hand are brothers.
The will further provided that "the heirs of their body to
have an equal share with the rest of my heirs," and the court,
being called upon to construe this portion of the will as well,
held that there were two classes, the members of each class
taking per stirpes and not per capita.
The following authorities bear out in some way the prop-
ositions hereinabove set forth: Ballentine v. Wood, 5 Am.
Estate of Dager. 31
Prob. Rep. 244, 249; Kelley v. Yigas, 5 Am. Prob. Rep. 315;
Hughes V. Clark, 16 Ky. Law Rep. 41, 26 S. W. 187; Boyd
V. Robinson, 93 Tenn. 1, 23 S. W. 72; Johnson v. Brasington,
68 N. y. St. Rep. 44, 34 N. Y. Supp. 200 ; Stewart v. Powers,
9 Ohio C. C. 143.
Mr. Lermen arrives at the conclusion from these cases that
the testator intended to give to the children of "William
Knauer $250, and thinks he has pointed out a way to escape
a lapsed legacy.
There is no good reason why there should be attributed
to the testator (Avho, according to the evidence of his at-
torney, Mr. R. W. Hent, insisted on dictating the will in
his own language) the intention of introducing into the in-
strument a quantity of most complicated legal prol)lems.
When a layman makes a bequest to the heirs of a man and his
wife — whether or not he is aware of the death of both, or
either, or of their having children — the presumption certainly
is that he means the issue of their marriage. The testator
had doubtless been informed by his wife that her sister Minna
Festing had children of her marriage to Gottlieb Festing.
The testator knew that his brother and his sisters had chil-
dren, yet he speaks of these children in every instance as
"heirs."
The bequest of $500 to the heirs of George Knauer and
William Knauer M'as intended to be given as an entirety' to a
single class, viz., the heirs of George and William Knauer,
and to whomever, at the time of the death of the testator,
should come within that class, as tenants in common.
Each of the bequests numbered 1, 2, 3, 4, 7, 8, 9, is given to
a class. And so the testator must have intended this bequest
of $500 to go as an entirety to the heirs of George and Will-
iam Knauer as a single class. If he had wanted to divide the
bequest in halves, to wit, per stirpes, he would have said: "I
give $250 to the heirs of George Knauer." "I give $250 to
the heirs of William Knauer." But, on the contrary,, he in-
tended to give and did give $500 to the heirs of both taken
together as one class.
Section 1350, Civil Code, which provides that "a devise or
legacy given to more than one person vests in them as owners
in common," nullifies the proposition that it was intended
32 Coffey's Probate Decisions, Vol. 4.
that the heirs of George Knauer and "William Knauer should
take per stirpes.
The law says they shall take as owners in common ; in other
words, they shall take equally. So that, if William Knauer
had died leaving two children, they would have taken per
capita with the seven children of George Knauer.
It follows that, there being no bequest per stirpes, no part
of the bequest can lapse as long as there are any persons in
esse answering to the designation of heirs of George Knauer.
Unless the clear intention of the testator makes it neces-
sary, a construction resulting in a lapse should be avoided.
The cases cited and quoted by Mr. Lermen bear out the
view here expressed, that the word "heirs" in this case must
be construed to mean "children," and not heirs in a technical
sense. The maxim, "Nemo est haeres viventis," does not
apply to this case.
The ease, furthermore, differs from the one discussed in
Estate of Pfuelb, 48 Cal. 643, where a legatee died during the
testator's lifetime, and the legacy, being claimed by a step-
son, not a relation, of the deceased legatee, was held to have
lapsed. The legatees in the case at bar are claiming in their
own right, not as successors to another's right.
But the court disagrees, for the reasons stated, with Mr.
Lermen in his contention that the legacy should be divided
so as to give $250 to the heirs of William and $250 to the heirs
of George Knauer ; and, in the view which the court has taken
on this point, it is clearly supported by the "Answer" to the
question propounded in the "San Francisco Law Journal" of
Saturday, June 13, 1896, prepared for publication by author-
ity of the court, which answer refuses assent to the notion
that persons naturally forming and designated as a group by
reason of their relationship should, for the same reason, be
treated as units in the division of a legacy given to them. The
court is satisfied with the conclusion there reached, that, un-
der the law of California, ail the persons entitled to take as
legatees under the provision of the will referring to them be-
came tenants in common, without any regard to the closeness
or remoteness of the relationship existing between some of
them. The same reasoning applied to the case at bar will
result in a per capita division of the $500 between all the
Estate op Foster. 33
*
persons intended to be embraced in the description of "heirs
of George and William Knauer, brothers of my late wife";
and so the court determines and decides the question pre-
sented for construction of the eighth and tenth clauses of the
will;
The Words "Heirs," "Issue," and "Children," when found in wills,
may be construed interchangeably, where necessary to effectuate the
intention of the testator: Strawbridge v. Strawbridge, 220 III. 61,
110 Am. St. Rep. 226, 77 N. E. 78; Griswold v. Hicks, 132 111. 494,
22 Am. St. Eep. 549, 24 N. E. 63; Smith v. Smith, 130 Ga. 532, 124
Am. St. Kep. 177, 61 S. E. 114,
In the Matter op the Estate op SA^IUEL FOSTER,
Deceased.
[No. 28,858; decided March 9, 1909.]
Community Property — Books of Account as Evidence. — Books of
account kept by a man and by a corporation of which he was the
controlling' owner are admissible after his death to show that real
estate acquired by him during coverture came from the proceeds or
income of property owned by him before marriage.
Community Property — Mingling with Separate Property. — Separate
property does not lose its quality as such by passing through various
mutations, so long as it can be identified, and profits therefrom take
on the same character; but when profits accrue from separate funds
so commingled with the common property that their identity is lost,
such profits are community property, if it does not appear what
proportion thereof pertains to the separate and what to the common
property.
Community Property. — Real Estate Acquired by Purchase by a
Married Man is prima facie community property, and the burden
rests upon one who asserts the contrary to establish his contention by
clear and certain proof.
Community Property — Declaration of Testator. — The character of
an estate as separate or community property is not affected by any
declaration of the testator, but is determined by the mode in which
the property was acquired.
Probate Homestead — Separate or Community Property. — On the
application of the widow in. this case for a probate homestead, it
was held that the property of the decedent was his separate estate,
and therefore that a homestead could be awarded her for life only.
Prob. Dec, Vol. IV— 3
3i Coffey's Probate Decisions, Vol. 4.
Application by widow for an absolute homestead.
Heller & Powers, for Mary A. Foster, widow.
Joseph Hutchinson, for Lyman D. Foster, executor, son of
decedent.
COFFEY, J. On January 15, 1904, Mary A. Foster filed
a petition in which she recited that Samuel Foster died in San
Francisco, of which place he was a resident, on the fifteenth
day of June, 1903, leaving therein real and personal estate;
that he left him surviving herself, his widow, over fifty-five
years of age, and a son, Lyman D. Foster, aged thirty-one
years; he also left a will which is hereunder transcribed,
which was duly admitted to probate on July 9, 1903, and
letters testamentary thereupon issued the same day to Lyman
D. Foster, executor named therein. On December 21, 1903,
an inventory and appraisement was returned and filed, in
which was set down the property herein sought to be set
aside, 1760 Washington street. This property, consisting of
a lot and dwelling-house thereon, was purchased on or about
February 5, 1890. and was then subject to a mortgage which
was satisfied in 1892, leaving the premises now unencumbered,
and of an appraised and admitted present value of $10,000;
the remainder of the estate being estimated at about $150,000,
net. The property is suitable for a homestead, and from
the time of its purchase was used as the residence of decedent
and his family, although there never was any declaration of
homestead filed thereon bj^ either spouse. Decedent and the
applicant intermarried September 9, 1882, over twenty years
prior to his decease. At the time of his death he was about
sixty-one years of age, and about forty at the date of his
second marriage. It would appear that she was then a widow,
having a son, to whom he alludes in the will, and he also a
son, the executor and opponent here. The applicant claims
that the premises should be set aside to her in fee as a home-
stead, as a part of the community property, having been ac-
quired during coverture, and the executor opposes her appli-
cation on the ground that having been purchased with funds
derived from his separate estate the widow is not entitled to
more than a homestead for a limited period, under section
Estate of Foster, 35
1468 of the Code of Civil Procedure. So it would seem that
the only question involved in this controversy is a simple one :
Is the property described in the application community or
separate? In the inventory returned by the executor, the
appraisers have subscribed to the statement therein, emanat-
ing presumably from the executor, that, among other items
enumerated, item 3, the Washington street parcel, is ''the
separate property of decedent, being property owned by him
prior to September 9, 1882, with the rents, issues and profits
thereof as invested to June 15, 1903," the date of his death.
One of these appraisers and, judging from the intrinsic evi-
dence and the circumstances of the appraisement, the main
factor in making it up, if not the only efficient one, was
Morris Marcus, who had been with the house of S. Foster
& Co. since 1881, and is at present interested in the business
and associated therein with opponent. Mr. Marcus is an
important witness, from the fact of special familiarity with
the affairs of the concern for a period antedating the marriage
of decedent to the present, say about twenty-four years. As
a bookkeeper and accountant he has had thirty years' train-
ing, being now forty-five years of age ; so that his com-
petency in this respect is abundantly established, if it were
otherwise open to question. Another adept accountant called
for opponent is Nathan A. Dodge, but he is simply an expert,
while Marcus is not only that, but much more, since he is
practically acquainted with the premises. There is no chal-
lenge to the correctness of the books kept by Samuel Foster,
himself an accurate man of affairs, who saw that his accounts
were adjusted in a business-like manner. The dependence of
the opponent is upon the completeness and accuracy of these
books and accounts, as he contends that the payments for the
Washington street property were made out of funds owned
by Samuel Foster at the date of his marriage with Mary A.
Foster, or out of the rents, issues and profits thereof, and is,
therefore, separate estate; and that this is clearly traceable
through his books of account which show the history and
origin and character of every species of his property and the
nature of its mutations. It is claimed that each of the pay-
ments came direct from the rents, issues and profits of prop-
erty owned by Samuel Foster before his marriage, and that
36 Coffey's Probate Decisions, Vol. 4.
this is mathematically certain from an examination of his
books. At the date of his marriage, September 9, 1882, he
owned an interest in the steamer "Belvedere"; real estate in
Oakland; an interest in his father's estate in Massachusetts;
a paid-up life insurance policy; and the entire grocery busi-
ness of S. Foster & Co. In his will decedent makes this
statement: "I hereby declare the amount of my separate
property to be thirty-six thousand dollars." The will is
dated April 25, 1902, and the codicils April 20, 1903, and
June 6, 1903, respectively. Whether this declaration meant
his worth at the date of his marriage, or at the dates of the
will and codicil, it is evident that at the former time his
wealth might be estimated at between thirty and thirty-six
thousand, Marcus placing the value of the aggregate of the
items at $33,576.98 and Dodge at $30,842.39. The main item
was the grocery business, which was worth about $21,000, of
which he was the sole owner, and which he conducted alone
until January 1, 1888, when it was incorporated at $50,000,
he taking $40,000 of the capital stock, and associating with
him A. J. Foster, Morris Marcus and Fred H. Hersey, to
whom he loaned part of the price of their shares; the first
named took $5,000, or fifty shares, and the two others $2,500,
or twenty-five shares each; he became president and was al-
lowed a salary at the rate of $3,600 a year, which was paid
for four years, 1888, 1889, 1890 and 1891. It may here be
remarked that at the time of their marriage, Mary A. Foster
had about $4,000 in her own right, which she loaned to her
husband, and which he repaid in 1895, meantime paying in-
terest thereon. As to his method of doing business, he gave
assiduous attention to all his affairs, bestowing great energy
upon their management, and devoting all of his talents to
their development. He was a large and constant borrower
from relatives and other persons, and this practice continued
after as before the incorporation. These loans were invested
in the business, and aided in its enlargement, for it grew
fourfold ; but all his other investments were fruitless or losing
ventures, during the period under consideration. Up to the
time of the incorporation the profits all went to Samuel Fos-
ter ; after that event he received only his proportion, although
virtually, it may be said, he was the whole business all the
Estate of Foster, 37
while. He used the corporation, S. Foster & Co., as his
bankers and kept therewith an open, current account. Mon-
eys, as he received them, were paid to the corporation, he
receiving credit for the same, and then the concern would
deposit the amount with Tallant and Company's bank; he
ke^t no private bank account. The account of Samuel Foster
with the corporation of S. Foster & Co. is a contemporaneous
record, kept by and assented to by the parties themselves, and,
opponent contends, it is binding upon all their representa-
tives, including the widow of decedent and his son, the exec-
utor. It is a piece of evidence of the highest character; and
in it, opponent insists, the history of the payments, on account
of this piece of property, is unmistakably shown. It affords
clear and convincing evidence proving the property described
to be the separate estate of decedent, and it rebuts the pre-
sumption that because it was purchased during coverture it
belongs to the community. In following separate property
through its various mutations, the principles should be applied
that what is shown to be separate remains such, and that the
profits thereof acquire the same character; but where profits
are earned by the commingling of common and separate funds
so as to destroy their identity, it not appearing what propor-
tion of profits pertained to each, such profits must be con-
sidered community. The theory of the applicant is that this
case comes under the latter clause of this rule of law, because
it is deducible from the books that all moneys from all sources,
whether borrowed by decedent from others or deposited with
him, both before and after incorporation, went into the busi-
ness for business purposes, were deposited in the bank with
which the house was dealing as depositor, and were used by
the concern in the ordinary and general conduct of its affairs.
The deductions of applicant from the evidence are that what-
ever Foster owned at the time of his death came as much
from the profits of money that he borrowed as from the profits
of the property that he had at the time of his marriage, for
there is no proof of the product of either separately; no
separate accounts were kept ; all money was treated alike and
used as a common fund out of which no one could say what
particular part went to purchase any specified piece of prop-
erty or to engage in any specific investment. It was not, and
38 Coffey's Probate Decisions, Vol. 4.
could not be, earmarked. Every dollar was intermingled with
every other dollar, and there was such a confusion and com-
mingling as to warrant the court in holding that it was all
community, and that all separate property had been drawn
to it by reason of its being the paramount estate. Applicant
contends, in brief,^that it is plain, from reading the testimony,
that Mr. Foster's original separate property lost its character
as such ; that moneys from every source went into the Tallant
bank, and that it is utterly impossible to trace whether the
Washington street property was bought by money derived
from his salary, or from his original grocery business, or from
borrowed money. It was not acquired by gift, devise or
descent, but by purchase, and is, therefore, prima facie com-
munity property. The burden rests upon opponent to estab-
lish the contrary by clear and certain proof.
So far as this particular parcel of property'- goes, it having
been acquired by purchase during coverture, it may be as-
sumed that the rule of burden applies, but opponent claims
that it is established by clear and certain proof that the pur-
chase money for the land and dwelling came from the pro-
ceeds of the grocery business owned by decedent at the time
of his marriage and from no other source, and the reason for
this claim is found in the books, which show that it was only
that business that afforded him any profits to employ in buy-
ing the property in question, the net result of all his other
investments, during this period, showing a loss, so that if he
had confined himself strictly and exclusively to the business
which he owned at the time of his marriage and avoided
foreign transactions down to the date indicated he would have
been a gainer; as it was, however, the grocery business tided
over his losses on outside investments and, in addition, left
him with a large margin of profit. In answer to applicant's
claim that the moneys borrowed by the decedent and his salary
constituted community property, opponent declares that the
books demonstrate that there never was at any time during
the years at issue, and certainly not at the dates of the pay-
ments on the Washington street house, any balance of earn-
ings or profits of borrowed money which could be applied to
that purpose. Dodge, the expert, testified that there was a
deficit. After the marriage of decedent to applicant, his
Estate of Foster. 39
domestic expenses increased to such an extent as to absorb all
income from compensation or profits growing out of borrowed
money. This is the contention of opponent contested by the
applicant, who answers that the fact remains, everything said
and considered, that from the marriage of decedent to Mary
A. Foster on September 9, 1882, to the date of incorporation
of S. Foster & Co., November 15, 1888, Samuel Foster con-
ducted his grocery business with a stock of merchandise
which was being turned over from day to day and a vast
amount of money borrowed not only from the bank, but from
many of his relatives. This was the capital with Avhich he
operated; and its increase was by the use of the merchandise
and the borrowed money; and there is no way in the books
of discriminating the profits of one from the other, and all
attempts made to trace back property to the original grocery
business are merely a tracing to a conglomerate mass which
was composed of the resultant obtained by the manipulation
of merchandise and borrowed money. From year to year the
conglomerate became more and more intermingled and the
identity of each was merged in the other inextricably. This
would seem to be a condition of confusion worse confounded ;
but it is not borne out by the books kept by decedent and the
corporation of which he was the controlling owner. We are
bound by the books, and they seem to show that this particu-
lar parcel of property came from what was owned by the
decedent at the time of his marriage. Whatever weight may
attach to the testamentary declaration of the testator in regard
to his separate property, or whatever may be the motive of
Lyman D. Foster in opposing this application, the result is
the same. Our supreme court has laid down the doctrine that
the character of the estate is not to be altered or affected by
any declaration of the testator, but it is to be determined by
the mode in which the property was acquired; but, in the
case at bar, it does not aid the applicant, even if it were ad-
missible, for it is an expression in the present tense and does
not necessarily relate back to the time of his second marriage.
Be that as it may, however, this declaration does not seem to
the court to be relevant to the present issue.
In construing the accounts, the court accepts the rule of
the codes which is in almost universal use, and there seems to
40 Coffey's Probate Decisipns, Vol. 4.
be no sound reason why it should not apply in this case. In
reference to the testimony of the experts Marcus and Dodge,
their evidence, taken as a whole, may be reconciled, and the
court does not discover any substantial conflict, although there
may be discrepancies in minor details. Mr. Reynolds, the
adverse expert, is an accomplished accountant, but the con-
clusion of the court is at variance with his opinions as to the
interpretation or construction of the contents of the books.
The court has given due weight to the arguments of coun-
sel, and has closely scanned the authorities and examined the
evidence with care, having in mind the remarks made by Mr.
Justice McFarland in Estate of Cudworth, 133 Cal. 469, 65
Pac. 1041, in which he laments that he had to find against
the widow.
In the Matter of Bauer, 79 Cal. 309, 21 Pac. 759, the su-
preme court adverted to the action of this trial court in
indulging the presumption that the homestead was purchased
with community funds as against all the evidence adduced to
rebut it, and the appellate tribunal held that while it was
difficult to determine what became of all the separate property
of the deceased between the date of his marriage and the pur-
chase of the homestead, and to trace his separate funds
through the community funds, which were commingled so as
to destroy their identity at the two banks where he had ac-
counts, it was sufficiently clear, and the inference might fairly
be deduced, that at the time the homestead was purchased
decedent's interest in the business he was then engaged in was
his separate property. The language of the Bauer estate is in-
structive in and applicable to the case at bar.
The disposition of the trial court to foster the presumption
in favor of the widow is praiseworthy, but that it maj' be
carried too far is illustrated in the estates of Bauer and Cud-
worth, the latter of which especially deserved a better fate
than attended it in the court of last resort. The widow here,
the wife for twentj^-one years of Samuel Foster, might be
likened to the widow in that matter, whose case, said Justice
McFarland, was one of peculiar hardship; but all this court
ean do for her on this application is to award her a home-
stead for life.
Estate op Foster. 41
the will and codicil.
"I, Samuel Foster, a resident of the City and County of
San Francisco, State of California, being of sound and dis-
posing mind and memory, do make, publish and declare this
to be my last will and testament.
"First: I give, devise and bequeath to my wife, Mary A,
Foster, the one-half of my community property, and the one-
third of my separate property to which she would be entitled
by law, if I died intestate.
''The other one-half of my community propertj'', and the
other two-thirds of my separate property, I give, devise and
bequeath as follows:
"To my son, Lyman D. Foster, Ten Thousand Dollars.
"To my sister, Suviah L. Elder, Five Thousand Dollars.
"To my sister, Rachel A. Jacques, Five Thousand Dollars.
"To Christ's Mission, organized in New York City May
1887, Two Thousand Dollars to be applied to the uses and
purposes of said Mission. All the balance to my son, Lyman
D. Foster.
"I purposely omit the name of my step-son in this will.
"I hereby declare the amount of my separate property to
be Thirty Six Thousand Dollars.
"I hereby appoint my son, Lyman D. Foster, executor of
this my last Will and Testament, and he shall not be required
to give any bonds, as such executor, and shall have full power
to sell any or all of my estate, real or personal, at public or
private sale with or without notice, without the order of any
Court.
"Written and dated with mj' own hand this 25th day of
April, 1902, at the City of San Francisco, State of California.
"SAMUEL FOSTER."
CODICIL.
"April 20th, 1903.
"My sister Suviah L. Elder, having died since this will
was written the sum of Five Thousand Dollars bequeathed to
her shall go to my niece. Mary L. Elder.
"My sister Rachel A. Jacques, having died since this will
was written the sum of Five Thousand Dollars, bequeathed
to her shall go to my niece, Martha F. Jacques.
"SAMUEL FOSTER."
42 Coffey's Probate Decisions, Vol. 4.
what is community peoperty.
lutroductory Statements.
As to Theory of Community System. — The doctrine of community
property, whatever may have been its origin, has, so far as it has
been adopted in the United States, been borrowed directly from the
French and Spanish ^aw. It prevails, with more or less variation, in
Louisiana, Texas, New Mexico, California and several other of the
western and southwestern commonwealths. The community system
recognizes a relation between husband and wife, respecting their prop-
erty, comparable to a partnership. Its avowed purpose is to place
husband and wife on an equal footing in regard to their property
rights, which the common law confessedly does not do: Meyer v.
Kinzer, 12 Cal. 247, 73 Am. Dec. 538; Saul v. His Crelitors, 5 Mart.,
N. S., 5G9, 16 Am. Dec. 212; Burr v. Wilson, 18 Tex. 367; Wilkinson's
Heirs v. Wilkinson, 20 Tex. 237; Hall v. Hall, 41 Wash. 186, 116 Am. St.
Eep. 1016, 83 Pac. 108. This laudable purpose, however, it has, as en-
acted and interpreted in most of the states, failed to accomplish. Thus
in California the husband has practically absolute dominion over the
property of the community; he can sell, mortgage, or otherwise dispose
of it at pleasure, except that he may not give it away without the con-
sent of his wife, nor dispose of more than one-half of it by will. Upon
her death he takes the entire common property without administration.
This leaves the wife nothing more than a mere expectancy in the
common property. During the lifetime of the husband she has no
protection against his disposing of or squandering the entire com-
munity estate; and upon his death she takes only one-half of the
property of the community, and that as his heir, subject to the inher-
itance tax: Cal. Civ. Code, sees. 1C2-164, 1401, 1402; Spreckels v.
Spreckels, 116 Cal. 339, 58 Am. St. Rep. 170, 48 Pac. 228, 36 L. R. A.
497; Cunha v. Hughes, 122 Cal. Ill, 68 Am. St. Rep. 27, 54 Pac. 536;
Estate of Lux, 149 Cal. 200, 85 Pac. 147; Estate of Moffitt, 153 Cal.
359, 95 Pac. 653, 1025; 1 Ross on Probate Law and Practice, 152-158.
Manifestly the community law as thus interpreted recognizes no
equality in property rights between husband and wife, and requires
substantial alteration by the legislature and a more liberal inter-
pretation than it has yet received from the courts before it can
fulfill the promise which its name implies — a real marital community
in property.
As to Tests for Determining Wliat is Common Property. — The law
declares what is community property by first stating what is separate
property and then declaring that all other property belongs to the
community. And, with slight modifications in some jurisdictions
which presently will be considered, it may be said that property
owned by either spouse at the time of the marriage, together with
the rents, profits, income and increase therefrom after marriage, is
and remains his or her separate estate. Moreover, all property which
Estate of Foster. 43
comes to either spouse during coverture by gift, devise, bequest, or
succession is his or her separate estate. All other property, eominrf
to either or both husband or wife during marriage, becomes their
common estate. The authorities on these propositions will be cited
in their proper places in subsequent paragraphs. "During the mar-
riage relation, the community of the spouses is, and, in the nature of
things, must be, the superior and controlling entity. Its interests are
paramount, and whatever tends to reduce its position must be excep-
tional": Yesler v. Hochstettler, 4 Wash. 349, 30 Pac. 398.
As to Intermingling of Separate and Community Property. — Where
the separate property or funds of either spouse is so intermingled
with the community that its identity is lost, the entire mass ordinar-
ily becomes community property, since the latter is the paramount
interest; but if the separate property can bo traced and segregated
from the community with which it has been commingled, it does not
lose its character as separate estate; and when the community is
inconsiderable in amount as compared with the separate property con-
fused and blended with it, it does not draw the separate property to
it: Ecid V. Eeid, 112 Cal. 274, 44 Pac. 564; In re Cudworth's Estate,
133 Cal. 4C2, 6.5 Pac. 1041; Eobb v. Eobb (Tex. Civ. App.), 41 S. W.
92; Eeid v. Eochereau, Fed. Cas. No. 11,669, 2 Woods, 151. On the
other hand, community property can be allowed by the husband to
be so mingled with the profits of his wife's separate estate as to
indicate an intention that it shall be her separate property: Diefen-
dorff V. Hopkins, 95 Cal. 343, 28 Pac. 265, 30 Pac. 549. Where she
deposits her money with him, and he mingles it with other moneys
which he holds, and then at her request purchases land which he pays
for out of the fund in his hands and has it conveyed to her, the land
becomes her separate estate: Moore v. Jones, 63 Cal. 12.
Property Acquired Before Marriage,
In General. — The first exception to the general rule in favor of the
community is, that property acquired by a man or woman before mar-
riage remains his or her separate property after marriage: Cal. Civ.
Code, sees. 162, 163; Selover v. American Eussian Commercial Co., 7
Cal. 266; Spalding v.Godard, 15 La. Ann. 277; Imhof v. Imhof, 45 La.
Ann. 706, 13 South. 90; Cartwright v. Cartwright, 18 Tex. 626; Akiu
v. Jefferson, 65 Tex. 137; Welder v. Lambert, 91 Tex. 510, 44 S. W.
281; Hillen v. Williams, 25 Tex. Civ. App. 268, 60 S. W. 997. The in-
crease, income, profits and rents from such property during coverture
are, in most of the states, also separate property: See post, pp. 54-57.
And property acquired by the exchange of separate property, or by
purchase with funds belonging to the separate estate of one of the
spouses, continues to be separate estate: See post, p. 47.
In Case Title is not Consummated Until After Marriage. — Where
an unmarried person acquires the equitable title to property, it does
not lose its character as his or her separate estate by the fact that
the legal title is not acquired or the conveyance consummated until
44 Coffey's Probate Decisions, Vol. 4.
after marriage: Lawson v. Ripley, 17 La. 238; Barbet v. Langlois,
5 La. Ann. 212; Succession of Wade, 21 La. Ann. 343; Medlenka v.
Downing, 59 Tex. 32. This rule has been applied in a number of
cases where the acquisition of property was from the United States
government: See post, pp. 58-60. Land conveyed to a woman be-
fore her marriage is her separate property, although a quitclaim deed
thereof reciting a mpney consideration is executed to her after her
marriage by the same grantor. Such deed does not affect the title
previously conveyed nor change the character of the property from
separate to community: Maguire v. De Fremery, 76 Cal. 401, 18
Pac. 410. But where a man, before his marriage, was in possession
without right of a tract of land, and after marriage he conveyed a
part thereof to the rightful owners, to whom he gave up possession,
and they, induced thereby, conveyed a porti m of the land to him,
the property so acquired was community: Pancoast v. Pancoast, 57
Cal. 320. A naked right of partnership possession in land before
marriage is not such a right as to give one of the partners an equity
to which the subsequently acquired title to a part of the land could
attach, as his separate estate, after marriage: Estate of Boody, 113
Cal. 682, 45 Pac. 858. In this case the court in the course of its
opinion said: "The doctrine of Harris v. Harris, 71 Cal. 314, 12 Pac.
274, and In re Lamb, 95 Cal. 397, 30 Pac. 568, has no application ta
the circumstances of this case. In both those cases legal steps had
been initiated by the filing of application, prior to the marriage, to
procure title to the land from the government. This fact was held
io create an equity to which the legal title, when acquired, would
telate back, and constitute the land separate estate, although the title
was not actually acquired until after marriage. Here no such fact
exists. Nothing but the naked right of possession, and that a joint
one in the partnership of Boody & Heath, existed in any of the lands
here involved. This certainly was not such a right as to give one
of the partners an equity to which the subsequently acquired title
to a portion of the land so held could attach." Where after marriage
a man purchased with the common funds and took a deed of land
which he had occupied without title before marriage, it was held in
Johnson v. Johnson, 11 Cal. 200, 70 Am. Dec. 774, that the property
became community.
Property Held by Adverse Possession in Texas without paper
title is not "acquired" until the limitation period has run; and, in.
case the wife of the occupant dies before that time, there is no com-
munity in the land: Bishop v. Lusk, 8 Tex. Civ. App. 30, 27 S. W.
306; Gali'ord v. Foster, 36 Tex. Civ. App. 56, 81 S. W. 63.
Property Acquired After Marriage.
By Efforts of Either or Both Spouses. — The fruits of the industry of
husband and wife fall into the community. Indeed, it is the basic prin-
ciple of the community system that whatever is acquired through the
efforts of the husband and wife shall be their common property. All
Estate of Foster. 45
property acquired during marriage by the efforts of the wife alone or
of the husband alone, or by their joint efforts, is community and not
separate property, unless it has come by gift, devise, bequest or succes-
sion, or unless it has sprung from the rents, profits, or increase of the
separate property of one of the spouses: Fennell v. Drinkhouse, 131
Cal. 447, 82 Am. St. Rep. 3G1, 63 Pac. 734; Otto v. Long, 144 Cal. 144,
77 Pac. 885; Succession of Manning, 107 La. 456, 31 South. 862; Picotte
V. Cooley, 10 Mo. 312; White v. Lynch, 26 Tex. 195; Edwards v.
Brown, 68 Tex. 329, 4 S. W. 380, 5 S. W. 87; Abbott v. Vv^etherby, 6
Wash. 507, 36 Am. St. Eep. 176, 33 Pac. 1070. Said the supreme
court of Nevada in Lake v. Lake, 18 Nev. 361, 4 Pac. 711, 7 Pac.
774: "We are satisfied it is not necessary to prove that property is,
in fact, the product of the joint efforts of the husband and wife in
order that it may be declared community estate. If it is acquired
after marriage by the efforts of the husband alone, but not by gift,
devise or descent, or by exchange of his individual property, or from
the rents, issues or profits of his separate estate, it belongs to the
community. Such property is common, although the wife neither
lifts a finger nor advances an idea in aid of her husband. She may
be a burden and a detriment in every way, or she may absent herself
from the scene of his labors, know nothing of his business, and do
nothing for him; still it is common. On the other hand, property
acquired by either spouse in any one of the ways mentioned in the
statute — that is to say, by gift, devise or descent, or by exchange of
individual property, or coming from the rents, issues or profits of
separate property — belongs to him or her, as the case may be, and
the other has no more right to share it than a total stranger."
By Conveyance to Husband or Wife. — Property acquired by pur-
chase during coverture is ordinarily presumed to vest in the com-
munity: Meyer v. Kinzer, 12 Cal. 247, 73 Am. Dec. 538; Scott v.
Ward, 13 Cal. 458; Fisher v. Gordy, 2 La. Ann. 762; Johns v. Race,
18 La. Ann. 105; Succession of Planchet, 29 La. Ann. 520; Parker v.
Chance, 11 Tex. 513; Smith v. Strahan, 16 Tex. 314, 67 Am. Dec.
622; Cox v. Miller, 54 Tex. 16. This is true regardless of whether
the conveyance is made to the wife or to the husband. When a con-
veyance is ma^e to her, it is presumed that the consideration is paid
from the community and that the property becomes a part of the
common estate: Hart v. Robertson, 21 Cal. 346; Schuyler v. Brough-
ton, 70 Cal. 282, 11 Pac. 719; Gwynn v. Dierssen, 101 Cal. 563, 36
Pac. 103; Andrew v. Bradley, 10 La. Ann. 606; Forbes v. Forbes, 11
La. Ann. 326; State v. Gaffery, 12 La. Ann. 265; Clark v. Norwood,
12 La. Ann. 598; Shaw v. Hill, 20 La. Ann. 531, 96 Am. Dec. 420;
Pope V. Foster, 24 La. Ann. 521; Richardson v. Chevalley, 26 La.
Ann. 551; Burns v. Thompson, 39 La. Ann. 377, 1 South. 913; Cooke
V. Bremond, 27 Tex. 457, 86 Am. Dec. 626; Zorn v. Tarver, 45 Tex.
519; Augustine v. State (Tex. Cr. App.), 23 S. W. 794. When a
deed is made to a married woman, the presumption that the property
is community is not rebutted by the fact that the consideration named
46 Coffey's Probate Decisions, Vol. 4.
is nominal: Wedel v. Herman, 59 Cal. 507; Swink v. League, 6 Tex.
Civ. App. 309, 25 S. W. 807. And when a conveyance is made to her
for a money consideration, as well as love and affection, the estate
is presumed to belong to the community: Tustin v. Faught, 23 Cal.
237. When a conveyance is made to a married man, the presumption
is also indulged that the property becomes community and not his
separate estate: Rowley v. Rowley, 19 La. 557; Succession of Fortin,
10 La. Ann. 739; Breaux v. Carmouche, 15 La. Ann. 588; Hanover
Fire Ins. Co. v. Shrader, 11 Tex. Civ. App. 255, 31 S. W. 1100, 32
S. W. 344; Short v. Short, 12 Tex. Civ. App. 86, 33 S. W. 682. This
is true where land is conveyed to a husband on the consideration
that he support the grantor for life: Byars v. Byars, 11 Tex. Civ.
App. 565, 32 S. W. 925; but in case of land conveyed to him by his
parents without consideration to enable him to qualify on his father's
bond, his wife acquires no community interest: Crenshaw v, Harris,
16 Tex. Civ. App. 263, 41 S. W, 391.
These presumptions, as will be more fully considered in a subse-
quent part of this note, are not conclusive and may be overthrown
by competent proof; they are indulged only in the absence of evi-
dence to the contrary. And in California the rule of presumption in
the case of the wife has been modified, as will be hereafter pointed
out.
By Exchange or Purchase with Common Property. — Property pur-
chased with community funds, or procured in exchange for common
property, of course belongs to the community; and the fact that it is
taken in the name of one only of the spouses raises no presumption
that it is his or her separate estate: Sharp v. Zeller, 110 La. 61, 34
South. 129; Presidio Min. Co. v. Bullis, 68 Tex. 581, 4 S. W. 860;
Schwartzman v. Cabell (Tex. Civ. App.), 49 S. W. 113. That property
is taken in the name of the wife, and is paid from her personal earn-
ings after marriage, does not take it out of the community: Knight
V. Kaufman, 105 La. 35, 29 South. 711. Land acquired during the
existence of a second marriage, through the exchange of community
property of the first marriage, does not become community property
of the second marriage: Haring v. Shelton (Tex. Civ. App.), 114
S. W. 389.
By Purchase with Community and Separate Funds. — Since prop-
erty purchased with separate funds is separate property, and prop-
erty purchased with community funds is common property, it follows
that property purchased in part with community and in part with
separate funds is community property to the extent it is paid for
from common funds, and separate property to the extent it is paid
for from separate funds: Jackson ▼. Torrence, 83 Cal. 521, 23 Pac.
695; Love v. Robertson, 7 Tex. 6, 56 Am. Dec. 41; Braden v. Gose,
57 Tex. 37; Parker v. Coop, 60 Tex. Ill; Cleveland v. Cole, 65 Tex.
402; Smith v. Bailey, 66 Tex. 553, 1 S. W. 627; Conner v. Hawkins,
66 Tex. 639, 2 S. W. 520; Letot v. Peacock (Tex. Civ. App.), 94
Estate of Foster. 47
S. W. 1121; Clardy v. Wilson, 24 Tex. Civ. App. 196, 58 S. W. 52;
Heintz v. Brown, 46 Wash. 387, 123 Am. St. Eep. 937, 90 Pac. 211.
But in Louisiana it is held that land purchased in the name of the
wife, and partly paid for with her paraphernal funds under her
administration, and partly with community funds, falls into the
community: Burns v. Thompson, 39 La. Ann. 377, 1 South. 913;
although it is said that she becomes a creditor of the community for
the amount she invests: Eeid v. Rochereau, 2 Woods, 151, Fed. Cas.
No. 11,669.
By Exchange or Purchase with Separate Property. — ^Property ac-
quired in exchange for the separate property of the husband or the
wife, or property acquired by purchase from the separate funds of
either of them, becomes the separate property of the spouse whose
separate money or separate property was used to acquire the same.
The change or transmutation does not destroy the separate character
of the property so long as it can be identified. This rule is applied
to an exchange of lands in Sanchez v. Grace M. E. Church, 114 Cal.
295, 46 Pac. 2; Newsom v, Adams, 3 La. 231; and to a purchase of
property by a wife in Oaks v. Oaks, 94 Cal. 66, 29 Pac. 330; Stokes
V. Bailey, 62 Tex. 299; Hall v. Levy, 31 Tex. Civ. App. 360, 72 S. W.
263; Sparks v. Taylor (Tex. Civ. App.), 87 S. W. 740; Schneider v.
Fowler, 1 White & W. Civ. Cas. Ct. App. (Tex.), sec. 856; Ratto v.
Holland, 2 Wills. Civ. Cas. Ct. App. (Tex.), sec. 469; Freeburger v.
Gazzam, 5 Wash. 772, 32 Pac. 732; Webster v. Thorndyke, 11 Wash.
390, 39 Pac. 677; Hester v. Stine, 46 Wash. 469, 90 Pac. 594; and to
a purchase of property by a married man in Estate of Higgins, 65
Cal. 407, 4 Pac. 389; Estate of Boody, 119 Cal. 402, 51 Pac. 634;
In re Burrow's Estate, 136 Cal. 113, 68 Pac. 488; Love v. Robertson,
7 Tex. 6, 56 Am. Dec. 41.
A somewhat different rule prevails in Louisiana, for it seems
(although some of the early cases appear to lend themselves to a
different interpretation: Stroud v. Humble, 2 La. Ann. 930; Suc-
cession of Vanrensellaer, 6 La. Ann. 803; Metcalf v. Clark, 8 La.
Ann. 286; Ruys v. Babin, 14 La. Ann. 95; Fleytus v. Fleytus, 15
La. Ann. 62; Succession of Pinard v. Holton, 30 La. Ann. 167; Miller
V. Handy, 33 La. Ann. 160) that property purchased in that state
with separate funds ordinarily falls into the community (Comeau
V. Fontenot, 19 La. 406; Tally v. Heffner, 29 La. Ann. 583; Drumm
V. Kleinman, 31 La. Ann. 124; Durham v. Williams, 32 La. Ann. 162),
but a charge will exist in favor of the separate estate against the
community for the amount of the purchase: Joffrion v. Bordelon, 14
La. Ann. 618; Succession of Merrick, 35 La. Ann. 296; Moore v.
Stancel, 36 La. Ann. 819. Property in that state bought by the
husband and paid for out of his own funds, under circumstances
showing a clear intention to buy for his separate account, is regarded
as exclusively his: Tanner v. Robert, 5 Mart., N. S., 255; Young v.
Young, 5 La. Ann. 611; Bass v. Larche, 7 La. Ann. 104; but it has
48 Coffey's Probate Decisions, Vol. 4,
been held that when he buys property in his name, intending it as
an investment of his separate funds, to be held for his individual
account rather than that of the community, it is essential that some
indication of this intention and of the character of the funds used
should be given in the act of purchase: Succession of Burke, 107
La. 82, 31 South. ^391. A wife or widow in Louisiana, claiming
as her separate estate property purchased during the community,
must prove the paraphernal character of the funds used in the pur-
chase, her separate administration of those funds, and their invest-
ment in the property in question: Stauffer v. Morgan, 39 La. Ann.
632, 2 South. 98; Succession of Lewis, 45 La. Ann. 833, 12 South.
952; Eouyer v. Carroll, 47 La. Ann. 76, 17 South. 292; Succession of
Burke, 107 'La. 82, 31 South. 391. But where a woman who has been
deserted by her husband purchases land with her paraphernal funds,
it is held her separate property, to which she can convey title after
the dissolution of the marriage: Reinach v. Levy, 47 La. Ann. 963,
17 South. 426.
Where a man purchases real estate with the separate funds of his
wife, but takes the conveyance to himself, the land becomes, as be-
tween him and her, the separate property of the wife: Rich v. Tubbs,
41 Cal. 34; Hunt v. Matthews (Tex. Civ. App.), 60 S. W. 674; Oaks
V. West (Tex. Civ. App.), 64 S. W. 1033; but in Louisana, property
purchased by the husband in his own name, and paid for with the
separate funds of his wife, falls into the community, but she retains
a claim against it for the funds so paid: Brown v. Cobb, 10 La.
172; Stokes v. Shackleford, 12 La. 170; Dominguez v. Lee, 17 La.
295; Comeau v. Fontenot, 19 La. 406; Rousse v. Wheeler, 4 Rob. 114;
Wood V. Harrell, 14 La. *Ann. 61; Le Blanc v. Le Blanc, 20 La.
Ann. 206. This Louisiana rule, that if a purchase is made by a man
in his own name, the property, though purchased with his wife's
money, belongs to the community, has been applied to an exchange
of properties: United States v. Bouligny, 42 Fed. 111.
In Texas, where a deed is made to a married woman and deferred
payments are made by her, the property will be her separate estate;
but if a deed is made to the husband, a payment made by her at the
time of the purchase raises a resulting trust in her favor and vests
the equitable title in her: Strnad v. Strnad, 29 Tex. Civ. App. 124,
68 S. W. 69. Where real estate is either paid for by the husband
with the separate funds of his wife, or is purchased for her by him
in order to discharge a debt which he owes her, the property becomes
her separate estate: Mitchell v. Mitchell, 84 Tex. 303, 19 S. W. 477;
Parker v. Fogarty, 4 Tex. Civ. App. 615, 23 S. W. 700.
By Deed to Wife by Husband or at His Direction. — A deed from
a husband to his wife, whether of his own or of community prop-
erty, vests the land in her as her separate estate: Swain v. Duane,
48 Cal. 358; Hamilton v. Hubbard, 134 Cal. 603, 65 Pac. 321, 66 Pac.
«60; Alferitz v. Arrivillaga, 143 Cal, 646, 77 Pac. 657; Jones v.
Estate op Foster. 49
Humphreys, 39 Tex. Civ. App. 644, 88 S. W. 403; Stewart v. Klein-
schmidt (Wash.), 97 Pac. 1105. And where a deed is made by a
third person to a married woman at her husband's request, the prop-
erty is presumed to go to her separate estate: Hamilton v. Hubbard,
134 Cal. 603, 65 Pac. 321, 66 Pac. 860; Alferitz v. Arrivillaga, 143
Cal. 646, 77 Pac. 657. Said the court in the last case: "All presump-
tions are in favor of the conveyances to the wife. They are pre-
sumed to have been made for a consideration paid by the wife, or,
if we concede that the consideration was paid by the husband, it
will be presumed that the property was intended as a gift to the
wife as her separate property." "Where property purchased with
community funds was conveyed to the wife by direction of the hus-
band, and with the intent that it should become her separate property,
it has many times been held that the conveyance operated as a gift
from him to her: Peck v. Bruihmagim, 31 Cal. 440, 89 Am. Dec.
195; Woods v. Whitney, 42 Cal. 358; Higgins v. Higgins, 46 Cal.
259; Bead v. Kahm, 65 Cal. 343, 4 Pac. Ill; Jackson v. Torrence,
83 Cal. 521, 23 Pac. 695. In the case last cited it is said: 'There is
no evidence that he [the husband] was indebted to anyone at the
time, and if he was free from debt he had th? right to give her
[his wife] the property, and could make the gift effectual by simply
directing the conveyance to be made to her.' So, also, it has been
held that when a husband himself conveys property to his wife,
whether it is his separate property or community property, the con-
veyance operates to vest the title in the wife as her separate estate:
Burkett v. Burkett, 78 Cal. 310, 12 Am. St. Kep. 58, 20 Pac. 715, 3
L. E. A. 781; Taylor v. Opperman, 79 Cal. 468, 21 Pac. 869; Oaks v.
Oaks, 94 Cal. 66, 29 Pac. 330; In re Lamb's Estate, 95 Cal. 397, 30
Pac. 568."
By Intermingling Separate and Community Funds. — Where separate
property has, by investment, or otherwise, undergone changes and
mutations, it is indispensable, in order to maintain its separate char-
acter, that the spouse so claiming shall trace and identify it, and
rebut the presumption that property acquired during marriage be-
longs to the community. If the identity of the property has been
lost, then it loses its character as separate estate: Brown v. Lockhart,
12 N. M. 10, 71 Pac. 1086; Glasscock v. Hamilton, 62 Tex. 143;
Smith V. Bailey, 66 Tex. 553, 1 S. W. 627; Hamilton-Brown Shoe
Co. V. Lastinger (Tex. Civ. App.), 26 S. W. 924.
By Mortgage or Credit of Separate Estate. — Money borrowed or
property purchased with it during coverture, by either spouse, or-
dinarily belongs to the community: Northwestern & P. Hypotheek
Bank v. Eauch, 7 Idaho, 152, 61 Pac. 516; Strong v. Eakin, 11 N. M.
107, 66 Pac. 536; Main v. Scholl (Wash.), 57 Pac. 800. It has been
aflEirmed that money borrowed by a married woman to pay taxes
on her separate estate is not her separate property: Grevils v. Smith,
29 Tex. Civ. App. 150, 68 S. W. 291; that money borrowed on a
Prob. Dec, Vol. IV — 4
50 Coffey's Probate Decisions, Vol. 4.
mortgage of her separate estate belongs to the community: Canfield
V. Moore, 16 Tex. Civ. App. 472, 41 S. W. 718; Heintz v. Brown, 46
Wash. 387, 123 Am. St. Eep. 937, 90 Pac. 211; that merchandise
purchased by her with money borrowed on the security of her separate
estate is community property: Heidenheimer v. McKeen, 63 Tex.
229; that property purchased by her on credit belongs to the com-
munity: Epperson v. Jones, 65 Tex. 425; that property purchased by
her to be paid for out of the proceeds of crops grown on her land
(which in that state are common property) belongs to the com-
munity: Cleveland v. Cole, 65 Tex. 402; that land purchased partly in
funds of the community and partly on credit is common property:
Moore v. Moore, 28 Tex. Civ. App. 600, 68 S. W. 59; that where
money procured by a mortgage in which the husband joined, on her
separate estate, is loaned and a note taken therefor, the note and
money are presumed to be community: Somes v. Ainsworth (Tex.
Civ. App.), 67 S. W. 468; that when a wife contributes separate
funds to the original capital stock of a mercantile firm, and the
stock of goods is replenished from time to time, purchases being made
for cash and on credit, the interest in the partnership held in her
name becomes common property: Middlebrook v. Zapp, 73 Tex. 29,
10 S. W. 732. That a conveyance to her in consideration of her
assuming a debt secured by a vendor's lien on the land does not make
the property her separate estate, since she cannot acquire a separate
interest on credit: Harrison v. Mausur-Tibbetts Impl. Co., 16 Tex.
Civ. App. 630, 41 S. W. 842.
By Separate Funds and in Part on Credit. — But in this last case
it is said: "No case has been cited by appellants, nor have we been
able to find any, where the wife can acquire an interest in land
on a credit when no part of the purchase money has been paid
therefor out of her separate means. There are several cases by our
supreme court holding that where the consideration for land pur-
chased is in part paid out of the separate means of the wife, and the
balance to be paid at some future date, the wife acquires an interest
in said land to the extent of the cash paid therefor, and, if the de-
ferred payments are made out of her separate means she acquires
a title to all of said land; but if the deferred payments should be
l^aid out of the property other than that of her separate means, to
that extent it would be community property, subject to the payment
of the husband's debts: Ullman v. Jasper, 70 Tex. 446, 7 S. W.
763; Parker v. Fogarty, 4 Tex. Civ. App. 615, 23 S. W. 700; Schuster
V. Bauman Jewelry Co., 79 Tex. 179, 23 Am. St. Eep. 327, 15 S. W.
259. In the last-named case Judge Gaines, in discussing the rights
of the wife under such circumstances, says: 'A wife's equity in suck
cases arises from the actual investment of her separate money, or the
transfer of her separate property'": Harrison v. Mansur-Tibbetts
Impl. Co., 16 Tex. Civ. App. 630. 41 S. W. 842. The equities of the
wife in such cases are recognized in Goddard v. Eeagan, 8 Tex. Civ.
App. 272, 28 S. W. 352.
Estate of Foster, 51
And in Parker v. Fogarty, 4 Tex. Civ. App. 615, 23 S. W. 700,
•where it is held that when the price of land is paid partly from the
wife's separate funds and partly by notes in which her husband
joins pro forma, with the intention that they are to be paid from her
estate, the deed being made to her but not disclosing that the land
is her separate estate, the land so acquired is not subject to levy
by creditors of the husband with notice, the court said: "In the case
of Ullmann v. Jasper, 70 Tex. 446, 7 S. W. 763, it was held that
where land is purchased for the separate estate of his wife, partly
on time, even though the note of the husband was given for the de-
ferred payment, if it was understood that payment was to be made
out of the separate means of the wife, and the transaction was in
good faith, the land became her separate estate. We might multiply
authorities upon this point, but we deem it unnecessary. The right
of a married woman to buy property for part cash and part notes,
where the payments are to be made out of her separate estate, is
now too firmly established to be called in question": Parker v. Fogarty,
4 Tex. Civ. App. 615, 23 S, W. 700.
Generally, where land is purchased in the name of the wife dur-
ing coverture, partly by borrowed money and partly by her separate
funds, it should be considered community property to the extent to
which borrowed money is used and separate property to the extent
her separate funds are employed: Schuyler v. Broughton, 70 Cal.
282, 11 Pac. 719; Northwestern etc. Bank v. Kauch, 7 Idaho, 152,
61 Pac. 516. But in Washington real estate purchased with money
borrowed by a married woman and secured by a mortgage on her
separate estate, but paid by a sale of part of the land purchased,
has been held community property: Yesler v. Hochstettler, 4 Wash.
349, 30 Pac. 398. In deciding this case the Washington court used
this language: "In Schuyler v. Broughton, 70 Cal. 282, 11 Pac. 719,
it was held that where the purchase price of land conveyed to the
wife was paid by her in part from her separate funds and in part
with money borrowed upon a mortgage of the same land, that pro-
portion of the land paid for with the borrowed money was com-
munity property and the remainder was her separate property. The
opinion by McKee, Judge, implied that if the mortgage had been
upon existing separate property of the wife, the decision might have
been different. But in Heidenheimer v. McKeen, 63 Tex. 229, the
precise point was at issue, and was decided, as we think, according
to the better rule. There merchandise was bought with money bor-
rowed by the wife upon a deed of trust of her real estate, and it
was said: 'Suppose that the debt incurred in securing the loan had
been paid without any resort whatever to the deed of trust, it
would not be insisted, we apprehend, that the money or merchandise
either became the separate property of the wife, simply because her
real estate had been used as a security for the debt. If the money
had been borrowed upon the faith of a deed of trust given upon
the separate property of the husband, certainly neither the money
52 Coffey's Probate Decisions, Vol. 4.
nor the merchandise would for that reason become his separate prop-
erty. In either case the status of the property is to be determined
at the time the loan is secured.' In this case (continued the Wash-
ington court referring to the case before it for decision), the land
purchased with the borrowed money paid for itself, and a large
profit in land and money besides. It was a speculation purely per-
sonal, in which the energy, skill and business prudence of Mrs. Yesler
certainly were greater factors than the credit given by the mortgage
of her land. But these mental forces, whether of husband or wife,
are servants of the community, and their products are its property,
to be shared in equally by the members of the community": Yesler
V. Hochstettler, 4 Wash. 349, 30 Pac. 398. See Heintz v. Brown, 46
Wash. 3S7, 123 Am. St. Eep. 937, 90 Pac. 211.
The case of Schuyler v. Broughton, 70 Cal. 282, 11 Pac. 719, is
commented upon in the subsequent case of Flournoy v. Flournoy, 86
Cal. 286, 21 Am. St. Eep. 29, 24 Pac. 1012, where it is decided that
if a married woman purchases property which is at the time in-
tended to be her separate estate, and her husband loans her money
to make a partial payment, he does not, nor does the community,
acquire an interest in the property proportionate to the money so
loaned by him, nor to any other extent, but he is simply a creditor
of his wife to the amount of the loan; and if a married woman pur-
chases property, paying therefor partly out of her separate estate
and partly with moneys borrowed on the faith of her existing prop-
erty, and secured by a mortgage thereon in which and the note
which it is given to secure the husband also joins, the whole is her
separate estate: See, also, Heintz v. Brown, 46 Wash. 387, 123 Am.
St. Eep. 937, 90 Pac. 211.
Property Acquired by Gift, Devise or Succession.
Property Acquired by Devise or Descent. — All property acquired by
a husband or wife during coverture by devise, bequest or descent, since
it cannot be said to result from their joint efforts, becomes his or her
separate property: Cal. Civ. Code, sees. 162, 163; Dickenson v. Owen,
11 Cal. 71; Eacouillat v. Sansevain, 32 Cal. 376; Savenat v. Le Breton,
1 La. 520; Allen v. Allen, 6 Eob. 104, 39 Am. Dec. 553; Eobin v.
Castille, 7 La. 292; Hicks v. Pope, 8 La. 554, 28 Am. Dee. 142;
Turnbull v. Towles' Exr., 10 La. 254; Dominguez v. Lee, 17 La. 295;
Gravenberg v. Savoie, 8 La. Ann. 499; Decuir v. Lejeune, 15 La.
Ann. 569; Troxler v. Colley, 33 La. Ann. 425; Vavasseur v. Mouton,
34 La. Ann. 1044; Hershberger v. Blewett, 46 Fed. 704. Land in-
herited by a widow from her husband is separate property as against
the creditors of her second husband: Nelson v. Frey (Tex. Civ. App.),
16 S. W. 250.
Property Acquired by Gift Other than Testamentary. — Likewise, all
property, whether real or personal, acquired by gift other than testa-
mentary by a husband or wife during the existence of the marriage
relation is his or her separate estate: Cal. Civ. Code, sees. 162, 163;
Estate of Foster. 53
Bessie v.Earle, 4 Cal. 200; Hamilton v. Hubbard, 134 Cal. 603, 65
Pac. 321, 66 Pac. 860; Savenat v. Le Breton, 1 La. 520; Gates v.
Legendre, 10 Rob. 74; Lemmon v. Clark, 36 La. Ann. 744; Owen v.
Tankersley, 12 Tex. 405; Bradley v. Love, 60 Tex. 472; McClelland
V. McClelland (Tex. Civ. App.), 37 S. W. 350. The fact that there
are restrictions and qualifications in a grant to a husband does not
deprive it of its character as a donation: Scott v. Ward, 13 Cal. 458;
Noe V. Card, 14 Cal. 576. And land conveyed to a married person
as a gift does not become community, although the donor intendf^d
it as a gift to both husband and wife: Stockstill v. Bart, 47 Fed. 231.
But a deed of gift to a husband and wife, intended as a joint gift,
invests each with an undivided one-half of the land as their separate
property: King v. Summerville (Tex. Civ. App.), 80 S. W. 1050,
affirmed in Summerville v. King, 98 Tex. 332, 83 S. W. 680. Where
a husband gives his wife the proceeds of their dairy, property pur-
chased therewith becomes her separate estate: Dority v. Dority, 30
Tex. 216, 70 S. W. 338, judgment affirmed 71 S. W. 950.
Property paid for by a husband out of community funds, and
directed to be conveyed to his wife as a gift, becomes her separate
property: Peck v. Brumagim, 31 Cal. 441, 89 Am. Dec. 195; Jackson
V. Torrence, 83 Cal. 521, 23 Pac. 695; or, as expressed in Arkle v.
Beedie, 141 Cal. 459, 74 Pac. 1033, property purchased with com-
munity funds with the express purpose on the husband's part of
making a gift to the wife, and deeded to her alone as her separate
property, vests in her as such.
Where a wife gave the income of her separate property to her
husband "to do what he pleased with," the gift became his separate
estate: Estate of Cudworth, 133 Cal. 462, 65 Pac. 1041; and a deed
to a married woman "to have and to hold and enjoy and dispose
of the said land in any and every manner she may think proper for
her own use, benefit and behoof," conveys the property to her as
her separate estate: Laufer v. Powell, 30 Tex. Civ. App. 604, 71
S. W. 549.
Where a deed by husband to wife shows on its face that the land
is a gift, this is sufficient to make it her separate property: Callahan
V. Houston, 78 Tex. 494, 14 S. W. 1027; and where a mother made
a deed to her children "for and in consideration of the natural love
and affection which I have and bear to my said children, and for the
further sum of five dollars, to me in hand paid at and before the
sealing and delivery of these presents, the receipt whereof is hereby
acknowledged, have granted, bargained, sold and conveyed," it was
held that the deed upon its face imported a gift, and conveyed a
separate estate to the grantees: Peck v. Vandenberg, 30 Cal. 11.
Judge Sawyer took the view in this case that parol evidence was
admissible to show that the deed was a gift. In Mahon v. Barnett
(Tex. Civ. App.), 45 S. W. 24, it was affirmed a deed to a husbarx^.
reciting a consideration, may be shown to be a gift to him, and
therefore a part of his separate estate.
54 Coffey's Probate Decisions, Vol. 4.
Property Perfected by Adverse Possession. — A married woman may
perfect in herself a title by adverse possession which originated in a
gift or devise to her. Hence an executed parol gift made to her by
her sisters who put her in possession of the property, and her adverse
possession thereof, with payment of taxes thereon, for more than five
years, and a judgment in her favor quieting her title against the ad-
ministrators of the -deceased sisters, are sufficient to prove title in her
to the premises as her separate property: Siddall v. Haight, 132 Cal.
320, 64 Pae. 410.
Pension Money Received by a Veteran of the Civil War is re-
garded as a donation from the government, and as belonging to his
separate estate, although not received until after his marriage; and
its character is not changed into community property by the fact
that he invests it in land: Johnson v. Johnson (Tex. Civ. App.), 23
S. W. 1022.
Rents, Issues and Profits of Separate Property.
In Some States are Separate Property. — The rents, issues, profits, in-
come and increase of separate property, in some of the states where
the community law prevails, are separate property also; they do not,
whether the separate property from which they arise belongs to the
husband or wife, fall into the community: Civ. Code, sees. 162, 163;
George v. Eansom, 15 Cal. 322, 76 Am. Dec. 490; Lake v. Bender, 18
Nev. 361, 4 Pac. 711, 7 Pac. 74; Harris v. Van De Vanter, 17 Wash.
489, 50 Pac. 50. In the last case cited this rule was applied to the in-
crease of cattle. To the same effect see Thorn v. Anderson, 7 Idaho,
421, 63 Pac. 592. In Arizona property purchased by a married woman
with the rents and profits of her separate estate are not subject to any
of the husband's marital rights: Woffeuden v. Charauleau, 2 Ariz. 91,
11 Pac. 117. "All the property which can be shown by satisfactory
testimony to belong to the separate estate of the wife, whether real,
personal or mixed, and all the rents, issues, profits and increase there-
of, whether the same be the fruit of trade and commerce, of loans and
investments, or the spontaneous production of the soil, or wrested from
it by the hand of industry, is, under the constitution, sacred to the
use and enjoyment of the wife, and cannot be held to answer for the
debts of the husband": Lewis v. Johns, 24 Cal. 98, 85 Am. Dec. 49.
In Some States are Community Property. — In some states, as a gen-
eral rule, the rents, profits and issues of the separate property of a
married person fall into the community, on the theory that they are
acquired by the joint efforts of the husband and wife: Lambert v.
Franchebois, 16 La. 1; Eowley v. Rowley, 19 La. 557; Webb v. Peet,
7 La. Ann. 92; Fisher v. Gordy, 2 La. Ann. 762; Glenn v. Elam, 3
La. Ann. 611; Trezevant v. Holmes, 38 La. Ann. 146; Succession of
Webre, 49 La. Ann. 1491, 22 South. 390; De Barrera v. Frost, 39 Tex.
Civ. App. 544, 88 S. W. 476. This rule appears not to have applied
to profits derived from the use of paraphernal funds under the con-
trol of the wife: Pinard v. Holten, 30 La. Ann. 167; nor to the in-
Estate of Foster. 55
crease of slaves: Frederic v. Frederic, 10 Mart., N. S., 183; Gonor v.
Gonor, 11 Eob. 526; Deshautels v. Fontenot, 6 La. Ann. 689; Mc-
Intyre v. Chappell, 4 Tex. 187. And where a man, before marrying,
conveys property on the condition that there shall be paid to him
annually a specified amount from the income, the annuity is his sep-
arate estate: Krohn v. Krohn, 5 Tex. Civ. App. 125, 23 S. W. 848.
Rents and Crops from the Separate Real Property of a married
woman in Texas have been held to belong to the community notwith-
standing the expenses incident thereto were not borne by the hus-
band or his separate estate; they are not regarded as "increase of
land": De Blane v. Lynch, 23 Tex. 25; Forbes v. Dunham, 24 Tex.
611; Cleveland v. Cole, 65 Tex, 402; Seligson v. Staples, 1 White & W.
Civ. Cas. Ct. App. (Tex.), sec. 1071; Conner v. Hawkins, 66 Tex.
639, 2 S. W. 520; Hayden v. McMillan, 4 Tex. Civ. App. 479, 23 S. W.
430; Schepflin v. Small, 4 Tex. Civ. App. 493, 23 S. W. 432; De Bar-
rera v. Frost, 39 Tex. Civ. App. 544, 88 S. W. 476. So has lumber
sawed at a mill out of logs from land by slaves owned by her as sep-
arate property: White v. Lynch, 26 Tex. 195; and so lias brick made
from her separate land and without expense to her husband: Craxton
v. Eyan, 3 Wills. Civ. Cas. Ct. App., sec. 367.
The Increase of Animals Belongs, in Texas and Louisiana, to the
community: Bonner v. Gill, 5 La. Ann. 629; Howard v. York, 20 Tex.
670; Bateman v. Bateman, 25 Tex. 270; although the animals are the
separate property of the husband or wife: Blum v. Light, 81 Tex.
414, 16 S. W. 1090; Wolford v. Melton, 26 Tex. Civ. App. 486, 63 S. W.
543. In other states the rule is different: Thorn v. Anderson, 7
Idaho, 421, 63 Pac. 592; Harris v. Van De Vanter, 17 Wash. 489, 50
Pac. 50. But the enhancement of the value of animals owned by
a. woman at the time of her marriage, by reason of a natural growth,
their care by the husband, and sustenance from the community prop-
erty, is not an increase, within the meaning of the foregoing rule,
which falls into the community. The word "increase," as used in
this connection, has reference to an increase of progeny: Stringfellow
V. Sorrells, 82 Tex. 277, 18 S. W. 689.
Interest on Funds Belonging to the Separate Estate of a married
woman, in those jurisdictions where the rents, issues and income of
separate property fall into the community, is regarded as community
property: Braden v. Gose, 57 Tex. 37; Cabell v. Menczer (Tex. Civ.
App.), 35 S. W. 206; Parrish v. Williams (Tex. Civ. App.), 53 S. W.
79; although it seems that interest due from the husband on money
borrowed from his wife and agreed to be paid to her for its use be-
longs to her separate estate: Hamilton-Brown Shoe Co. v. Whitaker,
4 Tex. Civ. App. 380, 23 S. W. 520; Hamilton-Brown Shoe Co. v. Kel-
lum (Tex. Civ. App.), 23 S. W. 524.
Profits Arising from the Investment of a wife's separate funds in
a commercial or mercantile business are community property in those
states where the rents and profits of the separate estate of a married
56 Coffey's Probate Decisions, Vol. 4.
person fall into the community: Epperson v. Jones, 65 Tex. 425 r
Smith V. Bailey, 66 Tex. 553, 1 S. W. 627; Claflin v. Pfeiffer, 76 Tex.
469, 13 S. W. 483. But the courts announcing this rule have refused
to extend it to cases where profits have accrued through the sale or
exchange by a husband of land belonging to the separate estate of
the wife, and have held that such profits are ''increase of land," and
hence her separate property: Evans v. Purrinton, 12 Tex. Civ. App.
158, 34 S. W. 350. Said the court in Cabell v. Menczer (Tex. Civ.
App.), 35 S. W. 206: "Profits arising from the investment of money
in a mercantile business are community property: Epperson v. Jones,
65 Tex. 425; Smith v. Bailey, 66 Tex. 553, 1 S. W. 627. While these
principles are well settled by our decisions, we have been unable to
find any decision of our supreme court, nor have counsel for appel-
lants cited any, which goes to the extent of holding, as contended for,
that the profits made in the sale or exchange of land in the manner
as shown by the facts in this case become community property. When
the separate property is invested in real estate, and the same is sold
at a profit, and the proceeds arising therefrom are reinvested in real
estate, which is also resold, the same is separate property; and it is
immaterial how often mutations take place, as its changed condition
can be traced and identified by clear and satisfactory proof. The
term 'increase of land,' as used in the statute, evidently must include
the profits arising from the sale of land. If not, it is meaningless":
Cabel V. Menczer (Tex. Civ. App.), 35 S. W. 206.
Profits Arising from a Business carried on during coverture ordi-
narily belongs to the community: Lewis v. Lewis, 18 Cal. 654; Young-
worth V. Jewell, 15 Nev. 45; Heidenheimer v. Felker, 1 White & W.
Civ. Cas., Tex. App., sec. 362; and in Louisiana and Texas this is true,
although the business belonged to the wife before marriage (Mehnert
V. Dietrich, 36 La. Ann. 390), or although the capital is her separate
estate: Middlebrook v. Zapp, 73 Tex. 29, 10 S. W. 732; Mitchell v.
Mitchell, 80 Tex. 101, 15 S. W. 705.
A Prize Drawn on a Lottery Ticket bought by a wife with her sep-
arate money has in Texas been held not acquired by gift, devise or
descent, and therefore not her separate property, but the community
property of herself and husband: Dixon v. Sanderson, 72 Tex. 359, 13
Am. St. Rep. 801, 10 S. W. 535.
The Proceeds Arising from the Sale or Exchange of Separate Prop-
erty becomes the separate property of the spouse whose property is
sold or exchanged: Beaudry v. Felch, 47 Cal. 183; Stewart v. Pickard,
10 Rob. (La.) 18; Succession of Hale, 26 La. Ann. 195; Chappell v.
Mclntyre, 9 Tex. 161; German Ins. Co. v. Hunter (Tex. Civ. App.),
32 S. W. 344; Cabell v. Menczer (Tex. Civ. App.), 35 S. W. 206. A
note given to a married woman in payment of land of her separate
estate is her separate property: Hamilton v. Brooks, 51 Tex. 142;
Morris v. Edwards, 1 White & W. Tex. Civ. Cas., see. 548; and if the
note is delivered up to the maker by her husband and another taken.
Estate of Foster. 57
to his order, this second note is also her separate property: Eose v.
Houston, 11 Tex. 524, 62 Am. Dec. 478. It is not essential that sep-
arate property be preserved in specie or in kind to maintain its
character as such; it will remain separate property, although it under-
goes mutations and changes, so long as it can be traced and identified:
Kose V. Houston, 11 Tex. 324, 62 Am. Dec. 478.
Earnings of Husband or Wife.
In General. — The earnings of both spouses while living together,
the wife's as well as the husband's, are, as a rule, community prop-
erty. This, indeed, is according to the fundamental principles of
the community law: Washburn v. Washburn, 9 Cal. 475; Finnigan
V. Hibernia Savings & Loan Soc, 63 Cal. 390; Martin v. Southern
Pac. Co., 130 Cal. 285, 62 Pac. 515; Fennell v. Drinkhouse, 131 Cal.
447, 82 Am. St. Eep. 361, 63 Pac. 734; Knight v. Kaufman, 105
La. 35, 29 South. 711; Succession of Manning, 107 La. 456, 31
South. 862; Adams v. Baker, 24 Nev. 375, 55 Pac. 362; Cline v. Hack-
barth, 27 Tex. Civ. App. 391, 65 S. W. 1086; Abbott v. Wetherby,
6 Wash. 507, 36 Am. St. Eep. 176, 33 Pac. 1070; Yake v. Pugh,
13 Wash. 78, 52 Am. St. Eep. 17, 42 Pac. 528. Thus it has been af-
firmed that a claim by a married woman for services rendered a de-
cedent as nurse constitutes community property: Smith v. Furnish, 70
Cal. 424, 12 Pac. 392. And property purchased by a married woman
with her earnings becomes community, unless the husband intended to
give her the proceeds of her earnings, in which case it would be her
separate estate: Johnson v. Burford, 39 Tex. 242. If articles of per-
sonalty are purchased with money earned by a wife under an agree-
ment with her husband, that such money should be her separate prop-
erty, and such articles are brought into the house and taken possession
of by her as her separate property with the consent of her husband, such
acts amount to a gift from the husband to the wife, and constitute
such articles her separate property: Yake v. Pugh, 13 Wash. 78, 52
Am. St. Eep. 17, 42 Pac. 528. A donation in remuneration for ser-
vices rendered by a married woman to the donor is not a part of the
community, nor can real property so received be disposed of by the
husband: Fisk v. Flores, 43 Tex. 340. Where a husband gives his wife
the proceeds of her dairy, property purchased therewith may be set
aside as her separate estate: Dority v. Dority, 30 Tex. Civ. App. 216,
70 S. W. 950, affirmed in 96 Tex. 215, 71 S. W. 950, 60 L. E. A. 941.
In Case of Separation. — The earnings of a wife while living apart
from her husband are her separate property: Loring v. Stuart, 79
Cal. 201, 21 Pac. 651; Greve v. Echo Oil Co. (Cal. App.), 96 Pac. 904;
Queen Ins. Co. v. May (Tex. Civ. App.), 35 S. W. 829. When he
leaves her and lives in another county on account of domestic in-
felicity, without expressing any intention to return, property ac-
quired by her earnings while continuing to reside at their former
place of residence is acquired while she is living separate from him,.
58 Coffey's Probate Decisions, Vol. 4.
within the meaning of the foregoing rule: Boring v. Stuart, 79 Cal.
201, 21 Pac. 651.
In Case of Express Agreement. — The earnings of a married woman
may be her separate property by agreement with her husband: Greve
V. Echo Oil Co. (Cal. App.), 96 Pac. 904; Vansickle v. Wells, Fargo
& Co., 105 Fed. 16. Thus the personal earnings acquired by a woman
in keeping boarders'^and in doing work as a dressmaker, under an
agreement with her husband that the money so acquired should be-
long to her alone, are her separate property as against his creditors;
and if articles of personalty are purchased therewith, they too belong
to her separate estate: Yake v. Pugh, 13 Wash. 78, 52 Am. St. Eep.
17, 42 Pac. 528. But a mere general agreement between husband and
wife that whatever she earns shall belong to her, which has no refer-
ence to any particular business or employment, has been held insuffi-
cient to impress her earnings with the character of separate property:
Sherlock v. Denny, 28 Wash. 170, 68 Pac. 452.
Property Acquired from the Government.
By Gift or Donation. — Land granted by the government as a gift or
donation to a married person becomes Ms or her separate estate: Wil-
son V. Castro, 31 Cal. 420; Eouquier's Heirs v. Kouquier's Exrs., 5 Mart.,
N. S., 98, 16 Am. Dec. 186, and note; Wilkinson v. American Iron Moun-
tain Co., 20 Mo. 122. Thus a donation under the act of 1837, granting
to soldiers who served at the battle of San Jacinto, when made to a
married man, does not fall into the community but becomes his separate
property: Ames v. Hubby, 49 Tex. 705. Land patented under a war-
rant for military service is regarded as a gift, and does not become
community property, under the Washington statutes: Hatch v. Fergu-
son, 68 Fed. 43, 15 C. C. A. 201, 29 U. S. App. 651, 33 L. R. A. 759.
Land granted by virtue of a bounty certificate for services rendered
by the patentee in the Texas army before his marriage is, notwith-
standing the certificate is not issued until after the marriage, his
separate property: Parker v. Newberry, 83 Tex. 428, 18 S. W. 815.
See, further, the note to Ahern v. Aheru, 96 Am. St. Rep. 922.
For Valuable Consideration. — But where a land certificate is issued
to a volunteer for services rendered in the Texas war for independence
under a contract with the government, the property belongs to the
community, for it is acquired by onerous title — that is, a title created
by valuable consideration: Barrett v. Spence, 28 Tex. Civ. App. 349,
67 S. W. 921; Kircher v. Murray, 54 Fed. 617, affirmed 60 Fed. 48, 8
C. C. A. 448. And the general rule is that property acquired from the
government for a valuable consideration by a husband is presumed to
belong to the community: Lake v. Lake, 52 Cal. 428; Morgan v.
Lones, 78 Cal. 58, 20 Pac. 248; Mills v. Brown, 69 Tex. 244, 6 S. W.
612; Duncan v. Bickford, 83 Tex. 322, 18 S. W. 598; Booth v. Clark,
34 Tex. Civ. App. 315, 78 S. W. 392; Kromer v. Friday, 10 Wash. 621,
.39 Pac. 229, 32 L. E. A. 671. See, further, the note to Ahern v.
Ahern, 96 Am, St. Rep. 916.
Estate of Foster. 59
Ey Title Initiated Before Marriage. — Where an unmarried person
acquires the equitable title to a tract of public land, the land does
not lose its character as separate property by the fact that the patent
is not issued to him until after his marriage: Barbet v. Langlois, 5
La. Ann. 212; Lawson v. Eipley, 17 La. 238; Gardner v. Burkhart, 4
Tex. Civ. App. 590, 23 S. W. 709. Hence it is that where a woman
files a homestead claim under the laws of the United States, settles
upon and improves the property for four years, and then marries, the
land is her separate property, notwithstanding the patent is not issued
until after her marriage, since the patent is only the legal evidence
of the title already vested in her: Forker v. Henry, 21 Wash. 235, 57
Pac. 811; and an unmarried woman who is an occupant of land under
the "townsite act" has an equitable interest which is her separate
property, although the patent is not issued until after her marriage
and the necessary funds to obtain the title are advanced by her hus-
band: Morgan v. Lones, 80 Cal. 317, 22 Pac. 253. Where an unmarried
woman, after acquiring an initiatory right to pre-empt public land,
marries, and during her marriage pays the government price for the
land and receives a patent therefor, the property thus acquired be-
comes her separate estate; and this result follows whether the money
paid to the government belongs to the community or is acquired by
her in consideration of the sale of a part of the land: Harris v. Harris,
71 Cal. 314, 12 Pac. 274. See, also, the note to Ahern v. Ahem, 96
Am. St. Eep. 920.
By Title Initiated During Coverture. — From the rule of the pre-
ceding paragraph that if either spouse prior to the marriage acquired
an equitable right to property which was perfected after marriage,
the status of the property follows the right of the spouse who had
the equitable interest before marriage, it follows that title initiated
during coverture may be community estate although not perfected
until after the dissolution of the marriage. Thus where a man dur-
ing marriage enters a homestead under the United States law and
conforms to the prescribed requirements, the property is regarded as
belonging to the community although he does not make final proof or
obtain a patent until after the death of his wife: Brown v. Fry, 52
La. Ann. 58, 26 South. 748; Creamer v. Briscoe (Tex. Civ. App.), 109
S. W. 911; Ahern v. Ahern, 31 Wash. 334, 96 Am. St. Kep. 912, 71
Pac. 1023; Cox v. Tompkinson, 39 Wash. 70, 80 Pac. 1005. Said the
court in Crochet v. McCamant, 116 La. 1, 114 Am. St. Eep. 538, 40
South. 474: "The acquisition of the land by the homesteader under
the federal homestead law dates from the entry. The occupying and
cultivating of the land for five years, and the making of the final
proofs, are merely conditions imposed upon the title; and the ac-
complishment of these conditions has a retroactive effect to the date
of the entry. Consequently the homestead becomes the joint property
of the husband and the wife, if the community of acquets and gains
existed between them at the time of the entry, even though the proofs
were made, and the certificate and the patent issued, only after the
60 Coffey ^s Probate Decisions^ Vol. 4.
dissolution of the community by the death of the wife": See, also,
the note to Ahern v. Ahern, 96 Am. St. Eep. 919.
But in order that a right to public land, initiated during coverture
but not consummated until the dissolution of the marriage, shall fall
into the community, it is necessary that the right should have pro-
ceeded beyond a mere occupancy of the land or possessory right, and
arisen to the dignity, -of ownership: Labish v. Hardy, 77 Cal. 327, 19
Pae. 531; Eichard v. Moore, 110 La. 435, 34 South. 593; Simpson v.
Otis (Tex. Civ. App.), 109 S. W. 940. And in Washington, when one
makes a homestead entry and dies before completing the full residence
period necessary under the homestead law, leaving a widow who com-
pletes the period of residence, makes proof and procures a patent,
the land becomes her separate property: Cunningham v. Krutz, 41
Wash. 190, 83 Pac. 109, 7 L. E. A., N. S., 967. This decision perhaps
modifies the law of that state as declared in the decisions cited in the
preceding paragraph. In Louisiana, if land is entered in the name of
the wife during marriage, but the patent is issued after the com-
munity is dissolved by a judgment, the land is presumed to be an ac-
quisition of the community, since the title to government land dates
from the certificate and not from the patent: Simiem v. Perrodin, 35
La. Ann. 931.
By Acquisition of Timber Lands. — In Gardner v. Port Blakely Mill
Co., 8 Wash. 1, 35 Pac. 402, the supreme court of Washington de-
cided that land acquired by a married man under the act of Con-
gress providing for the sale of timber lands is his separate property,
which can be alienated without the consent of his wife. The reasons
assigned for this conclusion were that husband and wife are each
permitted to make an entry of one hundred and sixty acres under the
provisions of the act, and that the entryman is required to make oath
that he has made no other application under the act, that he does not
apply to purchase the same on speculation but in good faith to ap-
propriate it to his own exclusive use and benefit, and that he has not
directly or indirectly made any agreement with any person by which
the title should inure in whole or in part to the benefit of any person
except himself. It has subsequently been held that the fact that com-
munity funds are used to purchase a timber claim which is the hus-
band's separate property does not give the wife an interest in or lien
upon the property itself: James v. James (Wash.), 97 Pac. 1113.
By Acquisition of Mining Property. — According to Jacobson v.
Bunker Hill etc. Min. Co., 3 Idaho, 126, 28 Pac. 396, it is held that min-
ing property acquired by a married man under the laws of the United
States is community property. But the supreme court of Washington
has disapproved the Idaho decision, and held that a locator's interest
in a mining claim is his separate property: Phoenix Min. etc. Co. v.
Scott, 20 Wash. 48, 54 Pac. 777, citing Black v. Elkhorn Min. Co.,
163 U. S. 445, 16 Sup. Ct. 1101, 41 L. Ed. 221, which was decided sub-
sequently to the Idaho case. A locator of a mining claim has no such
Estate op Foster. 61
interest therein after a conveyance and abandonment thereof that the
community interest of his wife attaches: McAllister v. Hutchinson, 12
N. M. Ill, 75 Pac. 41.
By Acquisition Under Colonization Law. — According to Hood v.
Hamilton, 33 Cal. 698, land granted under the Mexican colonization
laws to married men became their separate property. But according
to the Texas decisions lands granted to married men or married women
under the colonization laws of 1823 and 1839, and subsequent enact-
ments, become community property, on the theory that they were ac-
quired by onerous title: Yates v. Houston, 3 Tex. 443; Burris v.
Wideman, 6 Tex. 231; Edwards v. James, 7 Tex. 372; Parker v. Chance,
11 Tex. 513; Wilkinson's Heirs v. Wilkinson, 20 Tex. 237; Babb v.
Carroll, 21 Tex. 765; Simmons v. Blnnehard, 46 Tex. 266; Kudd v.
Johnson, 60 Tex. 91; Manchaca v. Field, 62 Tex. 135. As to the effect
of the death of the wife before the issuance of a patent, see Webb v.
Webb, 15 Tex. 274; Cannon v. Murphy, 31 Tex. 405; Caudle v. Welden,
32 Tex. 355; Porter v. Chronister, 58 Tex. 53; Norton v. Cantagrel,
60 Tex. 538.
Proceeds of Life Insurance Policy. — Where premiums on a policy of
insurance on the life of a married man are paid out of the community
funds, the proceeds of the policy belong to the community: In re
Stans' Estate (Cal.), Myr. Prob. 5; Succession of Buddig, 108 La.
406, 32 South. 361; Martin v. Moran, 11 Tex. Civ. App. 509, 32 S. W.
904. And where a man pays the first one-third of the amount of the
premiums on his life insurance policy out of his earnings before mar-
riage, and the remainder from his earnings after marriage, one-third
of the policy belongs to the separate estate and the remainder to the
community property: In re Webb's Estate (Cal.), Myr. Prob. 93. The
rights under a policy of life insurance taken out by an unmarried
man belong to his separate estate, and do not fall into the community
on his subsequent marriage; but the community arising under his mar-
riage is entitled to have payments of the premiums thereon made by
it reimbursed as expenditures for such separate estate: In re Mose-
mau's Estate, 38 La. Ann. 219. The proceeds of a policy taken out by
a husband on his life in favor of his wife does not become a part of
the community but belongs to her: Succession of Bofenschen, 29 La.
Ann. 711; Succession of Hearing, 26 La. Ann. 326. In Crowe v. Dob-
bel, 105 Cal. 350, 38 Pac. 957, it is decided that an insurance policy
on the life of a man payable to his wife, her executors, administrators
or assigns, is her separate property, and, upon her death before his,
he becomes entitled thereto only as her heir. The proceeds of a policy
on the life of a wife in favor of the husband has been held to belong
to his separate estate, although the premiums thereon were paid from
the community: Martin v. McAllister, 94 Tex. 567, 63 S. W. 624, 56
L. R. A. 585. Where a benefit certificate of the brother of a married
woman was made payable to her, not as a gift, but in consideration
of the care and support by the woman and her husband of the broth-
62 Coffey's Probate Decisions, Vol. 4.
cr's children, and in satisfaction of an indebtedness of the brother
to the husband, and on the payment of future assessments by the hus-
band upon the certificate, and the proceeds of the certificate were in-
vested in real estate in her name, the property so acquired became
community: Bollinger v. Wright, 143 Cal. 292, 76 Pac. 1108.
Damages Recovered for Personal Injuries. — The right to recover
damages for personal injuries sustained by either spouse, and the dam-
ages recovered therefor, as a general rule, belong to the community
property: McFadden v. Santa Ana etc. E. E. Co., 87 Cal. 464, 25 Pac.
681, 11 L. E. A. 252; Neale v. Depot Ey. Co., 94 Cal. 425, 29 Pac. 954^
Martin v. Southern Pac. Co., 130 Cal. 285, 62 Pac. 515; Fournet v.
Morgan's etc. Steamship Co., 43 La. Ann. 1202, 11 South. 541; Gal-
lagher v. Bowie, 66 Tex. 265, 17 S. W. 407; Loper v. Western Union
Tel. Co., 70 Tex. 689, 8 S. W. 600; Bohan v. Bohan (Tex. Civ. App.),
56 S. W. 959; San Antonio v. Wildenstein (Tex. Civ. App.), 109 S. W.
231. But in Louisiana, owing to a change in the statute, a claim for
damages for personal injuries to a married woman does not now fall
into the community: Martin v. Derenbecker, 116 La. 495, 40 South.
849. Damages for personal injuries sustained by a man after he has
separated from his wife with the intention not to live with her again
are community property: Ligon v. Ligon, 39 Tex. Civ. App. 392, 87
S. W. 838.
A claim for unliquidated damages against a carrier for indignities
suffered by a woman before marriage is her separate property, and it
does not fall into the community on her subsequent marriage: St
Louis etc. Ey. Co. v. Wright, 33 Tex. Civ. App. 80, 75 S. W. 565.
Damages which a wife recovers against a saloon-keeper for an illegal
sale of liquor to her husband, under the civil damage act, is her sep-
arate property and belongs exclusively to her: Hahn v. Goings, 22
Tex. Civ. App. 576, 56 S. W. 217.
Damages recovered by parents for the death of their child are a
part of the community property: Galveston etc. Ey. Co. v. Hughes, 22
Tex. Civ. App. 134, 54 S. W. 264. But the damages allowed to heirs
for the death of a wife and mother have no existence prior to the
death, and are not community property: Eedfield v. Oakland etc. Ey,
Co., 110 Cal. 277, 42 Pac. 822.
Presumption for or Against Community Property.
In General. — As a general rule, property acquired during coverture by
either the husband or the wife, and property in their possession during
marriage (Schuler v. Savings & Loan Soc, 64 Cal. 397, 1 Pac. 479; Dim-
mick V. Dimmick, 95 Cal. 323, 30 Pac. 547; In re Boody's Estate, 113
Cal. 682, 45 Pac. 858; Eepplier v. Gow's Syndics, 1 La. 474; Bostwick
V. Gasquet, 11 La. 534; Succession of Pratt, 12 La. Ann. 457; Grayson v.
Sandford, 12 La. Ann. 646; Lacroix v. Derbigny, 18 La. Ann, 27; Van
Wickle V. Violet, 30 La. Ann. 1106; Stauffer v. Morgan, 39 La. Ann.
632, 2 South. 98; Duruty v. Musacchia, 42 La. Ann. 357, 7 South. 555;
Succession of Barry, 48 La. Ann. 1143, 20 South. 656; Succession of
Estate of Foster. 63
Mnnning, 107 La. 456, 31 South. 862; Strong v. Eakin, 11 N. M. 107,
66 Pac. ry-ii9; Brown v. Lockhart, 12 N. M. 10, 71 Pac. 1086; Hviston
V. Cur], 8 Tex. 239, 58 Am. Dee. 110; Smith v. Boquet, 27 Tex. 507;
Box y. Word, 65 Tex. 159; Mitchell v. Mitchell, 80 Tex. 101, 15 S. W.
705; McKinney v. Nunn, 82 Tex. 44, 17 S. W. 516; Allardyce v. Ham-
bleton, 96 Tex. 30, 70 S. W. 76; Blackwell v. Mayfield (Tex. Civ.
App.), 69 S. W. 659; Thayer v. Clarke (Tex. Civ. App.), 77 S. W. 1050,
affirmed, Clark v. Thayer, 98 Tex. 142, 81 S. W. 1274; Hoopes v.
Mathias, 40 Tex. Civ. App. 121, 89 S. W. 36; Keyset v. Clifton (Tex.
Civ, App.), 50 S. W. 957; Woodland Lumber Co. v. Link, 16 Wash.
72, 47 Pac. 222; Hanna v. Beeves, 22 Wash. 6, 60 Pac. 62; Allen v.
Chambers, 22 Wash. 304, 60 Pac. 1128; Hill v. Gardner, 35 Wash. 529,
77 Pac. 808; O'Sullivan v. O'Sullivan, 35 Wash. 481, 77 Pac. 806); or
in their possession at the time of its dissolution by death or divorce
(Montegut v. Trouart, 7 Mart., O. S., 361; Nores v. Carraby, 5 Rob.
292; Babin v. Nolan, 6 Eob. 508; Succession of Baum, 11 Eob. 314;
Lake v. Bender, 18 Nev. 361, 4 Pac. 711, 7 Pac. 74; Heidenheimer v.
Loring, 6 Tex. Civ. App. 560, 26 S. W. 99; Bryn v. Kleas, 15 Tex.
Civ. App. 205, 39 S. W. 980; McCelvey v. Cryer (Tex. Civ. App.), 37
S. W. 175; Edelstein v. Brown (Tex. Civ. App.), 95 S. W. 1126; Stein
V. Mentz, 42 Tex. Civ. App. 38, 94 S. W. 477; Smith v. Smith (Tex.
Civ. App.), 91 S. W. 815; Cope v. Blount (Tex. Civ. App.), 91 S. W.
615), is presumed to belong to the community.
In Case of Separate Conveyance to Husband or Wife. — This pre-
sumption applies where property is purchased by or conveyed to the
husband (Bass v. Larche, 7 La. Ann. 104; Murphy's Heirs v. Jury, 39
La. Ann, 785, 2 South. 575; Hall v. Toussaint, 52 La, Ann, 1763, 28
South. 304; Succession of Muller, 106 La. 89, 30 South. 329; Osborn
V. Osborn, 62 Tex. 495; Nixon v. Wichita Land & Cattle Co., 84 Tex.
408, 19 S. W. 560; Schneider v. Sellers, 25 Tex. Civ. App. 226, 61
S, W. 541; Burleson v, Alvis, 28 Tex, Civ. App. 51, 66 S. W. 235;
Dormitzer v, German Sav. & Loan Soc, 23 Wash. 132, 62 Pac. 862);
and it also aiiplies where property is purchased or conveyed to the
wife (Alverson v. Jones, 10 Cal. 9, 70 Am. Dec. 6S9; Pixley v. Hug-
gins, 15 Cal. 127; Mott v. Smith, l6 Cal. 533; Adams v. Knowlton,
22 Cal, 283; McDonald v. Badger, 23 Cal. 393, 83 Am. Dec. 123; Peck
V, Brummagiu, 31 Cal. 440, 89 Am, Dec. 195; Ingersoll v. Truebody,
40 Cal. 603; Alferitz v. Arrivillaga, 143 Cal. 646, 77 Pac. 657; Stowell
V. Tucker, 7 Idaho, 312, 62 Pac, 1033; Fisher v. Gordy^ 1 La. Ann.
762; Provost v. Delahoussaye, 5 La. Ann. 610; De Young v. De Young,
6 La. Ann. 786; Webb v. Peet, 7 La. Ann. 92; Huntington v. Legros,
18 La. Ann. 126; Block v. Melville, 22 La. Ann. 147; Sulstrang v,
Betz, 24 La. Ann. 295; De Sentmanat v, Soule, 33 La. Ann. 609;
Gogreve v. Dehon, 41 La. Ann. 244, 6 South. 31; Prior v. Gidecns, 50
La. Ann. 216, 23 South. 337; Jordy v. Muir, 51 La. Ann, 55, 25 South.
550; Parker v. Chance, 11 Tex, 513; Moffatt v, Sydnor, 13 Tex, 628;
Wells V. Cockrum, 13 Tex. 127; Smith v, Strahan, 16 Tex, 314. 67
Am. Dec. 622; Castro v. lilies, 22 Tex. 479, 73 Am. Dec. 277; Coats
64 Coffey's Probate Decisions, Vol. 4.
V. Elliott, 23 Tex. 606; Cooke v. Bremond, 27 Tex. 457, 86 Am. Dec.
626; Stanley v. Epperson, 45 Tex. 644; Epperson v. Jones, 65 Tex.
425; Claflin v. Pfeiffer, 76 Tex. 469, 13 S. W. 483; Oppenheimer v.
Eobinson, 87 Tex. 174, 27 S. W. 95; Collins v. Turner, 1 White & W.
Civ. Cas. Ct. App., sec. 517; Stephenson v. Chappell, 12 Tex. Civ.
App. 296, 33 S. W.^880, 36 S. W. 482; Ballew v. Casey (Tex. Civ.),
9 S. W. 189; SwinkTv. League, 6 Tex. Civ. App. 309, 25 S. W. 807;
Sinsheimer v. Kahn, 6 Tex. Civ. App. 143, 24 S. W. 533; Tompkins v.
Williams, 7 Tex. Civ. App. 602, 25 S. W. 158; Sweeney v. Taylor Bros.,
41 Tex. Civ. App. 365, 92 S. W. 442; Flannery v. Chidgey, 33 Tex.
Civ, App. 638, 77 S. W. 1034; Yesler v. Hochstettler, 4 Wash. 349,
30 Pac. 393) ; although the presumption is probably stronger v?here
the conveyance is made to tbe husband than where it is made to
the wife: See the note to Cooke v. Bremond, 86 Am. Dec. 637.
In California the statute was amended in 1889 so as to change the
presumption in favor of married women; and the law now provides in
this state that "whenever any property is conveyed to a married
woman by an instrument in writing, the presumption is that the title
is thereby vested in her as her separate property": Cal. Civ. Code,
sec. 164; Nilson v. Sarment, 153 Cal. 524, 126 Am. St. Eep. 91, 96
Pac. 315. This amendment to the statutory law is not retrospective
in its operation: Lewis v. Burns, 122 Cal. 358, 55 Pac. 132; Booker v.
Castillo (Cal.), 98 Pac. 1067.
In Case of Joint Conveyance to Husband and Wife. — ^Where prop-
erty is conveyed jointly to a husband and wife, it is, unless the stat-
ute provides otherwise, presumed to be community estate, the same
as where it is conveyed to the husband or to the wife separately:
Jordan v. Fay, 98 Cal. 264, 33 Pac. 95. "All property acquired during
the marriage is presumed to belong to the community, whether the
conveyance is to the husband or wife, or both, and the onus of proving
that it is separate property of either is on the party asserting it":
Wallace v. Campbell, 54 Tex. 87; Morris v. Hastings, 70 Tex. 26, 8
Am. St. Eep. 570, 7 S. W. 649; King v. Summerville (Tex. Civ. App.),
80 S. W. 1050; Summerville v. King, 98 Tex. 332, 83 S. W. 680. But
in California the statute was amended in 1889, and now provides:
"Whenever any property is conveyed to a married woman by an in-
strument in writing, the presumption is that the title is thereby vested
in her as her separate property. And in case the conveyance be to
such married woman and to her husband, or to her and any other
person, the presumption is that the married woman takes the part con-
veyed to her as tenant in common, unless a different intention is
expressed in the instrument, and the presumption in this section men-
tioned is conclusive in favor of a purchaser or encumbrancer in good
faith and for a valuable consideration": Cal. Civ, Code, sec. 164. As
to other persons, the presumption may be rebutted by evidence that
the entire property is community: Bollinger v. Wright, 143 Cal. 292,
76 Pac. 1108. This amendment to the California statute the supreme
Estate of Foster. G5
«ourt has refused to give a retrospective operation so as to disturb
titles already vested: Jordan v. Fay, 98 Cal. 264, 33 Pac. 95.
Evidence to Overcome Presiunption. — Presumptions in favor of the
community property are indulged only in the absence of direct evi-
dence on the question: Letot v. Peacock (Tex. Civ. App.), 94 S. W.
1121. And when indulged they are ordinarily not conclusive, but
yield to satisfactory evidence that the property is in fact the separate
estate of one of the spouses by reason of having been acquired by
him or her in one of the ways which impress it with the character of
separate property: See the note to Cooke v. Bremond, 86 Am. Dec.
636-640; Hoeck v. Greif, 142 Cal. 119, 75 Pac. 670; Succession of
Eogge, 50 La. Ann. 1220, 23 South. 933; Fortier v. Barry, 111 La.
776, 35 South. 900; Baker v. Baker, 55 Tex. 577; Hames v. State, 46
Tex. Cr. 562, 81 S. W. 708; York v. Hilger (Tex. Civ. App.), 84 S. W.
1117; Weymouth v. Sawtelle, 14 Wash. 32,^44 Pac. 109. "This in-
variable presumption," said Justice Field, "which attends the posses-
sion of property by either spouse during the existence of the com-
munity, can be overcome only by clear and certain proof that it was
owned by the claimant before marriage, or acquired afterward in
one of the particular ways specified in the statutes, or that it is prop-
erty taken in exchange for or in the investment or as the price of the
property so originally owned or acquired. The burden of proof must
rest with the claimant of the separate estate. Any other rule would
lead to infinite embarrassment, confusion and fraud": Meyer v. Kinzer,
12 Cal. 247, 73 Am. Dec. 538.
Courts have said that the presumption in favor of community prop-
erty can be overcome only by "clear and convincing," or by "clear
and cogent," or by "clear and conclusive" proof: Lewis v. Burns, 122
Cal. 358, 55 Pac. 132; Eowe v. Hibernia etc. Loan Soc, 134 Cal. 403,
66 Pac. 569; Eiebli v. Husler (Cal.), 69 Pac. 1061; Bachino v. Coste,
35 La. Ann. 570; Neher v. Armijo, 9 N. M. 325, 54 Pac. 236; Love v.
Eobertson, 7 Tex. 6, 56 Am. Dec. 41; Coats v. Elliott, 23 Tex. 606.
These expressions, however, are misleading, in that they imply more ,
cogent proof than the law demands. It would be more accurate to
say that the presumption may be overcome "by a preponderance of
evidence": Strong v. Eakin, 11 N. M. 107, 66 Pac. 539; Blackwell v.
Mayfield (Tex. Civ. App.), 69 S. W. 659. "The assertion of an ex-
ception (to the rule that property purchased during marriage is com-
munity) merely requires the production of proof either that the
conveyance was in fact a lawful gift, or that the consideration was
furnished by husband or wife individually out of funds or property
which he or she was entitled, under the law, to hold as separate prop-
erty. Whatever satisfies the court or the jury of the truth of one or
the other of these probative facts will authorize the finding of the
ultimate fact that the subject of the conveyance was separate, and not
common, property; and thus the presumption will be overcome": Wey-
mouth V. Sawtelle, 14 Wash. 32, 44 Pac. 109, "Clearly it was never
Prob. Dec, Vol. IV — 5
66 Coffey's Probate Decisions^ Vol. 4.
intended by this court," to quote from Freese v. Hibernia Loan etc.
Soc, 139 Cal. 392, 73 Pac. 172, "to lay down a rule requiring demon-
stration in such matters — that is, such a degree of proof as, excluding
possibility of error, produces absolute certainty. Such proof is never
required. Generally moral certainty is required, or that degree of
proof which produces conviction in an unprejudiced mind, and evi-
dence which ordinarily produces such conviction is satisfactory
We are of the opinion that it is incumbent on the party seeking to
overthrow the presumption of community property to do no more than
to produce such legal evidence as, under all the circumstances of the
particular case, would ordinarily produce conviction in an unpre-
judiced mind, and that in the face of such evidence, the naked pre-
sumption, unsupported by any testimony must fall. In considering
whether or not such a degree of proof has been attained, we have the
right to consider such presumptions and inferences as are authorized
by the law of evidence." To the same effect see Neher v. Armijo, 9
N. M. 325, 54 Pac. 236; Mitchell v. Mitchell, 80 Tex. 101, 15 S. W. 705.
Effect of Recitals in Deed. — A recital in a deed to a married
woman that the consideration is paid out of her separate funds, or
that the land is conveyed to her as her separate estate, ordinarily
rebuts the presumption that the property falls into the community,
and prima facie makes it her separate estate. Such recitals, however,
are not conclusive, but only prima facie of the separate character of
the estate: Morrison v. Wilson, 13 Cal. 494, 73 Am. Dec. 593; McComb
V. Spangler, 71 Cal. 418, 12 Pac. 347; Sanchez v. Grace M. E. Church,
114 Cal. 295, 46 Pac. 2; McCutcheon v. Purinton, 84 Tex. 603, 19 S.
W. 710; Evans v. Purinton, 12 Tex. Civ. App. 158, 34 S. W. 350;
Kahn v. Kahn (Tex.), 58 S. W. 825; Clardy v. Wilson, 27 Tex. Civ.
App. 49, 64 S. W. 489; Newman v. Newman (Tex. Civ. App.), 86 S.
W. 635; Yesler v. Hochstettler, 4 Wash. 349, 30 Pac. 398; except
where the statute otherwise provides, as apparently it now does in
California in the case of bona fide purchasers and encumbrancers:
Cal. Civ. Code, sec. 164. And in Louisiana it seems that such recitals
alone do not even prima facie make the property the separate estate
of the wife as against creditors and forced heirs: See the note to
Shaw V. Hill, 96 Am. Dec. 424; Kerwin v. Hibernia Ins. Co., 35 La.
Ann. 33; Bartels v. Souchon, 48 La. Ann. 783, 19 South. 941. But a
husband who has been a party to an authentic act by which it is
declared that the wife purchases with her separate paraphernal funds,
and for her separate benefit, is estopped from contradicting the verity
of such recitals unless he first prove that such recitals were embodied
in the act through fraud, error, or violence: Maguire v. Maguire, 40
La. Ann. 579, 4 South. 492; Succession of Bellande, 42 La. Ann. 241,.
7 South. 535; Jordy v. Muir, 51 La. Ann. 55, 25 South. 550.
Constructive Notice to Purchasers. — In Texas the fact that a con-
veyance expressing a valuable consideration was taken in the name
of a married woman imposes no burden upon a purchaser from the
Estate of Blythe. 67
husband of inquiring as to equities which she may have in the land,
but he is protected if he buys in ignorance of her claim to it as her
separate property, though the rule would be otherwise in the event
of recitals in the deed showing that the consideration was paid from
her separate estate, or that the purchase was designed for her sep-
arate use and benefit: Cooke v. Bremond, 27 Tex. -157, 86 Am. Dee.
626, and note; French v. Strumburg, 52 Tex. 92; Parker v. Coop, 60
Tex. 111. In California, however, persons who purchase from a mar-
ried man real estate deeded to his wife for a money consideration,
during coverture, do so at their peril. The record of the deed to the
wife is notice to all the world that the land may be her separate es-
tate, and is sufficient to put purchasers on inquiry: Eamsdell v. Fuller,
28 Cal. 37, 87 Am. Dec. 103; Peck v. Vandenberg, 30 Cal. 11; Mc-
Comb V. Spangler, 71 Cal. 418, 12 Pac. 347; Jackson v. Torrence, 83
Cal. 521, 23 Pac. 695. By a parity of reasoning, persons purchasing
from a married woman real estate deeded to her for a money con-
sideration do so at their peril, notwithstanding the deed recites that
the property is for her separate use and benefit, for such recital makes
the property only prima facie her separate estate: McComb v.
Spangler, 71 Cal. 418, 12 Pac. 347. The California statute now pro-
vides "that all other property acquired after marriage by either
husband or wife, or both, is community property; but whenever any
property is conveyed to a married woman by an instrument in writing,
the presumption is that the title is thereby vested in her as her
separate property. In case the conveyance be to such married woman
and to her husband, or to her and any other person, the presumption
is that the married woman takes the part conveyed to her, as tenant
in common, unless a different intention is expressed in the instru-
ment, and the presumption in this section mentioned is conclusive in
favor of a purchaser or encumbrancer in good faith and for a
valuable consideration": Cal. Civ. Code, sec. 164.
In the Matter of the Estate of THOMAS H. BLYTHE,
Deceased.
[No. 2,401; decided July 31, 1890.]
Legitimation of Child — Construction of Statute. — Section 230 of the
Civil Code, providing for the adoption of an illegitimate child by its
father, is to be liberally construed.
Legitimation of Child — Proof of Paternity. — Under section 230 of
the Civil Code, which provides for the adoption of an illegitimate
child by its father, the proof of paternity must be strict and plenary.
Legitimation of Child — Purpose and Policy of the Statute. — In ex-
amining the claim of the plaintiff to heirship by virtue of legitima-
68 Coffey's Probate Decisions, Vol. 4.
tion under section 230 of the Civil Code, the court observed: Plain-
tiff claims, primarily, under section 230 of the Civil Code, which
requires the institution of heir or adoption to be made by the father.
It must be the father. The institution of heir is the primary object
of the statute. The succession of property rights is incidental; it is
a status that is involved; it is the relation of the child to society.
Legitimation of Child — Evidence of Paternity. — After an extended
examination of the evidence concerning the adoption of an illegitimate
child by her father, the court expressed the opinion that three of
the elements of section 230 of the Civil Code were established: (1)
There was an illegitimate child; (2) the plaintiff was and is that
child; (3) the decedent here was the father of that child.
Legitimation of Child — Receiving into Family. — The most satis-
factory way of establishing that a father has publicly acknowledged
his illegitimate child, as required by section 230 of the Civil Code in
providing for the legitimation of children, is by proof that the child
has been received into the family and given the family name, but
this is not necessary where there is sufficient proof of a reason for
not having done either.
Legitimation of Child — Acts Necessary Thereto — Evidence. — Under
section 230 of the Civil Code, there are four essentials to the adoption
of an illegitimate child by its father: (1) He shall be the natural
father; (2) he shall publicly have acknowledged himself to be the
father; (3) he shall have received the child into his family; (4) he
shall have otherwise treated it as his legitimate child. The evidence
in this case, which, among other elements of proof, embraces oral
declarations and letters of the alleged father, is examined by the
court and held sufficient to meet the requirements of the statute,
although the father did not actually take the child into such family
as he had.
Legitimation of Child — Alien Children. — A father domiciled in Cali-
fornia may, under section 230 of the Civil Code, adopt his illegitimate
child who, with her mother, is domiciled in England. The law of
California governs and bestows on the child the capacity of heir.
Legitimation of Child — Written Acknowledgment. — Under the former
rule of strict construction it was necessary, in order to comply with
the law declared in section 1387 of the Civil Code, which provides
that an illegitimate child is the heir of a person who in writing ac-
knowledges himself to be the father of such child, there must be a
paper formally made and executed. There must b« a witness, not a
mere spectator; but a witness in such case must be one who sees
the execution of the paper, and attests it as a witness to confirm its
authenticity in anticipation of being called to testify to the act;
there is an absolute necessity that there should be a witness called
for that purpose by the subscriber, and there must be an express
intention on the part of the latter to make the acknowledgment of
the illegitimate child. These strict rules, however, no longer pre-
vail: See Blythe v. Ayres, 96 Cal. 532, 102 Cal. 254,
Estate of Blythe. 69
Legitimation of Child — Effect of Written Acknowledgment. — A writ-
ten acknowledgment by a father of his illegitimate child, under sec-
tion 1387 of the Civil Code is not ambulatory in its nature like a
will, but, once executed, is irrevocable; it creates a status, and
cannot thereafter be changed. The moment the writing is executed
in conformity with the statute, the illegitimate child is an heir, and
no subsequent act of either party can alter that legal relation.
Legitimation of Child — Evidence of Written Acknov/ledgTnent. — The
court held on the whole case that the evidence established a statutory
adoption and acknowledgment, but that the case of plaintiff so far
as it depended on a so-called "adoption paper" was not made out.
The proof was ample otherwise.
Contest as to heirship under section 1664, Code of Civil
Procedure.
W, H. H. Hart, attorney for plaintiff.
McAllister & Bergin, John H. Boalt and W. W. Foote,
of counsel for plaintiff.
Edward Robeson Taylor, representing absentees, by ap-
pointment.
McKoon & Towle, for the "Blythe Company."
S. W. Holladay and E. B. Holladay, for the "Kentucky
Blythes."
T. J. Lyons and associates, for the "Savage Heirs."
Harvey S. Brown, for the "Williams Heirs."
L. E. Bulkeley, for the "English Savages."
H. E. Highton and E. D. Wheeler, for Alice Edith Diek-
ason Blythe, alleged widow of decedent.
And various other attorneys for other claimants.
CHARACTER OF THE ACTION.
COFFEY, J. This is an action instituted under section
1664 of the Code of Civil Procedure (approved March 18,
1885) by the plaintiff, a minor, through her guardian, to
determine the heirship and title to the estate of Thomas H.
Blythe, deceased ; which section provides that in all estates
now being administered, or that may hereafter be adminis-
tered, any person claiming to be heir to the deceased, or en-
70 Coffey's Probate Decisions, Vol. 4.
titled to distribution in whole or in any part of such estate,
may, at any time after the expiration of one year from the
issuing of letters testamentary or of administration upon such
estate, file a petition in the matter of such estate, praying the
court to ascertain^nd declare the rights of all persons to said
estate and all interests therein, and to whom distribution
thereof should be made.
Plaintiff in due season filed her complaint setting forth the
facts of her claim of heirship in the estate, and thereafter, in
the time required by the statute, certain defendants, whose
claims are hereinafter to be considered, appeared and made
answer, traversing the pretensions of plaintiff to be the child
and heir of decedent, and alleging that she was the offspring
of one Joseph James Ashcroft and his wife, Julia Ashcroft,
nee Perry, and by way of cross -complaint averring respec-
tively their own claims to heirship, owuer.ship or interest in
the estate ; and all of these counterclaims and allegations have
been in turn denied by plaintiff, and other parties summoned
as defendants made default duly entered on the record.
The trial of the issues thus joined between the parties liti-
gant began on the 15th of July. 1889. before the court, with-
out a jury, an express waiver of a jury having been made in
open court.
the plaintiff's claim.
The substance of plaintiff's claim, as stated in her com-
plaint (second amended complaint, filed April 26, 1887, and
amendments to second amended complaint, filed September
11, 1889), is that said Florence Blythe was born on the eigh-
teenth day of December, 1873, and that on July 11, 1883, and
prior thereto and since, and now is a resident of this city and
county and state ; that the said Thomas H. Blythe was a citi-
zen and resident of this state and of the United States from
August 31, 1855, up to the time of his death, on the fourth
day of April, 1883 ; that at the time of his death said Blythe
owned and possessed certain real property described in said
complaint; that on the twelfth day of June, 1883, letters of
administration were issued on said estate to Philip A. Roach,
who duly qualified as administrator, and who was acting as
such at the time of the filing of her complaint; that neither
Estate op Blythe. 71
the whole nor any part of the estate has been distributed ; nor
had any proceedings for final distribution been had; that at
the time of the death of the said Blythe the said Florence was
and she still is the only child and daughter and only living
offspring of said Blythe, and his sole heir at law, and as such
was and is entitled to have and receive on distribution the
entire estate and property of said Blythe, deceased, whereso-
ever the same may be situated; that said Blythe left him
surviving no wife, no father, no mother, no brother, no sister,
no next of kin, nor child save the said Florence.
acknowledgment and adoption asserted.
After reciting the proceedings in court pursuant to the
notice given as required by statute, section 1664, Code of
Civil Procedure, and the names of the parties defendant who
appear as claimants in opposition to her claim, plaintiff avers
that she was born and is the only child of said Blythe ; that
he was her father; that he was never married; that said
Blythe, in his lifetime, in the state of California, by a certain
instrument in writing duly made and executed, signed and
subscribed by him in the presence of a competent witness, did
declare : "That whereas I, the undersigned, Thomas H. Blythe,
am the father of Florence Blythe, a little girl nine years of age
last December, who now resides with her grandfather, James
C. Perry, at Manchester, England; and, whereas, I am not
married and have no family but myself and daughter; and,
whereas, some question may hereafter arise, in case of my
death, as to whether or not my daughter, the said Florence
Blythe, is legitimate ; and, whereas, I desire my said daughter
Florence to inherit my property, and for that purpose, and
to forever settle the question of her legitimacy, I do hereby
make, sign and execute this document, in the presence of a
competent witness, for that purpose, and I hereby certify and
declare that the said Florence Blythe is my daughter and
child, and the issue of my body; that I have always publicly
acknowledged her as such, supported and treated her as if
legitimate, and I now declare and acknowledge myself to be
the father of said Florence Blythe, and declare her to be my
daughter, and this instrument in writing is made for the
72 Coffey's Probate Decisions, Vol. 4.
purpose of making her legitimate beyond question; and for
the purpose of making her the heir of my person and body,
that she may and shall inherit my property"; which instru-
ment in writing was not, at the time of filing the complaint,
in the custody o;r possession of plaintiff, and she does not
know where the same is, and cannot procure the same; but
states the substance and effect as fully, distinctly and clearly
as it is in her power to do ; and plaintiff avers that at various
different times, and by other instruments in writing signed
and subscribed by said Blythe in his lifetime in the state of
California in the presence of competent witnesses, he did ac-
knowledge the plaintiff to be his child and that he was her
father ; and that such instruments were made for the purpose
of making her his heir, but plaintiff has not such instruments,
nor any of the same, or any copy of the same, and for that
reason she was unable to insert the same or a copy thereof in
her complaint, and averred their substance on information
and belief; that said Blythe, having no family, did, within
the state of California, after the birth of plaintiff, and pre-
vious to his death, publicly acknowledge and declare her to
be his own and only child and daughter, and did support,
maintain and educate her as his child, and did otherwise treat
her as if she were his legitimate child.
Subsequently plaintiff, by leave of court, amended the com-
plaint (second amended complaint) by setting forth certain
writings of various dates, signed and subscribed by said
Blythe, by which it is claimed that he, in presence of a com-
petent witness, did acknowledge plaintiff to be his child, and
that he was her father. These writings, hereinafter to be
referred to, are in the form of letters, and are known in the
record of this controversy as Plaintiff's Exhibits 52a, 54, 61a,
68ab, which four letters, it is claimed, in and of themselves
constitute an absolute and complete adoption of the plaintiff
by the decedent.
In dealing with the evidence, the fact first to be ascertained
is the paternity, and it must be established bA' plenary proof
that plaintiff claimant sprang from the loins of Thomas H.
Blythe, and was not the offspring of Joseph James Ashcroft,
and the court will primarily proceed to the determination of
this issue.
Estate of Blythe. .73
THE paternity OP PLAINTIFF.
The question upon the pleadings and proofs is: Was
Thomas H. Blythe the father of this child, or was Joseph
James Ashcroft? The inquiry is limited by the pleadings to
this issue. I shall consider first the story of Mrs. Julia Ash-
croft, as given in evidence in this trial, July, 1889, at which
time she testified, in substance, that she was thirty-six years of
age, born in Bristol, England; her father was James Crisp
Perry; her mother died in 1876; in the year 1873 she lived
in Upper Westbourne Terrace, London; first met decedent
Blythe in Westbourne Grove ; she was walking along on her
way home, looking in shop windows; she noticed a man fol-
lowing her; he followed her a long way, and finally spoke to
her; he asked her if she was admiring the things in the win-
dow ; she did not answer him at first, and he spoke again ; he
asked her if she would allow him to walk with her; in answer
to her question, "What for?" he said he had taken a fancy
to her and admired her; they walked along Westbourne
Grove, a street very much like Market street in San Francisco,
a broad street with many shops or stores ; they walked to the
end of the street ; she crossed to go home ; he asked her to meet
him again the next week, on a specified date, on a Friday, and
he gave his name as Thomas H. Blythe. The first meeting
was on a Thursday, 25th of February, 1873 ; the second meet-
ing was on the Friday afternoon of the following week, when
they took a stroll in Hyde Park for about an hour and had
some ordinary conversation, Blythe expressing his admiration
for her. Subsequently they met a week after that in pur-
suance of an arrangement between them to take a walk,
which they did in the same park in the afternoon between 2
and 4 o'clock, at which latter hour she had to go home. These
strolls with him in the park continued for about a month, and
finally he gave her his address, Thomas H. Blythe, 10 Noth-
ingham place, Marylebone, written on a piece of paper which
he tore out of his pocketbook in her presence (Plaintiff's Ex-
hibit 23), ''T. H. Blythe, 10 Nothingham place, Marylebone."
She saw him next on Sunday, March 16, 1873, at the address
No. 10 Nothingham place, Marylebone, his place of residence.
She found his room by this address: he had asked her to come
and take lunch with him: she went and had some wine and
74 Coffey's Probate Decisions, Vol. 4,
cake, and while there he seduced her under promise of mar-
riage. After that she visited him, when he sent for her,
about once a week. After she had been there once, when
she left he would tell her to come again. One of the letters
produced and marked Plaintiff's Exhibit 24:
"Tuesday, 10 P. M.
"My Dear Juliet: Having been out of town for the last
three days, your letter came not to hand until this morning.
I found it impossible to call upon j'ou this afternoon, and it
is not likely that I shall have an afternoon at my disposal dur-
ing this week. Next week I expect to be more at liberty, when
it will give me great pleasure to call upon you.
"With kindest wishes,
"Yours most sincerely,
"H. BLYTHE."
— which letter she received through the mail at No. 10 Charles
street, to which place she had removed. There was no other
Miss Perry residing there. She received other letters while
there, one of which with its accompanying envelope she iden-
tifies as received through the mail (Plaintiff's Exhibits 25 and
25a), which reads as follows:
"Monday, June 23d.
"My dear Juliet: Should you not be specially engaged to-
morrow, Tuesday, please drop in with a view to joining me in
a glass of wine and cake ; shall be at home at 2 P. M., and will
be much pleased to see you.
"With kindest wishes,
"T. H. BLYTHE."
She fulfilled the request contained in this letter, went to
10 Nothingham place and found there Mr. Blythe and had
cake and wine with him. She recognized another envelope
and letter in the handwriting of the deceased, which she re-
ceived through the mail (Plaintiff's Exhibits 26 and 26a) ;
letter addressed ]\Iiss Julia Perry, 10 Charles street, Knights-
bridge, reading as follows:
"10 Nothingham street, July 26, 1873.
"My Dear Julia: I expect to leave town this afternoon, and
remain away until Tuesday, so you will please not to come to-
Estate op Blythe. 75
morrow. I sliall be at home to-morrow week, August 3J, and
shall be ver}'- much pleased to see you.
"With much affection,
"THOMAS H. BLYTHE."
She went to see him on the 3d of August in compliance with
the suggestion in that letter. Another letter she recognized
as in his handwriting which she received through the mail at
10 Charles street, Plaintiff 's Exhibit 27a, which letter is as
follows :
"10 Nothingham place, August 23d.
"My Dear Julia: I will call upon j'ou on Monday next
about 2 o'clock P. M. I have been confined within doors for
the last twelve days owing to a bad cold and influenza of the
eyes — inflammation I guess it is — or should have called earlier.
"With much affection, dear Julia,
"T. H. BLYTHE."
Blythe called upon her in pursuance of the statement in
that letter, at 10 Charles street. Knightsbridge.
She recognized the handwriting of another letter of dece-
dent received through the mail, inclosing a card photograph
(Plaintiff's Exhibit 28a and 28b), the envelope (Plaintiff's
Exhibit 28) superscribed, "Miss Perry, 10 Charles street,
Knightsbridge"; the writer had promised her a photograph
and she reminded him of it and he sent her this (Plaintiff's
Exhibit 28b) in pursuance of that promise; this was a photo-
graph of Thomas H. Blythe; the letter is as follows:
"August 27, '73.
"My dear Juliet: At your request I inclose a photo. With
kindest affection,
"T. H. BLYTHE— in great haste."
Another letter and envelope she recognized as in his hand-
writing, received by her through the mail (Plaintiff's Ex-
hibit 29 and 29a), addressed to "Mrs. Wilmot, 10 Charles
street, Trevor square, Knightsbridge, London," the letter
reading:
"San Francisco, January 25, 1874.
"My Dear Julia: Your letter announcing the arrival of the
little stranger came safe to hands, and I am glad to learn you
got over your trouble safely. Enclosed you will find one-half
76 Coffey's Probate Decisions, Vol. 4.
of a ten-pound Bank of England note ; on receipt of your let-
ter acknowledging the receipt of the same I shall send you
the other half. The amount I first proposed to give you can
depend upon receiving. Send more details in regard to baby,
etc., in your next letter. With kindest regards to your mother.
"With best wishes,
"Yours most sincerely,
"T. H. BLYTHE."
Every time she met Blythe they cohabited and the result
of that cohabitation was the birth of a girl child, Florence
Blythe, on the 18th of December, 1873. Witness testified fur-
ther that during the year 1873 she had no connection with
any other man than Thomas H. Blythe. Two weeks after the
child was bom she wrote a letter to him, to which Plaintiff's
Exhibit No. 29a was an answer, addressed to Pioneer Hall,
San Francisco. The substance of the letter was that a daugh-
ter was born, and the time of the birth; she had told him
while he was in London that she was with child in April, 1873.
at her mother's house, and he said in the presence of her
mother he was very sorry he got her into this trouble, but he
was going to marry her; he wrote on a piece of paper the
name the child should have; the paper is the one marked
Plaintiff's Exhibit 30 and 30yo, and reads (Plaintiff's Ex-
hibit 30) :
"Mrs. Wilmot:
"Vernon Wilmot (if a boy).
"Flora (if a girl).
"T. H. BLYTHE."
PLAINTIFF'S EXHIBIT 301/2.
Pioneer Hall,
San Francisco, California.
The name "Mrs. Wilmot" was the one he wished her to go
by until he married her; she cut the address off (Exhibit
3014) to conceal it from her husband, Ashcroft; aU. of it was
written at the same time, the first time that he came to her
mother's house; he was there three times; he said he would
marry her before he went to California, but business called
him away and he then said he would marry her on his return,
before the child would be born; she called the child "Flora"
Estate of Blythe. 77
for short, but she was baptized by the name of Florence ; there
was in the letter (Plaintiff's Exhibit 29) a half of a ten-pound
note, as stated therein ; when Blythe left England he left £20
for her with her mother, and told her to get the best doctor
she could, but he would be back in time for the birth ; she re-
ceived through the mail the envelope and letter marked Plain-
tiff's Exhibit 31, 31a, addressed to "Mrs. Wilmot, 10 Charles
street, Trevor Square, Knightsbridge, London"; letter dated
March 19, 1874, a^ follows:
PLAINTIFF'S EXHIBIT 31A.
San Francisco, March 19, 1874.
My Dear Juliet : Inclosed you will pleas find the other half
of the note. I am glad to learn that both yourself and young
mademoiselle are doing well. Have baby's photo taken and
send me a copy in your next letter. Kindest regards to your
mother and best wishes for yourself.
Very sincerely,
T. H. BLYTHE.
The Plaintift^s Exhibits 2, 3, 4, 5, 6, 7 are photographs of
the plaintiff Florence as a child; the letters and envelope
marked respectively Plaintiff's Exhibits 32, 32a, 33, 33a, 34,
34a, 35, 35a, 36, 36a she recognizes as in the handwriting of
Blythe, addressed to "Mrs. Wilmot, 88 Church street, Chel-
sea, London," and were received through the mail by her at
that address; she had moved from'Charles street. These let-
ters are as follows, in the order of their succession :
PLAINTIFF'S EXHIBIT 32A.
San Francisco, June 1, 1874.
My Dear Julia: I hereby inclose you one-half of another
ten-pound note and will send the corresponding half upon
the receipt of your letter acknowledging the receipt of this
half. My return to England is as yet undecided, but I shall
continue to send the yearly allowance in this way for the
present.
With kindest regard to your mother and hoping baby and
yourself are well, I remain very sincerel3%
T. H. BLYTHE.
78 Coffey's Probate Decisions, Vol. 4.
PLAINTIFF'S EXHIBIT 33A.
San Francisco. August 4, 1874.
My Dear Julia: The baby's photo came safe to hands. Of
course I cannot tell whether it is a good resemblance of her or
not. I should like to have another photo taken of her as soon
as convenient.
Inclosed you will find the other halfs of the two notes.
Business matters will detain me here some time longer, and
hence am not able to say when I shall return to London.
Remember me very kindly to your mother and kiss baby for
me. With kindest wishes,
T. H. BLYTHE.
PLAINTIFF'S EXHIBIT 34A.
San Francisco, November 26, 1874.
My Dear Juliett: Inclosed you will find a five-pound note,
which makes one pound less than the full year's allowance.
The future remittance will be forwarded as heretofore. I
have not yet decided as to the time of my return to London.
Send another photo of little Flo, kiss her for me and accus-
tom her to say papa instead of "dad." Kindest wishes to
yourself and mother. Very sincerely,
T. H. BLYTHE.
PLAINTIFF'S EXHIBIT 35A.
San Francisco, March 10, 1875.
My Dear Julia: Inclosed you will please find a Bank of
England note for ten pounds sterling, which I hope will arrive
safe.
I am a little disappointed at not receiving another photo of
little Flo. I hope you will not disappoint me in your next
letter. I have been very much occupied with important mat-
ters of late, and am not yet able to say when I shall start from
here for London.
Give my kind regards to your mother and kiss little Flo on
my account, and with kindest wishes for yourself. Most sin-
cerely yours,
THOMAS H. BLYTHE.
Estate of Blythe. 79
PLAINTIFF'S EXHIBIT 36A.
Blue Jacket Mining Company,
Superintendent's Office,
Blythe City, Nev., Dec. 4, 1875.
My Dear Julia : Not receiving an answer to the last remit-
tance sent, I concluded that something unexpected had hap-
pened ; and were it not for very untoward circumstances that
called me where I now am, I should have been in London
months ago to see to affairs personally. I happened unfor-
tunately to be the President and principle owner in the above-
named mine and Compe. The mine has always been supposed
to be very rich mine ; but some how or other, through bad
management by successive Superintendents, things have not
been doing well for the last ten months. Under the circum-
stances I concluded to come up my self and examine things
personally. This is the eighth week since my arrival here.
Your letter was sent here after me. I do not expect to get
to San Francisco until after Christmas. When I get there I
will send to you a remittance; I cannot do it from here. This
is a small town (named Blythe City in compliment to mj'^self),
some 7000 feet above the level of the sea. It is situated in the
State of Nevada, thirty-four hours by rail, and then over two
days, at this time of year, by stage. It commenced to snow
here on the 27th October, and it has snowed about % of the
whole time since. Kiss little Flo, and give best regards to
your dear mother. Very affection yours,
THOMAS H. BLYTHE.
"Witness further testified that her mother died January 19,
1876, and she wrote to Blythe to that effect, (and Plaintiff's
Exhibit 37a), a letter was received by her through the mail
in reply:
PLAINTIFF'S EXHIBIT 37A.
San Francisco, March 14, 1876.
Dear Julia: My return here was delayed much beyond the
time expected when I last wrote you. Your letter announc-
ing your deep bereavement, in the death of your dear mother,
has been received. Accept my kindest sympathy and condo-
lence in your great loss. The envelope you inclosed in your
80 Coffey's Probate Decisions, Vol. 4.
letter with your address is as follows: "Mrs. Wilmot, 9G
Great Ancoats street, Manchester, London." The same ad-
dress is at the head of your letter. But at the close of your
letter it is "Mrs. Wilmot, 96 Great Ancoats, Manchester."
Of course there must be a mistake somewhere, and therefore
I did not think It prudent to send you money to either of the
addresses for fear it would have been lost. Upon receipt of
this send me the correct direction at once and I will remit to
you by return of post. I send two copies of this letter — one
to "96 Great Ancoats, Manchester, England," and one to "96
Great Ancoats, Manchester, London, " as it is on the envelope,
in the hope that one of them will find you. With kindest
wishes, TPIOS. H. BLYTHB.
P. S. — Be sure that you send the correct direction this time.
The enclosed envelope was addressed in mistake "Man-
chester" instead of "London," owing to her being worried
on account of her mother's death at the time she wrote, and
she put "Manchester" for "London": the "London" on an
envelope inclosed to him had no business to be there; she re-
ceived the letter and envelope marked "Plaintiff's Exhibit
38, 38a," through the mail at Manchester; the envelope was
addressed "Mrs. Wilmot, 96 Great Ancoat street, Manchester,
London."
Plaintiff's Exhibit 38a is an almost literal copy of Exhibit
37a, foregoing.
The letter (Plaintiff's Exhibit 39a) was received by her
through the mail inclosed in an envelope, the superscription
of which was in her handwriting: "Mrs. Wilmot, 27 Judd
street, Euston Road, London, Eng.," to which place she had
moved from Manchester. She sent the envelope inclosed in a
letter to Blythe, to which this was a response:
PLAINTIFF'S EXHIBIT 39A.
San Francisco, May 15, 1876.
My Dear Julia: Inclosed please find a twenty-pound note.
I expected long ere this to be able to visit England this fall,
but have to abandon all such hopes for the present. Possibly
I may be able to come over early next year; until then you
will please to use your own judgment as to little Flora and
Estate of Blytiib. 81
consider that her yearly allowance from the first of the month
is to be at the rate of thirty pounds sterling. The various
enterprise in which I am now engaged taxes my time and
strength to the very utmost and I require a change and rest.
Lots of kisses for Flora and kind wishes for yourself.
Very truly yours,
THOS. H. BLYTHE.
There was a twenty-pound note inclosed in that letter; she
received through the mail the letter, Plaintiff's Exhibit 40a,
inclosed in an envelope addressed: "Mrs. Wilmot, 16 Sid-
mouth street, Gray's Inn road, London, England," both in
Blythe's handwriting:
PLAINTIFF'S EXHIBIT 40A\
San Francisco, February 5, 1877.
My Dear Julia: Inclosed please find a bank-note for 10
sterling. Upon receipt of an acknowledgment I will send you
another of the same amount, accompanied with explanations
for this long delay. Send a photo of Flo if you have a late
one. I am well, but dreadfully overworked. Too many ex-
tensive enterprises to managed. Lots of kisses for Flo and
kind wishes. Very truly,
THOS. H. BLYTHE.
She was married at the time she received this letter. She
received through the mail the letter and envelope, both in
Blythe's handwriting, inclosing a ten-pound note. This is
Plaintiff's Exhibit 41a:
PLAINTIFF'S EXHIBIT 41 Al.
San Francisco, June 4, '77.
My Dear Julia: Your letter of the 4 March, including th§
photos, was received safe. Thanks for the photos, and believe
that I am glad to learn that yourself and Florence are well.
Inclosed please find a ten-pound Bank of England note, upon
the receipt of which you will please drop me a line in acknowl-
edgment. Business matters still continue so paramountly
pressing as to render my prospects to visit England in ap-
Prob. Dec, Vol. IV — 6
82 Coffey's Pkobate Decisions, Vol. 4.
pearance, at least, as remote as they were twelve montlis ago.
Kiss Flo for me and accept kind wishes j^ourself .
HARRY BLYTHE.
In like manner she received the letters (Plaintiff's Exhibit
42 and Exhibit 43), the envelopes to which she thinks were
lost:
PLAINTIFF'S EXHIBIT 42.
7241/^ Market St., San Francisco.
Dear Julia : I have received no answer to my last letter, and
being a little uncertain about matters, I have enclosed only
a five instead of a ten-pound note. Let me hear from you at
once, and in future address my letters to my office, 724V2
Market street, San Francisco, California. I hope both your-
self and little Flo are well. Kiss her for me. Write by re-
turn and I will send you the balance of the money. With
kindest wishes,
THOS. H. BLYTHE.
724% Market street, San Francisco, California, U. S.
PLAINTIFF'S EXHIBIT 43.
San Francisco, October 13, 1877.
Dear Julia: It is very strange I do not hear from you. I
begin to question now if some one here has not written to you
and misinformed you of something. If you have received a
letter from any one here send me the letter right off and ad-
dress in future as I instructed in my last letter — to Thos. H.
Blythe, 724^2 Market street, San Francisco, California, U.
S. A.
The letter (Plaintiff's Ex. 44a). inclosed in an envelope
(Plaintiff's Ex. 44), she received through the mail, addressed
to "Mrs. AVilmot, 21 Holden street, Shaftesbury Park, Wands-
worth, London, England," where she was then residing:
PLAINTIFF'S EXHIBIT 44A.
7241/2 Market Street, San Francisco,
November 19, 1877.
My Dear Julia : Your letter of the 28th of September came
safe to hands. I was up in the mountains on business when
Estate of Blythe. 83
it came or would have answered sooner. I enclose in this let-
ter, which I purpose to register, two five-pound Bank of Eng-
land notes. I will send you more very soon. Tell me how
much money it would require to get you a millinery shop. I
will try to aid you get one by and by. Hoping yourself and
Flo are well, with kindest wishes,
Yours truly,
THOS. H. BLYTHE.
Kiss Flora for me.
There were two five-pound Bank of England notes inclosed
in this letter; the letter and envelope (Plaintiff's Exhibit 45
and 45a) were received by her through the mail at the ad-
dress on the envelope, "Mrs. Wilmot, 52 Union street, Ply-
mouth, South Devon, England," her father's address, where
she was at that time :
PLAINTIFF'S EXHIBIT 45A.
San Francisco, 7241/2 Market St., July 23, 1878.
My Dear Julia: Your last letter, without date, received.
I am glad to learn that yourself and Flora are well. There
are here in San Francisco a gang of swindlers who have for
the last twelve months been trying by conspiracy together
to do me great mischief, and I have been informed that they
have written to you making some kind of propositions. I
requested you in one of my letters to let me know what they
had written to you, and for you to send their communication
here to me. You never complied with my request. I have
not written to you oftener for that reason. Enclosed you will
find two ten-pound Bank of England notes, and it will be
last I shall send you unless you comply with my request and
let me know what those people wrote you, and also send their
communications here to me.
Your THOS. H. BLYTHE.
In this letter there were two ten-pound Bank of England
notes; she thinks she received another letter, but is not sure;
the last time she saw Blythe was August 24th or 25th, 1873.
She did not communicate to her father the fact that Flor-
ence had been born because she did not like to ; she went to
Manchester about a week after her mother's death and left
84 Coffey's Pkobate Decisions, Vol. 4.
Florence in charge of Mrs. Sarah Bailey, the nurse ; afterward
came to London and went to her father's house — he was there
Avith his housekeeper, Miss Kate Beadle, who afterward was
married to him ; they were all together for two or three weeks
or more; the child was with them; the father of the witness,
James Crisp Perry, was a vender of patent medicines; she
remained with him in different places of bi^isiness until she
married Joseph James Ashcroft; the child was not with her
all the time — she was with Mr. Perry the best part of the
time, was with her occasionally ; her husband was cruel to the
witness and beat her and was dissipated, and she thought it
better the child should stay with Mr. Perry ; her husband did
not like Florence; he knew that she had the child before she
was married; the witness recognized Plaintiff's Exhibit 18,
letter and envelope, as in her handwriting — envelope ad-
dressed "T. H. Blythe, Esq., 7241/2 Market street, San Fran-
cisco, California ' ' ; letter as follows :
PLAINTIFF'S EXHIBIT 18A.
36 Dorset Street, Portman Square, London,
April 6, 1880.
Dear Mr. Blythe: I am verj^ much surprised at your not
answering my letter. It is now two years since I had any
money from you, and I have your letter where you promised
to allow me 30 pounds a year, and I hope you do not intend
to stop it, as you know that Florry is a big girl now and I
cannot afforde to keep her, and I shall have to put it into
my solicitor's hands, Mr. Blythe, if you do not send, as you
have no reason to stop it, and I do not wish to give you any
trouble if I can help it. I have not been able to send Florry
to school, as I have not had the money to do so. Florry sends
her kind love to papa and would like to see him. Hoping
this will find you quite well, Florry and myself are both quite
well.
Please answer by return of post, as I am badly in want of
money. "With kind regards, I remain, yours truly,
MRS. WILMOT.
Address — Mrs. Wilraot, c/o Mrs. Ashcroft, 36 Dorset street,
Portman Square, London, England.
Estate op Blythe. 85
"Witness testified that she wrote that letter because her hus-
band made her do soj he stood at the table with a stick in
his hand and said he would beat her if she did not do it; he
wanted the money ; he was too lazy to work ; he went with her
to the postoffice to see that she put it in ; the letter is regis-
tered early in May, but she could not account for that ; she
put it in the post the next day; the card photographs (Plain-
tiff's Exhibits 2-7) were taken after the child left her; she
recognized them as pictures of Florence; her husband's full
name was Joseph Jarnes Ashcroft ; his mother's name was Mrs.
Ellen Ashcroft; her daughter was Nellie Ashcroft; witness'
husband was of light complexion, hair dark, eyes blue; she is
not sure about color of eyes; first knew her husband's mother
before marriage; went with him to see Mrs. Ashcroft; knew
Samuel Webb and wife; think they lived above her on Dor-
set street ; knew George James Shiells, a little, not much, and
his wife; he was introduced to her by her husband; this was
not in 1872 ; she was perfectly confident of that ; he was not
introduced to her as a distinguished foreigner; her husband
merely said, "Mrs. Ashcroft, Mr. Shiells"; she did not then
inquire where he came from or who he was; she never told
Mr. or Mrs. Shiells that Flora was Jo Ashcroft 's child ; never
told Mrs. Ellen Ashcroft that the child's name was Flora
Kahn, and that she was the child of Kate Beadle and her
father, Mr, Perry, who was then going under the name of
Kahn; he used to do business in that name; she never told
Mrs. Ellen Ashcroft, between 1877 and 1880, that Jo was the
father of Flora, nor did she say that to anyone else at any
time or place; the name that was given at the registration of
the child's birth was Flora Blythe; "Flora" is the short name
for "Florence"; she did not see the child from 1880 until
after Mr. Blythe died; the child was with her father, living
in Manchester; her father did not write to her during that
period, and she did not write to the child or to her father dur-
ing that time ; was not present when Florence was baptized,
nor was she notified or requested to be there; the child was
not known after her marriage by the name of "Flora Ash-
croft"; in the year 1876 the mother of witness died, and in
the latter part of that year she married; at the time of tl.^
writing of the letter dated April 6, 1880 (Plaintiff's Exhibit
86 Coffey's Probate Decisions, Vol. 4.
18), Florence was living with her; she referred to the child
in that letter as "Florry." Flora and Fiorry are the same
as Florence ; the handwriting on the reverse side of the paper
(riaintiff's Exhibit 23) was written by her, "Sunday, March
16, 1873," "Friday, March 21, 1873"; those were references
to appointment^^ made with Mr. Blythe ; with reference to
Plaintiff's Exhibit 24a, she wrote asking him to come and see
her mother; he got her into that trouble; he had promised to
marry her, and it was right that he should see her mother;
the name "Mrs. Wilmot" was originally suggested to her by
him at 10 Charles street, in presence of her mother; he said
he had got her into that trouble, but he was going to marry
her and everything would be all right ; he said he would marry
her before the child should be born ; she did not say anything
at all when he wrote down the words "Vernon "Wilmot" (on
Plaintiff's Exhibit 30) ; did not make any demand that the
marriage take place immediately; she thought he was right
and she left it with him; he told her not to worry, that he
would marry her, and she thought that that was sufficient;
she thinks she explained to Jo Ashcroft about the child in
August, 1876, at 16 Sidmouth street, Gray's Inn road, Lon-
don ; he was employed by her father in the evenings, writing ;
she told him that Florence was a little girl she had by a gentle-
man in San Francisco, and gave his name as "Thomas H.
Blythe"; there was present in the room a girl servant. Miss
Hazel; when she visited his rooms, March 16, 1873, she did
not know more about him than that he was a gentleman, and
that he said his name was Thomas H. Blythe ; she thought
she had a right to go to his rooms, as they were engaged to
be married; never visited a gentleman's rooms before; he
promised marriage first, and the act was accomplished under
promise of marriage; he told her at the time that he had no
relations; she wrote to him every time he wrote to her; she
always asked him when he was coming back ; she thought that
that was sufficient ; he understood what she meant ; she always
sent nice letters to him; she never mentioned Florence's birth
to her father before her mother's death; she did not like to
tell him, but told her mother, as she thought it was right to
tell her, she being a woman; she had a half-brother in Lon-
don; did not say anything to him or his wife about the affair;
Estate op Blythe, 87
she did not tell her half-brother's wife that she was engaged to
a gentleman, and was about to be married; this half-brother's
wife was Sarah Bailey; she was the nurse who was present
when Florence was born ; witness was nineteen or twenty years
old when she met Blythe ; she spent most of her life in Lon-
don ; she did not go much into society, was very quiet ; had
no young lady friends; sometimes conversed with the land-
lady's daughters at 10 Charles street; the landlady had three
daughters; the fam.ily of witness belonged to no church or
society, but occasionally went of a Sunday evening to some
Protestant church; Mr. Blythe gave her an engagement ring
on the Friday after he seduced her; it had an inscription,
"From Harry to Julia"; it was a turquoise set around pearls;
she lost it, do not know where ; it came off with her glove ;
she told Mrs. Sarah Bailey (the nurse referred to) it was an
engagement ring, also the landlady at 10 Charles street; it
was on her finger, and when persons observed it she explained
what it was; he never gave her any money personally before
he returned to California, she never kept any account of the
money he sent to her; she told Mrs. Webb, in Dorset street,
that Jo Ashcroft was the father of the child to shield herself,
as she did not want people to know about her affairs; but he
was not the father ; she had three children by him ; she always
treated Florence kindly while the child was with her, she
loved her. The reason why she let her go to her father, Mr.
Perry, was that her husband treated the child cruelly ; he
said he did not want to keep another gentleman's child; the
corner was torn off the letter (Plaintiff's Exhibit 40a) to keep
the address of Blythe from her husband, who had access to
her letters in the drawers ; she was never known by any other
name or names than those she has given in her testimony;
when her father sent money from the country he usually sent
it by postal order; she has no likeness of her husband; she
registered the birth of Florence Blythe herself; she gave the
name of ' ' Flora ' ' ; when she was married she was living with
Mr. and Mrs. Perry; at her marriage there were present Mrs.
Perry and David Davis ; when she went to work in 1873, she
received ten shillings a week; Florence was a full time child
when born ; she and Jo Ashcroft lived together as husband
and wife six years continuously; kept house in a good many
88 Coffey's Probate Decisions, Vol. 4.
places; moved about a good deal from place to place; lived
in Wj-ndham street, Avhen her husband died. This is in sub-
stance the story of Julia Aslicroft, as told on the stand.
How is this story borne out by other evidence in behalf of
the issue of paternity?
The deceden|;, Thomas H. Blythe, at various times and to
manj^ different persons made statements after his return from
England, and up to a time shortly prior to his death, con-
firmatory of the claim that he had had a female child born
to him in England, in circumstances corresponding to those
narrated by the witness, Julia Ashcrof t, in her testimony ; in
fact, he never expressed a doubt that he was the father of
this child except upon one occasion when, according to the
testimony of the defendant, Alice Edith Blythe, speaking in
conversation with her of some photographs of the child that
he had received from England, he said he was pleased with
the pictures and remarked that she looked as if she were well
eared for, but with regard to a cabinet picture (Plaintiff's
Exhibit 76), which he was in the habit of looking at and
studying, he seemed much annoyed at the appearance of her
mouth ; said it was too large, that his mother had a small and
pretty mouth, and he himself resembled her. He remarked
also the limbs of the girl, and said that he himself had a well-
turned ankle and rounded limbs, and that the girl was angu-
lar, to which response was made that that was natural at her
age, as the girl was growing. (See judge's manuscript notes,
volume 6, page 545, lines 12-21.)
It is claimed by counsel opposed to plaintiff (see abstract
of argument H. E. Highton, Esq., page 804 of judge's manu-
script notes, volume 9, lines 2-12) that no importance attaches
to any declaration Blythe may have made after he left Eng-
land as to being the father of the child, except as it arose
from his own knowledge : Did Blythe himself actually be-
lieve — did he have a fixed belief — that he was the father of
the child? And the same counsel claims that there is abso-
lutely no oral evidence to that effect, only the statement of
Julia Ashcroft, and she did not positively say he so believed,
she only testifies to her communications to him and his re-
sponses, five letters or notes to her from Blythe. and not one
word in any of them signifying that he believed himself to be
Estate of Blythe. 89
the father or that he had promised to marry her. 'And an-
other of the counsel opposed to plaintiff (Geo. W. Tovvle, Esq.,
page 763 of judge's manuscript notes, lines 9-25, and page
764, lines 1-4, volume 9), after stating the uncontested propo-
sition that, in dealing with the evidence, the fact of paternit}^
must be established by plenary proof that claimant sprang
from the loins of Thomas H. Blythe, says that plaintiff has
produced but one fact — but one witness — in this behalf, Jiilia
Ashcroft, and, he asks, "Who is Julia Ashcroft? and answers,
The child of James Crisp Perry, himself an illegitimate, a
man whose long life has been devoted to fraud ; and unite the
instincts of the illegitimate Perry with the immoral Mrs.
Perry, and what would be the result? That is answered, says
this counsel, in the person of the mother of the plaintiff, as
she was on the streets of London in March, 1873. What was
she? asks the same counsel, and he answers: She had formed
no female acquaintances to whom she dared refer; she had
acquired no gentleman friends to whom she dared allude; she
had been a member of no church ; had no occupation ; belonged
to no society; visited nobody and received nobody of a repu-
table kind, so far as the evidence shows; and the evidence
leads to the conclusion that from her fifteenth to her twentieth
year she was engaged with her mother in plying a business
which excluded her from intercourse with respectable society ;
it was physically possible for Julia at the time of her inter-
course with Blythe to have been pregnant by some other man ;
and, says this counsel, every feature of this plaintiff runs to
the Ashcroft family, not a single feature runs to Blythe.
The conclusion of counsel that Julia and her mother were
street-walkers is unsupported by the evidence; and that she
was a pure girl at the time she met Blythe was believed by
him, according to the statem.ents attributed to him by wit-
nesses for plaintiff. In conversation with James E. Carr (see
judge's manuscript notes, page 66, lines 2-23), Blythe spoke
about children ; witness had a little girl about eight or nine
years old, and Bb,i:he used to pay how happy he would be if
he had his little girl to play with her, in 1876 ; and again in
1879, one night at Blythe 's office in San Francisco, or in a
room adjoining his office, he talked about the child whom he
called "Flo" or his "little girl"; he spoke of receiving a let-
90 Coffey's Probate Decisions, Vol. 4.
ter from Dr. Perry, who said that the mother and her hus-
band were not giving the child the benefit of the money he
was sending; that Ashcroft was spending it for drink; Blythe
said he wished he knew some reliable family who were com-
ing out from England to bring her from Manchester, where
.';he was living^ he showed to witness the child's and the
mother's pictures; he told the witness how he first met the
mother looking in a show-window in Manchester, or some-
where, do not remember the place ; he showed witness the pic-
ture of the mother, and asked him if he did not think she was
good-looking, and asked if he found fault Avith him ; witness
said he did not, but asked him if in a case of that kind it
was not doubtful, and Blythe responded, "No; there was no
doubt at all in his mind about that part of it"; he said the
mother was a virgin before he met her ; he said he traveled
and went around enough to know ; that there was no doubt on
his mind but what the child belonged to him ; he did not doubt
it at all; that the mother was virtuous, and he had promised
to marry her and intended to fulfill it ; that he had so prom-
ised before she consented ; that always something occurred to
prevent his returning to fulfill his promise; he told witness
that the child was born soon after he left London. (See offi-
cial reporter's transcript of evidence, volume 4, pages 1113,
1114, 1115, 1116, 1117 and 1118, substantially as in judge's
manuscript notes.)
The decedent spoke to the witness, Varney, in 1875, for the
first time about a little girl; he showed the witness a little
picture, a representation of a child, a girl, about a year old.
He said it was a picture of a little girl he had in England, the
picture was on his table most of the time. Again, in April.
1876, he spoke to witness about his desire of going to Eng-
land; he spoke of a woman, the mother of the child, whose
name was Julia Perry; he said He believed he was the father
of the child; he said her name was Florence. (Judge's manu-
script notes, volume 1, pages 77, 83; ofiicial reporter's tran-
script, pages 1344, 1346, 1349, 1433, 1434, volume 5.)
Decedent talked to the witness Deasy in 1875, about a
child; a girl named Florence, he said he had in England; in
the early part of 1878, he showed this witness a photograph
of a lady and a little baby standing on a chair like Plaintiff's
Estate of Blythe. 91
Exhibit 5, and he told witness that the child was his daughter
Florence, and that the lady was at one time Miss Perry, and
then she was married to one Ashcroft; he told that he knew
it was his child; witness asked him how he knew; he said that
he had made preparations for the child before he came back
to this country; he told the witness of the story of how he
had met the mother looking into a shop-window, and he re-
lated what followed with her; he said he knew she was in
the family way before he left London. (Judge's manuscript
notes, page 86, volume 1 ; official transcript, pages 1511, 1512,
1535, 1560, 1563, 1564, volume 5.)
Decedent spoke to witness, Mrs. Sarah L. Deasy, in 1877,
about a child he had in England; this was during the Nellie
Firmin trouble; he said if he were through with his troubles
he would go to England and bring her here; he handed wit-
ness a picture, and said, "That is my child Florence, whom
I spoke to you of," and then he related all that took place
when he met the mother of the child in England, that he fol-
lowed her from window to window; he said her name was
Julia Perry ; he followed her and got her to speak with him ;
he invited her to his room, ordered wine and cake ; he volun-
teered to tell witness about the matter, and he said that the
child, whose picture he showed to witness was the fruit of that
meeting. (Judge's manuscript notes, page 96, volume 1; offi-
cial reporter's transcript, pages 1671, 1674, 1675, 1677, vol-
ume 6.)
To Milo Sydney Jeffers decedent said that he had a child
in London, that it was a girl. (Official reporter's transcript,
pages 1753, 1754, volume 6.) He spoke of having a child; he
said there was a child born in London, and that he was the
father; her name was Florence; he always spoke of her by
that name; the first conversation was in 1874; he last spoke
of her on the last day of his life, at about 4 o'clock; he said
to witness: "You will have to go and get Florence, for I never
shall be able to go." "Witness said: "I will go at any time,
provided you give me two weeks' notice"; this was April 4,
1883. (Judge's manuscript notes, page 99, volume 1.)
To Montgomery Godley, agent for the estate of John Par-
rott, deceased, the decedent said one day while they were
walking along Third street, in San Francisco, that he had a
92 Coffey's Probate Decisions, Vol. 4.
child in England whom he had never seen, and that he was
going to make some provision for her out of his property on
Market street; this occurred about a year before he died; he
said it was a girl, an illegitmiate child ; he said he was going
to provide for her out of that part of his property west of
Brooks street.,^ (Official reporter's transcript, pages 1852-
1855, volume 6; judge's manuscript notes, page 106, vol-
ume 1.)
To Thomas Drake Mathewson he said he had a little girl
in England, and showed some letters that she wrote to him;
he said her name was Florence. (Judge's manuscript notes,
page 106, volume 1; official reporter's transcript, page 1859,
volume 6.)
To Luman S. Pease, accountant for the estate of John Par-
rott, deceased (see official reporter's transcript, page 1881,
volume 6), in conversation with him in 1881 at his office,
724% Market street, he spoke of a child he had in England,
born out of wedlock, whom he was educating and to whom he
should leave the bulk of his property. (Judge's manuscript
notes, page 108, volume 1.)
The witness, George Mairs Perine (official reporter's tran-
script, page 1889, volume 6) met the decedent in 1875 or 1876,
in the office of the witness' father, N. P. Perine, with whom
Blythe had some conversation, in course of which the elder
Perine said to Blythe that he ought to take life easy and not
worry about business affairs nor involve himself in large and
complicated concerns, since he had no one to take care of but
himself, Blythe responded that he had a little daughter in
England, whose name was Florence, the elder Perine said
that he himself had a daughter whose name was Florence.
(Judge's manuscript notes, page 109, volume 2.)
To John King Luttrell, with whom he had conversations on
various subjects, he said — one occasion in the early part of
1883 — that he had a daughter in England ; that he had been a
"live" man in his day; he said her name was Florence; he
often called her "Flora"; he was educating her and intended
to provide for her. (Official reporter's transcript, page 1994,
volume 7; judge's manuscript notes, page 117, volume 2.)
To Frederick Holland Reed, civil engineer, employed by de-
cedent in 1882, Blythe said he had a daughter in England
Estate of Blythe. 93
named Florence. (Official reporter's transcript, page 2234,
volume 8; judge's manuscript notes, page 126, volume 2.)
To Charles Nathan Palmer he mentioned the fact of his
having a little girl in England, of whom he thought a great
deal; her name was Florence, and she was in Manchester
(official reporter's transcript, pages 2282, 2283, volume 8) ;
had more than one conversation with him; one in particular
vas on one morning — Sunday — on Dupont street, now Grant
avenue; he was looking at the new building occupied by the
"City of Paris," and asked witness if he admired the archi-
tecture, and he said he was going to build another like it on
the Market street corner; he said it was all for his little girl
in England; this was in 1878; he said the name of the little
girl was "Florence"; he said sometimes "Flo"; he said it
was "all for his little girl," (Judge's manuscript notes,
pages 129, 130, volume 2.)
George S. Irish, who was engaged by him to take care of
his San Diego lands, was present on one occasion in 1881, late
in the evening, when, after some talk about other matters,
Blythe was seated at his desk, and he turned around and took
out of a safe, or whatnot or chiffonier, a photograph of a little
girl, and laid it on the table and said to witness, "That is
my daughter, a picture of my little girl"; he said her name
was Florence, and that she was in England, and that her
grandfather had charge of her. (Official reporter's transcript,
pages 2293, 2298, volume 8; judge's manuscript notes, page
130, volume 2.)
To Morris M, Estee, lawyer, whom the decedent consulted
with reference to a sale which he contemplated of the east
half of the block, which was not consummated, the decedent
went into ecstasies about his enterprise in Mexico ; witness ad-
vised him that at his time of life he ought to be curtailing his
ventures instead of branching out, and also advised him not
to sell his real estate here, to which Bhi;he answered that the
west half was enough for him and his; he told the witness
that he had an illegitimate child in England, a daughter,
whose name was Florence; he said he never would sell the
western half of the block ; he said he had fixed up his affairs
and had made provision for her; this conversation took place
in the office of the witness Estee only two days, or a few days,
94 Coffey's Probate Decisions, Vol. 4,
before Blythe died. (Official reporter's transcript, pages
2321, 2322, volume 8; judge's manuscript notes, page 1321/^,
volume 2.)
To Thomas Francis Palmer (a former tenant in the Blythe
block for several years immediately prior to decedent's
death), Blythe said in one of many conversations he intended
to build up the west side of Brooks street and reserve it for
his little girl Florence. At another time, speaking of the
Colorado river lands, he said he intended making there a
home for himself and his little girl; and again, while he was
standing talking with witness in front of 7241/2 Market street,
a lady with a little girl passed, and he said, pointing to the
girl, "That girl must be about the size of Florence"; this
was about 1880 or 1881 ; the little girl looked to be five or six
years old ; he often spoke of her ; he said she was in England.
Here we have repeated oral der;] a rations on his part show-
ing that Blythe had a fixed belief that the child was his off-
spring, made, at different times and in various places up to
within almost the hour of his death ; and some of these wit-
nesses cannot be, and have not been, accused of interest or
bias of any kind in this controversy. It has not been sug-
gested from any source that the testimony of Godley, Mathew-
son. Pease, Ferine, Luttrell, Charles Nathan Palmer, Estee or
Thomas Francis Palmer was tainted in any manner; others
have been, with more or less appearance of cause, severely
criticised, but these named have escaped censure, and against
their general reputation nothing has been hinted or insin-
uated.
Let us now turn to what is offered in the way of writing in
support of the issue of paternity.
THE story op JULIA ASHCROFT,
The story of Julia Ashcroft as to their first meeting is con-
sistent and credible; the memorandum (Plaintiff's Exhibit
23), "T. H. Blythe, 10 Nothingham place, Marylebone," was
written originally by Blythe, and subsequently when it be-
came worn, written over by another hand; the testimony of
the expert Gumpel as to this exhibit is wholly unsatisfactory,
if intended to prove that the original underwritten words
were not in Blythe 's handw^riting, and is, moreover contra-
Estate op Blythe. 95
dieted by expert Hyde. (Official reporter's transcript, pages
5997-6000; judge's manuscript notes, page 332, volume 4;
o^fficial reporter's transcript, pages 5454-5'471, volume 17,
judge's manuscript notes, pages 308, 309, volume 4.) In my
judgment, after repeated and close examinations of this writ-
ing I am convinced that the original name and address was
written by the hand of Blythe, and that the statement of Mrs.
Julia Ashcroft in regard to it is truthful (official reporter's
transcript, pages 81, 82, 83, volume 1; judge's manuscript
notes, page 6, volume 1) ; and that their jfirst meeting and
intercourse was at this address on the 16th of March, 1873;
the letters, plaintiff's 24a, 25a, 26a, 27a, 28a (hereinabove
incorporated in the abstract of Julia Ashcroft 's testimony),
are all consistent with her story.
The paper (Plaintiff's Exhibit 30 and 301/2) written by
Blythe in the circumstances related by Julia Ashcroft in
April, 1873 (judge's manuscript notes, page 9, volume 1),
shows that he believed and that he had a right to believe that
he was the father of the child. Here in his own undisputed
handwriting are the directions as to the naming of the child
(Plaintiff's Exhibit 30):
Mrs. Wilmot:
Vernon Wilmot (if a boy).
Flora (if a girl). T. H. BLYTHE.
PLAINTIFF'S EXHIBIT 301/2.
Pioneer Hall,
San Francisco, California,
— and the letter, Plaintiff's Exhibit 29a, is in further substan-
tiation of his belief that the child was his; when he left
England he gave to Julia's mother twenty pounds for antici-
pated expenses ; when the birth was communicated to him he
replied inclosing a remittance:
"San Francisco, Jany. 25, 1874.
"My Dear Julia: Your letter announcing the arrival of
the little stranger came safe to hand, and I am glad to learn
you got over your trouble safely. Enclosed 3'ou will find
one-half of a ten-pound Bank of England note. On receipt of
your letter acknowledging the receipt of the same, I shall
96 Coffey's Probate Decisions, Vol. 4.
send you the other half. The amount I first proposed to give
you can depend upon receiving. Send more details in regard
to baby, etc., in your next letter. With kindest regards to
your mother. With best wishes,
"Yours most sincerely,
"T. H. BLYTHE."
The subsequent letters from San Francisco are confirmatory
of the statement of Julia that Blythe promised to return,
although they are silent on the subject of marriage, promise
or intention ; while they lack ardor of expression, they are not
devoid of concern for mother and daughter.
plaintiff's baptismal name.
In about a month from the birth of the child she was reg-
istered by the mother (Plaintiff's Exhibit 269, certificate of
registry of births) by the name "Flora Blythe"; she was
born December 18, 1873, a fulltime child, registered January
23, 1874; the name of the child is given as "Flora Blythe,"
and the name of the mother, "Julia Sophia Crisp Perry";
father's name and rank blank. The child was baptized ac-
cording to the express written wish of Thomas H. Blythe
(Plaintiff's Exhibit 52a) ; and nothing could more strongly
evidence his faith in his fatherhood than this letter:
PLAINTIFF'S EXHIBIT 52A.
San Francisco, July 15, 1881.
My Dear Mr. Perry: The Graphic received with thanks,
which reminds me of a duty unfulfilled. It is not easy to
explain in a letter the real why of this delay, and particularly
when the question of dear Flora's christening was involved.
The postponement seemed to run from day to day, thinking
the following morrow would bring more time and strength.
I look at the proposed baptism of dear Flora as a matter of
very deep importance. After full deliberation I think it
best to have Flora brought up in the Episcopal Church,
Church of England. You will therefore please have my
daughter christened at once and have her named after her
father — Florence Blythe. Although myself a skeptic as to
orthodox Christianity, yet I believe in one Supreme and that
Estate of Blythe. 97
man mentally is a triune made up of moral, intellectual and
religious elements. The non-action of either of these factors,
and the human becomes inhuman. Probably the words "De-
votional Deism" will approximately express my religious
views. If my child had been with me I should most likely
have brought her up in my own faith ; but as things stand I
shall be perfectly satisfied to have her brought up in the
Christian faith as taught in the Church of England, with its
sublime devotional service.
Neither do I wish that her tender mind shall be troubled
by any doubts on the question of faith — let her hope be full,
calm, unclouded, and serene. Faith in the Hereafter, no
matter how arrived at, is a condition necessary to the right
solution of the problem of being.
The other photo I long ago promised shall be sent by this
mail. I owe you many apologies for this delay. My health is
now better than it has been for some time. With my best
love and a great many kisses to my dear little Flora and very
best wishes for yourself and Mrs. Perry and hoping you are
all well, Very truly yours,
THOS. H. BLYTHE.
The child was baptized according to his wish, as indicated
in this letter, Florence Blythe (certificate of baptism. Plain-
tiff's Exhibit 69). The suggestion that the Perrys violated
the English statute in statements at the time of baptism can-
not alter the fact of paternity ; their offense should not oper-
ate to the injury of an innocent party.
The Plaintiff's Exhibit 67a, a letter written about a month
before his death, is important to sl\^ow that not a shadow of
doubt had crossed the mind of Thomas H. Blythe about the
paternity of the child. Envelope (Plaintiff's Exhibit 67)
addressed Florence Blythe. Letter is as follows:
PLAINTIFF'S EXHIBIT 67A.
San Francisco, February 26, 1883.
My Own Darling Child: I cannot tell you how happy it
made papa to feel upon learning that the health of darling
Florence was improving, and was also very glad to know that
3^our birthday passed off so pleasant. Would it not have been
Prob. Dec, Vol. IV— 7
r-
98 Coffey's Probate Decisions, Vol. 4.
nice if papa just dropped in on the jolly little party and
joined in all the fun ? I am sure it must be very nice to have
birthdays, with such good grandpas and grandmas around to
make nice presents. Papa also had a nice present — it was a
nice silk handkerchief, and hemmed by his own little darling
daughter. The^hemming was pretty good for a beginning.
Papa thinks that it so nice for little girls to know how to sew.
Yes, you can bring your pansy cart with you to the Colorado
river. Cousin Alice is going to take Bob and Squint there.
It is good exercise for you to play with Pussy in the lawn.
There is hardly an evening but what papa plays with Bob
and Squint with a little switch. Our cats are very well-
behaved cats, especially M^lt^n meals are being served. They
hardly ever move during meal hours. When papa sits down
to tea in the evening Bob will watch so quiet until the meal
is over and then, if papa takes the evening paper to read. Bob
still remain quiet, but as soon as I throw the paper off my
hands Bob then begins his maneuvers to coax a play and
never gives it up until he wins. Five minutes play and he is
satisfied for that evening. Cousin Alice is one of those who
cannot get a good photograph of themselves. She has not a
single photo that fairly represent her. She will try again
and I will have her to send one to her cousin far away. She
will also write you and tell her little cousin about the addition
to our household — one little dog. One mocking bird (sent
her by IMr. Andrade from Guaymas, Mexico), and also six
fowls, who have to live on the top of the roof. Alice had for
some time been in dire tribulation to get papa real fresh
eggs & so at last she concluded to get the fowls. Papa leaves
again for the Colorado river, Mexico, he will only be away
from here this time about two weeks. Papa would like to
hear from his little child verj' often. If papa does not write
often it is because he has so much to attend to. I tried to
write you this letter during the day, but could not do it, as
business matters were constantly being present to me and I
had to come to the office in the evening & have further post-
ponements. Papa sends all his love to his darling child with
a ship load of kisses, Florence papa.
THOMAS H. BLYTHE.
Estate of Blytiie. 99
The letter, Plaintifif's Exhibit 68b, envelope (Plaintiff's
Exhibit 68a) addressed "Florence Blythe," inclosed in ex-
terior envelope (Plaintiff's Exhibit 68) directed to "Mr. H.
Beach, 11 Bridge street, Deansgate, Manchester, England,"
mailed as per postmark at 1 o'clock P. M., April 3, 1883, a
few hours before his death, is almost a djung declaration of
paternity. The letter is as f ollov.s :
PLAINTIFF'S EXHIBIT 68B.
San Francisco, Cal., April 3rd, 1883.
To Florence Blythe —
My Dear Child : Papa returned to San Francisco ten days
ago in excellent good health. I felt a little disappointed in
not finding a letter from darling Florence on my return here.
Papa, you know, is very anxious about his darling little child
health. I hope to hear soon that your health is better. After
a little business matter is arranged here I shall return to the
Colorado river again, and remain there this time about six
weeks, or thereabouts. Give papa's kindest regards to your
grandpa and grandma, with earnest hope that they are in
good health. With papa love to his Darling Child
THOS. II. BLYTHE.
This letter, Plaintiff's Exhibit 54, his first to the child, he
having prior to that -time always written to the Perrys, was
written with evident care and precision, different from his
own ordinary hand, which was rapid and somewhat difficult
to decipher, and is worthy of attention, as establishing his be-
lief in paternity. It is as follows :
PLAINTIFF'S EXHIBIT 54.
San Francisco, October 21, 1881.
My Darling Child You have made your papa very happy
by writing to him your dear little letter. I have read it over
and over often, and find it very well written for a little girl,
and very glad to find you have made so much progress. But
I feel very sad to learn that my own dear child had been so
sick with the whooping cough, and her papa not being near
to comfort and help her. But your grandpa and grandn.a
are so good, and that is a great comfort to me, for they have
100 Coffey's Probate Decisions, Vol. 4.
done, and will do, all that can be done for their dear little
grandchild. You say you "wonder when you shall see your
Dear Papa." Well my dear child it is about like this, your
papa for the last few years has had great many things to at-
tend to and almost every evening on leaving his office he is
very much tire^ with too much thinking about business and
things; but he hopes to be able to sell off and get clear of
most of these business work very soon; and when he does he
will come to Manchester to see his Dear child and her grandpa
and grandma. After that your papa will leave San Francisco
for good and go to live on a large farm on the Colorado river,
near the head of the Gulf of Cortes, in IMexico, and have dear
Florence with him always. When we get there we shall have
plenty of horses and cattle and chickens and doves and ducks
and turkeys and all kind of birds; and I shall take all my
dogs there too ; and take my great big St. Bernard dog named
"General Grant," and I know when you see "General Grant"
you will like him so and he will love you so much. I tried to
write you this letter in the day, but so many people coming
in all the time I had to give it up and I came down to the
office this evening so as not to make more delay. "General
Grant" — I call him "Grant" — sleeps in my private office at
night, and he is now lying at my feet while his master is
writing his first letter to his own Darling Child far away.
People say that "Grant" is the handsomest dog on this Coast.
One word more. I should like my dear daughter to write to
her papa a letter once every month. It need not be a long
one, but just a little letter to tell me what you have done
during the month, and what progress you make, particularly
in your Music. I am very fond of music, although I do not
play myself; and you can also tell me about the health of your
dear grandpa and grandma, and other things besides. May
God bless you, my dear child. From your loving Father
THOMAS II. BLYTHE.
In this connection other letters to the child may be inserted
at this place.
One dated January 4, 1882 (Plaintiff's Exhibit 57b), in-
closed in an envelope (Plaintiff's Exhibit 57a), addressed
"Florence Blythe, " within an exterior envelope (Plaintiff's
Exhibit 57), addressed "Mr. H. Beach, 11 Bridge street,
Estate op Blythe. 101
Deansgate, Manchester, England," postmariced "San Fran-
cisco, Jan. 3, 1882, 7 P. M.," containing tAVO maps (Plain-
tiff's Exhibit 57c and 57d), reads as follows:
PLAINTIFF'S EXHIBIT 57B.
San Francisco, January 4, 1882.
My Own Dear Child: Your last dear and affectionate let-
ter, also photos, Christmas card of good wishes and the kisses,
were received the day before Christmas. They were the
source of great pleasure to your papa. The photos are very
good and the sentiments on the card are very beautiful. I
am sure you fully realize how good your dear grandma and
grandpa are to you in dressing you so nice and cosy. The
photos and the Christmas card are together on my table before
me, so that I can see them every day. The kisses I keep
locked up in my heart. It is curious, but they all come so
warm and snug all the way from Manchester. None are lost,
and they are as sweet as sweet can be. Now about Grant — I
have told him all you said, but he did not speak back, but
only looked up into my face as if he wanted to say that he
did not understand all perfectly, but kind of thought that it
was all about a little girl and her Dolly, who were far away in
Manchester. Anyhow, I told him if he Avould be a good dog
and patiently wait he should see his little mistress some day.
The book on "New Colorado" was also received, and I looked
over it in a cursory way. The * ' New Colorado ' ' meant in this
book is the State of Colorado, situated way up in the interior.
on the grand central range of mountains called the Rocky
mountains, a thousand miles away from the place where I
intend making my home. This book is written in the morbid-
extravaganza style — not for the purpose of giving correct and
useful information, but simply to meet a demand made by
a class of readers not high either in taste or thought. Some
of the pictures may be true to nature, others no doubt are
very extravagant. But the State of Colorado is certainly the
roughest State in the United States. The section of the coun-
try where I proposed making my home is situated at the
extreme northwesterly part of the Republic of Mexico, at the
head of the Gulf of Cortes and from the head of the gulf
running along the river Colorado, on each side of it, some
102 Coffey's Probate Decisions, Vol. 4,
twent}' miles in the direction of Yuma. We get to Yuma
from San Francisco by train in thirty-two hours; then from
Yuma to Port Isabel at the head of the gulf it is only sixty
miles with level road the entire distance. Within the next
few months I expect a railroad will be finished from Yuma to
Port Isabel. I have not yet fixed upon the exact spot where
I shall build my home. Our company own a very large tract
of country from which I can chose. The land is very fertile
and adapted to the growth of all semi-tropical fruit, etc., etc.,
such as oranges, grapes, lemons, sugar-cane, cotton, etc., etc.
The climate is singularly healthy. I do not think there is a
spot on the American continent so favorable for health. On
the map inclosed you will find Yuma, Port Isabel and our
company's lands marked with red pencil. Another time I
will tell you more about the country which I purpose to end
my last days. I had a photo of Grant taken about fifteen
months ago, just taken after he had been washed, with his own
collar in his mouth. He always carries his collar in his mouth
until he gets dry enough to have it put on again. With all
my love and affection, and may God bless my dear child.
Your father THOMAS H. BLYTHE.
P. S. Of course you will read this letter to your dear
grandpa and grandma, and remember your papa most kindly
to them.
PLAINTIFF'S EXHIBIT 59.
Another (Plaintiff's Exhibit 59) reads:
San Francisco, Febr5^ 10, 1882.
My Own Dear Child: I am very happy to learn that your
health is fully restored. Please tell your grandpa that I am
also very glad to find that his health is also restored ; and then
give my very kindest thanks to your grandma for the nice
New Year's card she was so good to send me. Well, I suppose
you expect your papa to feel very sorry for the mis-
fortunes that befell your little dolls. But I do not see how
I can feel so very sorry after all, when you tell me in the
same letter that little Katie was going to have a brand-new
head and the other little one was going to have a long dress
to conceal the injured foot. The dolly's doctor must be very
ingenious. I had eight dogs when I mentioned in my last let-
Estate of Blythe. 103
ter about taking them down with me to Mexico— four old
ones and four young ones. The young dogs at that time were
about four months old, and about six weeks ago all the young
ones died within eight days of each other. I was very sorry
to lose them, as they were just the kind of dogs I wished to
have for the farm on Colorado river; that left me with only
four — "General Grant," St. Bernard, large and powerful,
weighing 155 pounds; "Fannie," a large greyhound; "Alf,"
greyhound, not very large, but powerful, and a perfect
beauty. "Baron," black dog, not a white spot on him, and
next in size and power to "General Grant." The very day
I lost the last young dogs. Commodore Monasterio, on leaving
here for the City of Mexico, presented me with another young
dog, a water spaniel. Have not yet named him. So you see
they are all large dogs and no tiny ones with curly hair
among them. Perhaps you will like big dogs better than little
ones after you get better acquainted with them. You know
big dogs will always take care of little children. I shall be
very much pleased to receive the socks you intend knitting
for me. I think No. 10 will be the proper size. Of course
there is no hurry for them, so you can take your time to
knit them. The antimacassar will also be greatl}' treasured
and will not be put to use until papa's darling child comes
to live with him, so as to take care of it. I look forward to
that time with great pleasure and will hurry business all I
can to bring that day around soon. My birthday is the 30
July, and on my next birthday I shall be 60 years of age,
and I should dearly like to have you with me on that day were
it possible, but I fear it will not be possible, yet I cannot tell
for certain. You asked me if there is any little pieces of
music I would like you to learn. I am very fond of music,
particularly sacred music. But my greatest favorite of all is
a selection from the opera "Lurline" to the words, "Sweet
Spirit, Hear My Prayer." Next comes "Pleyel's Hymn"
and "Nearer, My God, to Thee"; also the grand "Old Hun-
dred." After that I like best some of the old English ballads,
such as "Auld Lang Syne," "Ora Lee" and "Old Folks at
Home." I have been very much bothered by people coming
into the office all the time while writing this letter. If you
104 Coffey's Probate Decisions, Vol. 4.
cannot read it, ask grandpa if he will not please read it for
you. Your affectionate father,
THOMAS H. BLYTHE.
PLAINTIFF'S EXHIBIT 61A.
San Francisco, May 16, 1882.
My Own Darling Child: There is an unfinished letter for
you in the safe at Papa's office Avritten about three weeks ago
which would have been mailed to you the morning after it
was written had not the Doctor ordered Papa to bed that very
same evening. The Doctor said this morning that I can be
out in three days. All the trouble was simply a slight attack
of gout in the left foot. Will write again in three or four
days. I am now writing this in bed, but Papa was afraid his
dear child might feel uneasy at the long delay, so he thought
it best to drop a few lines at once. Really the rest even in
bed will be beneficial to me and I am sure when I get out of
bed I will be in better health than I have been for some time.
Give my very best wishes to Grandpa and Grandma and say
that papa hopes Grandpa is now entirely recovered from his
late serious illness. Hoping that your health is good. From
your own loving Papa,
THOS. H. BLYTHE,
To Florence Blythe. No. 6 O'Farrell St.
Another (Plaintiff's Exhibit 64a) reads:
San Francisco, October 27, 1882.
Florence Blythe, My Own Darling Child: Your last dear
letter of October 1 came safe to hands. Papa is much pleased
Avith the evidence there found of the nice progress you are
making in writing and otherwise. I am also very glad to
learn that my dear child is enjoying good health and having
such nice time at grandpa pretty country cottage. Daily
moderate exercise in open air, with hoop or ball, or at the
skip, must be very beneficial to your health. Papa is also so
glad to find that his little darling can play with her kitten on
the lawn out of doors so much better than a play in the
house under the most favorable circumstances. I am also
glad to learn that his little darling is pleased with her new
school and having a nice companion in Miss Maclennan. Tell
Estate of Blythe. 105
grandpa and grandma that papa wishes them all kinds of
happiness in their nice little country home, and that he hopes
that the change from town to "Holly Banks" will secure the
restoration of grandpa's health. Papa's health has not been
very good lately; after being relieved of the gout his arm
and shoulder gave him some trouble, particularly in prevent-
ing him from his usual sleep at night. In every other respect
papa's health is excellent. I expect to adjust business mat-
ters here so as to leave for the Colorado river in about eight
days. I go there as a matter of business, but the change and
comparative rest, I am satisfied, will be highly beneficial for
me. It will take 34 hours from here to Yuma by rail. At
Yuma the superintendent of the settlement will meet me and
we shall drive down to Lerdo and Port Isabel in a fine thor-
oughbrace wagon. We could drive down in one day, if re-
quired, but we shall take two or three days, so as to see the
country as we go along. On my return to Yuma I might go
up the river to visit Mr. George S. Irish (my trusty and
favorite aid), provided matters in San Francisco do not press
for my return. I must not forget to tell you that we have
had an addition to our family lately. First, "George Wash-
ington Cffisar Napoleon." He was presented to Cousin Alice
by a friend of papa. When presented he was a little wee bit
of the cunningest of Scotch terriers. We kept him in the
house for a few weeks, but he grew and grew to be such a big
little rascal (he would tease and bother Bob and Squint, then
they would bite and scratch him, and there was ever so much
fuss) so papa had to send him to the office yard with Grant
and the other dogs. He and Grant became great friends and
for a long time he slept under Grant's mane. The other ad-
dition is a canary bird four months old, and papa will tell
you about him in another letter. The bird belongs to papa
Darling.
With the deepest love and affection from your father, and
lots of kisses.
THOMAS H. BLYTHE.
THE CLAIM THAT PLAINTIFF WAS THE CHILD OF JO ASHCROFT..
Let us now consider the evidence adduced in the support of
the claim that plaintiff is the offspring of Joseph James Ash-
106 Coffey's Probate Decisions, Vol. 4.
croft. It is alleged that Joseph James Asheroft was the
father of this child ; and that the foundation of the claim set
up in this action was a fraud and conspiracy on the part of
the Perrys to impose Asheroft 's offspring upon Blythe. The
fraud was primarily on the part of Julia to extort money from
Blythe by making him believe he was the father of the child.
This was her individual part of the fraud. The accusations
of conspiracy are also against the Perrys, neither of whom had
ever seen or been seen by him, and whose letters, in addition
to those of Julia, induced Blythe to write his letters to them
in which he accepted their statement of his paternity-.
If it can be shown that there was no communication or ac-
cess between Joseph James Asheroft and Julia Perry prior
to the time of her intercourse with Blythe, all this charge of
fraud and conspiracy will fall, because the issue is narrowed
by the pleadings to the two men, Blythe and Asheroft, and
no one else is in the remotest manner indicated. Mrs. Ellen
Asheroft, mother of Joseph James, testifies that she first saw
the little girl early in 1877, in Swinton street, where her son
Joseph and his wife lived; she went there on a Sunday, and
said to her son when she went into the room, accompanied by
him, his wife and her own two daughters, as the child who
was standing by a window came out from behind a curtain,
"Whose child is that? How much she is like Florrie," mean-
ing her own little girl. Jo said, "Haven't I always told you
so?" and Julia said, "It is Kate's child." No more was said
of consequence. The child was in the room behind the cur-
tains of the window, and she came from behind the curtain
into the room. Next saw her later in the summer, when they
brought her to the house of the witness. They asked her if
she would let the child stay for a bit with her as she was in
Mr. Perry's way. Had the child only a few days until they
called to ask if she could keep her a bit longer. "Witness told
them she did not care about keeping Kate's child; Jo said,
"It is not Kate's child, is it, Julia?" She said, "It is our
child." Witness said to her, "Why didn't you tell me that
before?" and Julia answered, "Because we did not like to."
Witness had the child a long time after that, could not say
how long, it might have been weeks and it might have gone
into months; the next time the child was brought was on the
Estate of Blythe. 107
31st of October, 1877 ; the reason she recollects the date was
because on that morning Percy Ashcroft was born ; her son
Joseph brought the child ; she stayed until December, 1877 ;
witness took her away in a cab to go to Plymouth to the Pad-
dington railway' station ; there were in the cab her son Jo-
seph, his wife Julia, the infant Percy, the child Florrie and
the witness; the child was always called Florrie by Joseph
and Julia; they passed by the "Sun Music Hall," and while
passing, Jo said, "Julia, do you remember that place?" Ju-
lia said, "Yes, that is where we first met"; witness asked,
"When?" Joseph said, taking the child on his lap, "That
was before she was born" (referring to the original of Plain-
tiff's Exhibits 237 and 5) ; she accompanied them on the train
and they went away; next saw the child Florrie early in 1878 ;
Jo brought her back to her house in Battersea ; there came
with him his wife Julia, and the infant Percy ; they all stayed
for three weeks; Florrie could talk then; witness heard her
speak to Joseph in the presence of his wife ; the child always
called him "papa"; when they were going to Southampton,
•witness remembered the child kissing him and saying. "I will
stop with my grandma while you go"; she never heard her
call him by any other word but "papa"; he always called
her "Florrie" or "Flora"; the child alwa^'s called witness
"grandma." and called the daughter of witness "Aunt Nel-
lie," and her sons William and Walter "Uncle"; Joseph al-
ways kissed Florrie when he came in and when he went out.
and used to play and romp with her; the child had fair com-
plexion, golden hair, light blue eyes; they went away March
25, 1878, to Southampton; Florrie was in witness' parlor in
her house when her daughter Ada died ; witness fetched the
child Florrie back from Southampton about a month after
that ; she brought her back alone ; her son Joseph had a kind
of a little shop there, drugs she thinks; stayed a few days;
Kate came while she was there and promised to give her a
dress, and she gave a little black dress, which is the one worn
by the child in the photograph (Plaintiff's Exhibit 237) ; the
child remained with witness during summer of 1878, continu-
ously ; had exclusive charge of her during that time ; her son
Joseph then fetched her back to Southampton ; did not have
her again for about a year; a servant girl of Mrs. Perry's
108 Coffey's Probate Decisions, Vol. 4.
brought her back alone; she had a letter (Williams' Ex-
hibit 14) :
WILLIAMS' EXHIBIT 14.
Mrs. Asherof t — Dear Madam : I have sent dear Flora to you
as I do not know her Mama's address, and if you will take
the dear darling you will be well rewarded for your kindness,
as I will never see her want. Should you not keep her, if
you will kindly send for Ashcroft to come to your house for
her, as it is not convenient for dear Florry to stop with us
at present. However, I hope you will see your way clear to
keep her. With kind regards, I remain,
Yours truly, KATE PERRY.
That was in November, 1879 ; she was with witness on her
birthday, December 18th, 1879; she remained until after
Christmas, 1879; Joseph took her away to the West End;
witness did not think she had the child again, except for a
day or so ; the next time she came, Mrs. Kate Perry wanted to
take her away for a holiday, but her son Joseph objected, and
took her to his own home. Then Mrs. Perry wrote witness
two letters which she wished her to forward to the mother of
the child, and then Julia brought the child down again. Will-
iams' Exhibit 15 is the letter from Mrs. Kate Perry.
WILLIAMS' EXHIBIT 15.
March 21, 1880.
Mrs. E. Ashcroft : I thank you very much for posting Julia's-
letter. I have inclosed another if you will kindly forward it
to her. All being well, I shall be in town on Tuesday and
will call upon you on Wednesday noon. Hoping it will not
inconvenience you and thanking you again for your kindness,
hoping you are better, with kind regards to Miss Ashcroft and
yourself, I remain,
Yours truly, KATE PERRY.
Did not see Florrie again; Mrs. Perry took her away; the
child had very light blue eyes, light eyelashes and eyebrows,
light golden hair, fair complexion, thin lips, her nose nice
and rather long, thin and straight, her face was rather larger
then than this girl's (the plaintiff meaning, who was pre-
sented for purpose of identification, standing up with hat re-
Estate of Blythb. 109
moved) ; and the witness stepped from the stand to the floor
beside the plaintiff, and in answer to the counsel, Dr. Edward
R. Taylor, who said, "Now, Mrs. Ashcroft, I ask you to look
carefully at the young girl standing before you, who is the
plaintiff in this case, and state to the court whether or not you
recognize her; look carefully at her"; whereupon the witness
made a careful examination of the plaintiff's features, looked
closely into her eyes, scrutinized her countenance, scanned her
in all lights, took her by the shoulder and turned her round
about, and with deliberation and in a positive manner an-
swered: "I cannot recognize her; I cannot see a feature that
I could recognize her by ; I cannot recognize a single feature.
She must have very much altered if she is the same girl that
was with me; cannot trace a feature; don't recognize her."
(Official reporter's transcript, pages 4004-4015, volume 13;
judge's manuscript notes, page 234, volume 3.)
This witness was very precise and positive in denying the
identity of the plaintiff at this point of her examination ; she
was afforded every opportunity to ascertain accurately the
fact of identity, and answered without hesitation ; she said the
little girl she knew had a pink and white complexion, a round
face with a sharp nose, was a perfectly healthy and robust
child, one she should have expected to grow into a good-sized,
healthy girl ; and when the witness was requested by the court
to describe the plaintiff as she stood before her (without any
reference to the little girl when she last saw her in 1880) , she
said she would call her eyes dark gray, black eyelashes and
brown eyebrows, brown hair, complexion not very fair; lips
pink, rather thick ; nose very nice, shorter than the little girl
witness knew in England and rather thin ; nostrils thin ;
mouth rather pouty ; this girl has a very bad set of teeth ; the
other child had small, perfectly even teeth, she hadn't shed
them then; this girl's teeth are short and uneven, and her
face is long, not round ; witness could not say that this girl
is not the one she knew nine years ago ; but she could not
recognize her at all; witness could not say the girl is not the
same person, as she was a little girl then, only six years old,
turned seven, but the witness failed to recognize a single fea-
ture. The first time she saw this girl, the plaintiff, was about
a fortnight before in the courtroom; witness came into the
110 Coffey's Probate Decisions, Vol. 4.
courtroom one day and saw her come in and go on the witness-
stand. (Official reporter's transcript, pages 4015, 4016, vol-
ume 13.)
Witness was in the room before Joseph died when Julia
was there; he asked for a pencil to write, but he could not
write, and he told witness in Julia's presence to tell Kate that
it was not for love she took the child but for money. Before
that he said they ought to be punished for taking his child
away.
This testimony was offered and introduced in support of
the defendant's hypothesis that the plaintiff here is not the
child that was kept by the witness, Mrs. Ellen Ashcroft, and
that if she w'as such child that Joseph James Ashcroft was
the father and not Thomas H. Blythe. (Statement of coun-
sel, Dr. Edw. R. Taylor, in making offer. Official reporter's
transcript, page 4021, volume 13.)
Witness saw the paper marked "Wms. Ex. 16" before and
received it through the post ; this exhibit is as follows :
WILLIAMS' EXHIBIT 16.
52 Union street, Plymouth, Jan. 9, 1878.
Dear-Mrs. Ashcroft: I have sent per S. W. Railway a small
box in which you will find a small cake that Miss Flora won
at a lottery at Christmas; it is but a small present, but it is
to show you that we appreciate your kindness to dear little
Flo when she was in need of such. The dear little child often
talks about her grandmama, and I am sure she has got every
reason to be grateful to you and your daughters for your
kindness and sympathy toward her, for it was a dreadful
thing for Ashcroft to only be married a few months and to
be in such a state of destitution as they were. Now I have
furnished another home for them, and I give Ashcroft one
pound a week and pay their rent, so if he will not try to do
now I shall never do any more for them. AVishing you every'
success in your business, I remain, dear madam yours truly,
JAMES PERRY.
Mrs. E. Ashcroft: Dear Mrs. Ashcroft, I have inclosed in
the box with Flora's cake a small tin of Devonshire cream
and a bottle of cough mixture and hope your cold will soon
Estate of Blythe. Ill
be better, and if yourself or daughters could make it con-
venient to come to Plymouth at any time I shall be very glad
to entertain you. "With kindest love from dear Flora and lots
of kisses to her grandmamma and Aunt Nellie and Aunt Ada.
Flo was delighted with the Christmas card which Auntie Nel-
lie sent her. Hoping you are all quite well as it leaves Mr.
Perry, Flo and myself. With love to yourself, Miss Nellie
and Ada, I am yours faithfully,
KATE PERRY.
Mrs Ashcroft, witness, remembers a box in her house, which
was used for Florrie's clothing — a tin box marked F. M. C.
P. ; she saw it in November, 1879, when Mrs. Perry 's servant
brought it to her ; the box is now in the same condition ; it is
Williams' Exhibit 17; it was out of her house for awhile in
1881 ; she let her son William have it then, and he has had it
ever since, and she is living with him; in 1883 Julia asked
for the box ; she said if she did not give it up she would make
her ; witness told her she would detain it for the maintenance
of the child, and she went away very cross ; she once told the
witness that the initials stood for "Flora Maud Crisp Perry"
(official reporter's transcript, page 4032, volume 13) ; witness
failed to recognize the photograph (Plaintiff's Exhibit 231),
and saw no resemblance in that picture to the child Florrie
as she left her house in 1880; witness recognized Plaintiff's
Exhibit 237 as a photo which she had herself taken of Flor-
rie; the picture, Plaintiff's Exhibit 80, was the most like
Florrie she had ever seen, the mouth resembles hers; Plain-
tiff's Exhibit 7 (card photograph) same as the other; Plain-
tiff's Exhibit 6 seems a little like Florrie; Plaintiff's Exhibit
8 is Florrie and Kate Perry; also. Plaintiff's Exhibit 77 is
Florrie and Kate Perry; that is the nearest she has seen like
lier; Plaintiff's Exhibit 96, hair exhibit, is about the color of
her hair in March, 1880, call it golden; Plaintiff's Exhibit 15,
hair exhibit, is about the same; Plaintiff's Exhibit 78, photo,
is Florrie; Plaintiff's Exhibit 256 is a picture of Florrie and
Mrs. Julia Ashcroft; witness' son Joseph died January 10
or 11, 1883 ; she was not with him when he died, and does not
remember what the doctor said he died of ; he was in bed about
two days; never heard the child "Florrie" called "Maud";
it was January 10 or 11, 1883, when her son died, but witness
112 Coffey's Probate Decisions, Vol. 4.
does not remember at what hour; Mrs. Shiells was there when
her son Joseph said it was not for the love of the child that
Kate took her away, but to make money ; witness did not un-
derstand what he meant, but thovight it was to make a dancer
^r a theatrical of the child, or something of that sort. (Offi-
cial reporter's transcript, page 4165, volume 13.)
The testimony of Mrs. Ellen Daniels, daughter of Mrs.
Ellen Ashcroft, does not merit detailed consideration, as it
is mainly corroborative of her mother, except in the particu-
lar that Mrs. Daniels said she believed that plaintiff is the
"Florrie," of whom he spoke as the child of Julia Ashcroft.
When the witness, Mrs. Ellen Ashcroft, was recalled to the
stand (October 8, 1889), a week after the time of her failure
to recognize plaintiff, she said that she had seen her several
times of late, met her in the City Hall elevator coming up-
stairs to the courtroom, and at the photographer's; she
thought she noticed in her manner and voice something of
the "Florrie" that was taken away in 1880, and as a result
of these observations of late she recognized her as the same.
Witness produced a memorandum of agreement or contract,
under the conditions of which she came to California to tes-
tify in this case. (Plaintiff's Exhibit 257.) A like memo-
randum was produced in connection with the testimony of her
daughter. (Plaintiff's Exhibit 258.) The former was to re-
ceive one guinea a week, and the latter one pound, five shil-
lings a week during the time they are detained as witnesses,
dating from the time of leaving London, and their passages
outward and return, and expenses of maintenance while so
engaged. .(Judge's manuscript notes, pages 242, 257, vol-
ume 3.)
THE testimony OP GEORGE JAMES SHIELLS.
The testimony of George James Shiells is important, as it
is designed to establish the time of the first meeting between
Joseph James Ashcroft and Julia Perry. He testifies that he
was born on the 1st of February, 1856, and after giving an
account of his whereabouts and employment until 1873, says
he worked in that year for Smith & Son, bread and biscuit
Estate of Blythe. 113
bakers, from July to December; in December, 1873, he went
to work for Chalmers; from there to Oxford street, Linscott's
bakery, and worked there about thirteen years, until 1888 ;
first became acquainted with his wife in 1873 or 1874; mar-
ried her in 1879; forgot the date; she was in Jacobs', Russell
street, Covent Garden; have had three children by her; he
did not remember the time of the birth of the first; the sec-
ond, now living (October, 1889) is twelve years old; it must
have been born in 1877 ; the first must have been born in 1876.
Witness knew Joseph James Ashcroft; became acquainted
with him in 1872, in Crown street, Soho; he was working in
a pawnbroker's shop for a man named Lewis; witness and
Jo Ashcroft were about the same age ; he was fair, about the
same height, not quite so stout (the witness' height as meas-
ured in court is five feet, five inches and almost a quarter) ;
don't recollect the color of his eyes; they were light, his hair
very fair; he was a very delicate man; his wife was much
stouter than he by a long way ; witness was introduced to him
by a young fellow, whose name he cannot recall ; Ashcroft
and witness became intimate; used to go out a great deal to
the theaters and music halls and places of amusement; used
to go to Sunday-school together in Wandsworth road; not so
often to Sunday-school as to music-halls ; witness has here
and produces letters written to him by Joseph Ashcroft, let-
ters marked Williams' Exhibits 27, 28 and 29; two of these
were received by witness, and one (Williams' Exhibit 27) by
his father; those are the only letters witness retains that were
written to him by Joseph Ashcroft; he had others, but they
are destroyed or lost; the picture, Williams' Exhibit 2, is a
picture of Jo Ashcroft. He is in the same Scotch dress re-
ferred to in the letter, Williams' Exhibit 27, which reads as
follows :
WILLIAMS' EXHIBIT 27.
80 Wandsworth Road, 1 Feb., '74.
Mr. Shiells — Sir: I was informed b}' my father that you
called for the Scotch dress. That belongs to George. I took
the Scotch dress out of pledge for 15s. %d. interest. I am
Prob. Dec, Vol. IV— 8
114 Coffey's Probate Decisions, Vol. 4.
willing to give you the things if you will give me the 15s. it
was in pledge for. I am myself very hard up, and can not
afford to lose the money.
Yours obediently,
J. ASHCROFT.
Please answer this letter, and let me know how George is
getting on.
Witness never saw that picture before now; it resembles
him very much. The letters (Williams' Exhibit 28 and 29)
read in evidence as follows:
WILLIAMS' EXHIBIT 28.
4 Islington Green, 1 March, '75.
My Dear George: I have written to Mr. Stuttle about you
have you been trying to become a Christian if not do try.
Ask Christ to forgive you your sins we know it is hard to
give up our sins but if we wish to become respectable mem-
bers of society we must try and serve the Lord who has set
before us his commandments and we must obey them if we
wish to be save Now Dear George if you will let me know
how much the man will let you have j'our overcoat for and
if he will open the door and let you have it next Sunday morn-
ing I will get the money at least I will not pay the 10 off the
watch I was going I have bought another pair of trousers
for myself which I shall bring on Sunday and you can have.
You must tell me when you write if you can be at Rupert
St. 10 o'clock Sunday and we can then go and get the coat
and we shall look respectable. I shall then want you to go
to Church with me you must not refuse or I will be greatly
offended. I have formed a scheme so that together with my
Mothers help we shall be able to open some business but I
must tell you all about that when I see you it would be too
much to write now in fact I am waisting my master's time
writing such a long one as it is but never mind I shall expect
to find you of the same oppinion when I meet you next Sun-
day as when I left last time I must now draw to a conclu-
sion first giving you a warning. Jesus says let naught of any
description cause you in any one thing what or whatever in-
significant to regret having made up your mind to follow him;
Estate op Blythe. 115
be a man George forsake all you companion Avho do you no
good give up the lusts of the Flesh and seek to become a lover
of the Lord and an inheriter of a seat in his everlasting king-
dom if not you are lost forever. With kind faithful and
Christian love I remain
Yours faithfully JOSEPH.
WILLIAMS' EXHIBIT 29.
4 Rosamond Buildings,
Islington Green, 9 March, '75.
Dear George: Having promised to write to you, I do so now.
I have not received a letter from Mr. Stuttle, and I think he
must be busy, or he would have wrote. I have a great deal
to say to you in this letter. (The first I shall commence by
reproducing the conduct of that young lady of Sunday night.
It seems strange and factious to me ; I really cannot under-
stand it. The complaint she has seems to me of quite a differ-
ent nature to what you represented it to me, as I must say,
George, that there are plenty other girls who could appre-
ciate a love that you can offer, but if you love her as I be-
lieve you do, I think that where there is love there ought not
to be such foolishness as fainting or fits. I fancy there are
more than that in it, dear George. Do not think that I say
this for any ill-feeling toward Jane, because I have not, but
I cannot say that I should regard her as a fit wife and par-
taker of George's joys or sorrows, for I think it would be a
sorry day to see you united. In fact, if this is the case be-
fore marriage, what the deuce will it be after? A sickly wife,
also consumptive children, a hard-worked husband and a com-
fortless home. What a picture ! Pause, ponder, sift. Look
at the picture that I draw. Is it not one that would make a
heart bleed, if all was to come true that I say? Now for the
bright side of the picture. Let us both try and be more spar-
ing with our money, or we shall never have enough to open
business with. It would be a great speculation. It must be
properly considered by both of us, and I must endeavor to
let Stuttle know of the matter, and perhaps he will assist me
in trying to open a point of commerce under the name of
J. J. A. & G. S. Now, dear George, let me ask you if you
116 Coffey's Probate Decisions, Vol. 4.
are any better in your faith? and keep Mr. Stuttle's words
in your mind about a mother, think of his words, how kind
and how loving, to picture a mother and child saying their
evening prayers. I hope you have not forgotten this I am
sure I have not. I quite repented of what we did after we
left the class Sunday, it was not right of us, we ought to try
and act upright. We are able now. Try and get up early
next Sunday morning, and we will go to church. I know if
you go once, you will always want to go, and then perhaps
it will be the means of making you give your heart to the
Savior. I went down on my knees and asked God to forgive
me ; try and do the same, dear George ; let us try and live
a Christian life, and then receive a crown of glor}'. Now I
must finish ; it is getting late ; I have not sent the portrait of
Agnes in this letter; I want to keep it till Sunday; I did have
a lark with it, and made her so cross; how devotedly Emily
loves me ; I cannot tell you ; any word from me she takes as
law, and does it immediately, whatever it might be; but,
George, I shall never have that love for her that I did have.
I have told her so, but she says as long as I let her love and
kiss me she is happy. But it does not make me happy to see
her go on in this strain ; I should rather see her resign to fate,
and have the Jack that first made up part at all ; she now sees
her folly and wishes to make, but I will never let her. With
kind Christian regard, I remain your affectionate brother and
friend, JOSEPH.
Excuse such a long letter. When I began I thought I
should never leave off. - J. J. A.
At the time Jo got the Scotch suit he said he was going to
see Julia Perry; witness first saw her while he was working
at Smith & Son's; saw her off Gray's Inn road or Cromer
street, near a public house called the "Silver Cup"; witness
was with Jo Ashcroft, who took him to see her; they went
there by mutual appointment ; Jo said he was going to see his
girl, and asked witness if he would like to go with him, and
thej' appointed the time ; Julia was alone on the first occasion ;
that might be in July, 1873: when they met they went for a
walk; Jo introduced them in this way, "Julia," "George";
he did not use their surnames; they took a walk around the
square; they were engaged in the walk about three-quarters
Estate op Blythe. 117
of an hour; can barely remember the conversation or that
sort of thing; parted at the end of Cromer street; Jo and
the witness bade her good-night, and each went to his respec-
tive place; next saw Julia at 16 Sidmouth street, where Perry,
then going under the name of Kahn, was living; a person
named Kate Beadle was living there and a servant in the
house; witness went there with Jo in the evening about 8
o'clock, and saw Julia and the servant girl; they went out
for a walk that night, witness taking the servant girl for a
partner, and Jo with Julia; walked around the squares; were
about one hour and a half ; Jo spoke to witness to make Julia
believe that he could speak French; walked back to 16 Sid-
mouth street ; witness parted with the servant girl and Jo
went into the house with Julia; witness walked down to the
corner of the street; waited there a quarter of an hour, and
then went away. (Official reporter's transcript, page 4878,
volume 15; judge's manuscript notes, page 284, volume 3.)
Jo told witness on one occasion that he was always very fond
of Julia, and no doubt some day he would make her his wife.
Jo showed him at another time, afterward, a carte de visite
of a baby in long clothes ; this was about 1874, outside of the
shop in Oxford street ; on another occasion Jo told him that
his mother had taken it out of his pocketbook ; next saw Julia
in 1874 or 1875, would not be certain which, when they came
up to witness' house on Gilbert street to ask witness and wife
to go to their wedding ; witness said he might be mistaken in
the date ; am positive that it is that date ; they were to be
married on Christmas night ; it was a week or a couple of
weeks before Christmas that they called to invite witness and
wife to the wedding; witness was not at home at the time,
but his wife was, and told him ; he was at work at Linscott 's,
Oxford street, at the time ; he did not go to the wedding, be-
cause he was unable, being late at work (official reporter's
transcript, page 4882, volume 15; judge's manuscript notes,
page 284, volume 3) ; afterward, in about a month or six
weeks, witness and wife and child by invitation went to visit
Julia and Jo, and found there, in Holden street. Shaftesbury
Estate, Mrs. Ellen Ashcroft and a little girl called "Flo"
and "Florrie"; Jo asked witness how he liked his little girl,
and witness told him that he thought she was a nice little girl ;
118 Coffey's Probate Decisions, Vol. 4.
he and Jo took a walk, went to the nearest public house ; wit-
ness chaffed Jo a little about the baby, and Jo turned "nasty"
with him because of the chaffing; witness did not know that
Jo had a child before marriage, and Jo intimated that it was
none of his business, or words to that effect; heard the little
girl call him "|)apa" and Mrs. Ellen Ashcroft "grandma."
After this occasion witness did not see Jo and Julia again
for a considerable time, until they came to live in Crawford
street. Witness was still working at Linscott's, and Jo was
engaged with Lewis Davis. This was in 1881 or 1882. Jo
and Julia came to the residence of witness, and stayed about
three-quarters of an hour. There was no particular conversa-
tion that he remembers, and nothing about Florrie on that
occasion. Next saw them in 18 John street, Edgeware road ;
cannot remember the date; witness is uncertain about dates
(official reporter's transcript, page 4887, volume 15; judge's
manuscript notes, page 285, volume 3) ; witness had no means
of fixing the time; he said that Kate had taken the child
away under pretense to buy her some clothes, and if he did
not get her back it would be the death of him ; he referred to
that subject again on his deathbed, and often before at their
various meetings ; he died at 16 Wyndham street, close on to
midnight, in 1882 or 1883, will not be sure which. Down to
the time of Jo's death, witness never heard the name of
Blythe ; never heard the girl called Florence Blythe ; never
heard anything further about her, nor about who her father
and mother were, than what he has already testified. (Of-
ficial reporter's transcript, pages 4889, 4890, volume 15;
judge's manuscript notes, page 285, volume 3.)
DEATH OF JO ASHCROFT.
Witness was present the night Jo Ashcroft died; he asked
for his little girl "Flo" or "Florrie"; he asked for his wife
Julia, and she came to his bedside, and he asked where "Flor-
rie" was. Julia said, "I don't know." I said, "Can't you
find her? Have you no means of finding her?" She an-
swered, "No; I have no money." He asked, "Can't you
borrow some?" She said, "No," and he said, "I wish to
see the child before I die." She replied, "You can't, be-
cause I don't know where she is." That is all Jo said at
Estate of Blythe. 119
that time; afterward witness was left with him alone, and
he said, "Julia, my wife, is pregnant, but not by me." He
asked for a piece of paper and a pencil, and he tried to write,
but did not succeed; he said, "Georye, don't cry for me; I
shall not be here long." At that time the wife of the wit-
ness was present, and he said, "Well, George, this is the last
of me; I don't know what will come of my wife and poor
Florrie," or "poor Flo," "and the other children," and the
rattles then set into his throat, and he said no more. (Official
reporter's transcript, pages 4914, 4919, volume 16; judge's
manuscript notes, pages 286, 287, volume 3.) Prior to that,
during the evening, Jo said to witness that he was badly
bruised in the legs, that he had been kicked by Julia, had
been jumped upon by her at the time they went to an even-
ing concert at the club; that when they came out they had a
few w^ords, and she threw him down and jumped on him.
Witness saw the body on the Sunday succeeding his death,
in the same room, in presence of Mr. Peacock; looked at Jo's
legs, saw bruises and showed them to Mr. Peacock. (Official
reporter's transcript, page 4920, volume 16.)
Witness has a contract for compensation for coming to Cali-
fornia (Williams' Exhibit 30) and a paper (Williams' Ex-
hibit 31), which is the "deposition" or statement referred to
in the contract. The statement was made in Liverpool, in
the office of Herbert, Lewis & Davies, solicitors. Their clerk
took it down. It was an unsworn statement; witness was in-
troduced to Julia by Joseph Ashcroft in July, 1873; fixed the
date of the introduction by reference to the "character," or
recommendation given him by Smith & Sons; that "char-
acter," or recommendation, produced by witness and exhib-
ited to the court, dated May 5, 1874, certifies that he has been
in their employ from July, 1873, to December, 1873, and was
trustworthy; it must have been July, 1873, that he first met
Julia Ashcroft, "as near as possible"; three or four weeks
after he went to work for Smith & Sons, cooks and confec-
tioners, bread and biscuit bakers; never worked for them
except during that time ; Dr. Hood first suggested to him that
he had better have the da,te of his employment from Smith
& Sons, and to date his meeting with Julia Ashcroft from
that time, and that he would be allowed to refresh his memory
120 Coffey's Probate Decisions, Vol. 4.
from that paper, the "character"; Dr. Hood made the sug-
gestion after witness made his first deposition, in 1883. at
Mrs. Chapman's house, in Croydon street, which was after
meeting Mrs. Perry, October 17, 1883; witness often talked
with Dr. Hood, and he and the doctor would have a glass of
ale together inf the public house and have a chat together;
Dr. Hood never told witness whom he represented; before
that, witness conversed with a Mr. Chalmers, a solicitor's
clerk ; he sought witness out, and through him met Dr. Hood ;
first met Dr. Hood at Mrs. Chapman's, but is not positive;
Dr. Hood said to witness that it was important that he should
fix the date of his meeting Julia first in 1873, and if witness
had any documents in his possession which would fix the date,
to keep them; Dr. Hood did not tell witness why it was im-
portant; this conversation occurred at the "Red Lion" pub-
lic house, in Duke street; thinks it was the second or third
interview; witness will not be positive, because he had so many
interviews with Dr. Hood ; it may have been two weeks from
the first time he met Dr. Hood; he cannot say exactly how
long; it was some time before he gave the statement. (Offi-
cial reporter's transcript, pages 5002-5016, volume 16; judge's
manuscript notes, page 291, volume 3.)
Witness told Dr. Hood first of the dates of the various
places at which he had worked before he had told him of his
meeting with Julia; Dr. Hood told witness that it would be
necessary for him to fix the dates of those meetings with
reference to certain dates that witness had given him; in fix-
ing the dates the witness had the assistance of Dr. Hood ; wit-
ness can 't exactly say what Dr. Hood asked him ; witness told
the doctor all he knew about Joseph (official reporter's tran-
script, pages 5020-5031, volume 16, judge's manuscript notes,
page 292, volume 3) ; witness never saw a photograph like
Williams' Exhibit 2 before he came on the stand; saw it in
a newspaper; Williams' Exhibit 27 was received by his father
and by him given to witness; he had it in his possession be-
fore his father's death; Joseph took the Scotch suit out of
pledge where either witness or his father had put it in 1873,
about twelve months before the writing of Williams' Exhibit
27. The exhibit, Williams' Exhibit 29, being handed to
witness, he is asked, "Can j^ou read that aloud?" and an-
Estate of Blythe. 121
swers, "No, because I may make a mistake or two." "Wit-
ness, under direction of counsel, proceeds to read the letter
(this is one of the letters that the wife of the witness tes-
tified had been read aloud to her daily, every day since Au-
gust 20, 1889). (See official reporter's transcript, pages 4679-
4702, volume 15; judge's manuscript notes, pages 270, 271,
272, volume 3.) Witness undertook to read this letter, but
after proceeding with a part, the court directed him to de-
sist from any further attempt; witness then said he did
not read it exactly every day ; did not remember when he first
read it to his wife ; was not sure whether it was before or after
he met Dr. Hood; read it to her before he met him (official
reporter's transcript, pages 5053-5066, volume 16; judge's
manuscript notes, pages 291, 292, volume 3) ; those letters first
came into possession of witness March 1, 1875, and have been
there ever since, except one night at Haywards, when he let
Dr. Hood have them; witness sealed them up and Dr. Hood
put them into his safe; the names "Emma" and "Agnes"
in the letter from Jo Ashcroft referred to girl friends of the
witness named Butler ; that was in 1875 ; witness was then
working at Linscott's; went there somewhere in 1874; before
that he was at Chalmers', in Little Ormond street; prior to
that in Smith & Sons', in Lamb's, Conduit street; worked in
Chalmers' only a few weeks; do not know whether Julia
Perry's mother was living or dead at the time of first meet-
ing with her; never heard her mention her mother; Jo told
witness that Kate Beadle was living at 16 Sidmouth street at
that time; Mr. Perry was then going under the name of
Kahn; that was at the time Jo was employed at his place;
witness cannot remember the year; do not know whether it
was in 1877; can't exactly remember what date it was, or the
year, when Jo was employed at 16 Sidmouth street ; had some
business with him then ; witness says that one of the reasons
why he remembers that it was July, 1873, that he first met
Julia, was at that time he was cautioned by his employers for
having remained out one night instead of coming to the shop ;
witness first knew Mr. Perry by the name of Kahn ; first met
Julia in July, 1873 ; second time was between 1874 and 1875,
the third time was close on 1876; witness is certain of those
dates; is not sure how old fie was on first meeting Julia; he
122 Coffey's Probate Decisions, Vol. 4,
was about twenty-three years old then (this was in July, 1S73 ;
he was born February 1, 1856) ; witness was sixteen or seven-
teen years old when he left the service of Baron de Tu^'ll ; a
year after <that he met Joseph Ashcroft; and two years there-
after he met Julia; the witness says that he must have been
tv,enty-one or twenty-two years old then, that was in 1873;
he cannot fix the date of the occasion when Jo told him he was
very fond of Julia, and that he intended to make her his wife ;
witness went from Smith & Sons in December, 1873, to the
coffee-shop, but remained there only a day and a half, and
while there got the "character" or recommendation; witness
was a considerable time at home before he went to work for
Chalmers; did not go direct to the coffee-shop to work after
he left Smith & Sons ; after the meeting with Julia in July,
1873, he could not venture to say how long it was before he
met Joseph alone ; sometimes they would meet b}' accident ;
sometimes they would meet every evening for several days in
succession ; sometimes weeks and months would elapse ; some-
times a year; the certificate of character or recommendation
from Smith & Sons was dated at London (Lamb's, Conduit
street), May 5, 1874, addressed to Mr. Frowd, 8 Kussell
street, Covent Garden (Williams' Exhibit, 32a) ; witness Avas
present the night Joseph died, about the 10th or 11th of Jan-
uary. 1883, when Joseph spoke to witness about the paternity
of the child of which Julia was then pregnant, the posthumous
child ; witness was alone with him ; he said that his v.if e was
pregnant, but that he was not the father of the child, and
asked for a piece of paper on which to write the name of the
man who was the father; witness took a piece off the margin
of a newspaper, but Joe could not write ; after this occurred,
the wife of the witness came in, also Julia, and a person from
above stairs; witness does not remember that Jo spoke on
religious subjects on that evening (official reporter's tran-
script, page 51G9, volume 17; judge's manuscript notes, page
297, volume 3). Witness repeated what Joseph said: He
asked to see the child and asked where "Florrie" was, and
Julia said she did not know; Jo asked, "Can't you find her?"
Julia said she had no money. He said, "Can't you borrow
some?" and Julia replied, "I have no place to borrow any."
Witness would not be sure that Jo stated that night that Dr.
Estate of Blythe. 123
Perry had the child and that Kate Perry had taken "Florrie,"
but not for love of the child, but to make money out of her.
(Official reporter's transcript, pages 5169-5172, volume 17;
judge's manuscript notes, page 297, volume 3.)
Witness first heard from Joseph James Ashcroft in 1874
that Julia Perry had had a child by him. Witness had pre-
viously testified that he did not know that Jo had a child
before marriage, and Jo had intimated that it was none of
his business. (See official reporter's transcript, page 4885,
volume 15; judge's manuscript notes, page 284, volume 3.)
It is not deemed necessary by the court to collate the testi-
mony of Mrs. Mary Jane Shiells, the wife of this witness, her
story being subordinate to his narrative. As his importance
as a witness, as has been observed, consists in establishing the
dates of meeting between Jo and Julia, it may be well to con-
sider the consistency of his statements.
THE CONSISTENCY OF SHIELLS ' STATEMENTS.
At the time the witness Shiells says he first saw her in 1873
(July), she was not living where he located her, but several
miles from there, as the exhibits (letters from Blythe to Julia,
hereinbefore recited) establish. The witness has adhered with
unwavering pertinacity to the date "July, 1873," as the time
at which he first saw her, and yet if there is one physical fact
proved in this case, it is that at that time she was not in a
condition to be walking about; she was then carrying her
child.
Apart from the denial of Julia as to the time and circum-
stances of first meeting this witness Shiells, his testimony may
be considered as it contradicts and falsifies itself. He says
that Jo told him on one occasion that he was always very
fond of Julia, and no doubt some day he would make her his
wife, and that Jo shov.'ed him at another time afterward a
carte de visite of a baby in long clothes. This was about 1874,
outside of the shop on Oxford street. Witness' wife testified
that about eighteen months or two years before his marriago
to Julia, Jo showed her and her husband, at the latter 's place
of business, a photograph of a baby, and he said, "What do
you think of my girl?" (Official reporter's transcript, pages
4520-4527, volume 14.) .
124 Coffey's Probate Decisions, Vol. 4.
Witness again testifies that in about a month or six Aveeks
after the marriage of Jo and Julia, upon his visit to them,
after Jo and he took a walk, he chaffed Joe a little about the
baby, as he did not know that Jo had had a child before mar-
riage, and Joe turned "nasty" with him about the chaffing,
and intimated that it was none of his business.
Shiells testifies that he first formed Jo Ashcroft's acquaint-
ance in 1872, when they were about fifteen or sixteen years
old (page 4859, volume 15, official reporter's transcript) ; he
first saw Julia Perry while working for Smith & Sons, be-
tween July and December, 1873 (page 4872, volume 15) ;
next saw her at 16 Sidmouth street, between 1874 and 1875
(page 4876, volume 15) ; Jo and Julia came up to his house
on Gilbert street, late in 1874 or 1875, would not be certain
which, to ask witness and his wife to go to their wedding;
witness said at first that he might be mistaken as to the date,
and then he was positive that that was the date ; it was a week
or a couple of weeks before Christmas that they called to invite
witness and wife to the wedding, which was to take place
Christmas night (page 4882, volume 15) ; he says he is uncer-
tain about dates (page 4887, volume 15) ; he repeats that he
first met Julia in July, 1873 (page 4989, volume IB) ; the
third interview with Julia Perry he locates about a week be-
fore they were married, in 1876, near Christmas time ; he says
he met Julia first in 1873, about two years after he met Jo
(page 5081, volume 16) ; the third time he saw Julia was more
than a year before the marriage (page 5119, volume 16) ; he
first met Julia Perry in Jul}', 1873 ; the second time, between
1874 and 1875, and the third time close on to 1876 (page
5121, volume 16, official reporter's transcript). Witness says
he was about fourteen or fifteen years old when he entered
the service of Baron de Tuyll de Serooskerken ; worked for
him for two years, was sixteen or seventeen years old when he
left; witness first met his wife about two years after that,
and was about twenty years old when he first met his wife,
and became acquainted with Joseph Ashcroft about twelve
months before, and a year after he left the service of the
Baron de Tuyll ; about two years after meeting Joseph Ash-
croft, met Julia, and was twenty-three years old at that
time. (Official reporter's transcript, pages 5126, 5127, vol-
Estate of Blythe. 125
Time 16.) Subsequently says this is a mistake; he must have
been twenty-one or twenty-two years old when he first met
her ; he was born in 1856 ; he first met her in 1873. Witness
does not exactly remember the date of Joseph Ashcroft's
marriage; think it was Christmas morning, but will not be
certain about that. (Official reporter's transcript, page 5259,
volume 17.) "Witness saw Joseph many times between 1874
and 1876. (Official reporter's transcript, page 5261, volume
17.)
The first time witness met Julia Perry was about the end
of 1872, when, by appointment with Joseph Ashcroft, they
went to meet Julia and another girl at a place which witness
thinks was in Cromer street ; when witness made this state-
ment he said he was referring to the second time he met Julia
Perry when he met the servant girl ; witness explains this by
saying that at the time Dr. Hood took that statemetit down
from him witness had not got the other papers which he pro-
duced afterward to the doctor, and with that he gave him as
near about the date that he had made was in 1872 instead of
1873; after he saw the doctor he fixed the date 1873, when
he got another paper and looked this over.
He never met this servant girl and Julia with Jo but once.
(Official reporter's transcript, pages 5262, 5263, volume 17.)
"Witness thought this meeting was in Cromer street; in 1873
he met her in Cromer street (page 5264, same volume), and
in 1876, or somewhere about that time, witness met her in
Sidmouth street. (Official reporter's transcript, page 5262,
volume 17.)
"Witness saw Julia and Jo by themselves at the first meeting
— in 1873 ; the time he met Julia and Jo and another girl was
in 1876 ; the first meeting thev had was in 1873 and the second
meeting was in 1876, the second at 16 Sidmouth street (page
5265).
"Witness is positive he first met Julia Perry between July
and December, 1873 — somewhere about that time.
IRRECONCILABLE STATEMENTS.
It is impossible to reconcile these contradictions, or to jus-
tify them on any theory consonant with the veracity of wit-
ness; his statements are not only irreconcilable each with the
126 Coffey's Probate Decisions, Vol. 4.
other, but they are inconsistent with the testimony of other
witnesses on the same side ; he and his wife differ very materi-
ally as to dates, not agreeing even upon the birth and exist-
ence of their first child. (See official reporter's transcript,
page 4704, volume 15; judge's manuscript notes, page 282,
volume 3.)
Witness was born Februarj^ 1, 1856, and says that when he
first met Julia Perry he was twenty-three years old. This
would make the year of meeting 1876. Subsequently he says
this was a mistake, and that he was twenty-one or twenty-
two years old when he first met her, in 1873. Of course if
born in 1856 he v.ould be about seventeen years and upward
in July, 1873.
The letters (Williams' Exhibits 28 and 29) are important,
as in conflict with the imputed intimacy between Joseph Ash-
croft and Julia Perry prior to their marriage in March. 1876.
Take the one of March 1, 1875. Is it credible that this letter
could have been written in a spirit of sincerity by Joseph
Ashcrof t if he had had an illegitimate child ? And moreover,
to one to whom he had the year previous, in 1874, confessed
his transgression? (Official reporter's transcript, pages 5240-
5218, volume 17.) This is the letter containing religious ad-
vice and adjuring Shiells to seek forgiveness of sins, and
concluding with a warning to George to be a man and to
forsake all companions who do him no good, and to give up
the lusts of the flesh, and subscribing himself "with kind,
faithful and Christian love."
It is not probable that the writer of this letter had been at
that time the begetter of a bastard, and the same may be said
of AVilliams' Exhibit 29, letter of March 9, 1875, Ashcroft to
Shiells.
It would be remarkable, if the writer and his correspondent
were acquainted with her, that there is no allusion to Julia
in either of those letters, although there are references to
other girls. Jane and Agnes and Emily, the last named of
whom Jo claims to be deeply enamored of him and to be
happy as long as he lets her love and kiss him, although for
some reason not clearly explained his own affection for her
has abated. The infere^nce from this correspondence is irre-
sistible that at that time, March, 1875, Joseph knew not Julia.
Estate of Blythe. 127
It is clear that the witness George James Shiells was hope-
lessly confused as to dates when he tried to fix the date of his
meeting Julia for the first time. His adherence to the date
July, 1873, in spite of its irreconcilability with his other dates,
apd the statement of his age at the time (he said he was
twenty-two or twenty-three years old at the time, whereas in
1873 he was only about seventeen years of age, having been
born in 1856) is difficult to account for except in connection
with the contract and accompanying statement made to Dr.
Hood prior to the witness' coming to this country to testify
in this cause.
THE DEPOSITION OF THE DAVISES.
Next in order are to be considered the depositions of the
Davises— father and son.
David Davis, the son, deposes that at the date of the depo-
sition he was twenty-nine years old and upward, that he knew
Kate Perry, formerly Kate Beadle, and first saw her on the
day of Joseph Ashcroft's marriage to Julia Perry, when he
and she both signed the register as witnesses to said marriage,
which took place in December, 1876, at a Baptist chapel, John
street, Marylebone ; he first knew Julia Perry from about the
end of the year 1873, or the beginning of the year 1874, about
which period Joseph entered the service of his father, Lewis
Davis, in Crawford street, as a clerk; Julia was in the habit
of calling at his father's offices for Joseph in the evening,
upon the termination of his day's duties. Joseph entered his
father's service about the end of the year 1873, and remained
with him until about the year 1881 ; cannot recollect the exact
period, was formally introduced to Julia by Joseph Ashcroft
about two months before the marriage, but knew her by sight
long before then ; it was in the evening, no one else being
present but the three — Joseph, Julia and deponent ; thinks
Joseph introduced her as the daughter of Dr. Kahn and said
she was his girl or sweetheart, or words to that effect ; when
Joseph entered the service of deponent's father at Crawford
street, in 1873 or 1874 he was naturally never formally in-
troduced to him ; simply got to know him as he would any
other clerk by seeing him at the office with the others; when
Ashcroft first entered his father's emplo.y deponent was as-
sisting his father in his business as a valuer and Ashcroft
123 Coffey's Probate Decisions, Vol. 4.
never worked for him personally, but for his father contin-
uously' from 1873 or 1874, the exact date he cannot now recall,
until a few months before his death, with the exception of a
short period when Ashcroft left his father's service, but was
again taken back ; witness cannot give exact dates that he
entered or left,- as he kept no memoranda of such matters,
and is unable to answer more definitely. Very soon after
Joseph came to his father's service deponent saw Julia hang-
ing about the premises waiting for Joseph; deponent was
not introduced to her then nor till long afterward, say two
or three months; it was about two or three months after wit-
ness first saw her that he was introduced to Julia by Joseph
James Ashcroft.
This deponent, David Davis, says he was introduced to
Julia by Joseph about two months after witness first saw her,
who said she was the daughter of Dr. Kahn ; this was the year,
as is testified that Perry was doing business at 16 Sidmouth
street, as Dr. Kahn. (Judge's manuscript notes, page 310,
volume 4.)
The testimony of INIrs. Ellen Ashcroft is that Jo went to
Lewis Davis' shop, in Crawford street, in the latter part of
1876, and remained there until after he was married. (Offi-
cial reporter's transcript, pages 4074-4075, volume 14.)
Plainly, it could not have been in 1873 that David Davis, then
a boy of about thirteen years of age, saw Julia and Joseph,
and must have been in 1876. The Davises retained no books
or memoranda by which they could refresh or verify their
recollection. Lewis Davis, the father of David Davis, testifies
that, judging from his appearance, Joseph Ashcroft was be-
tween twenty and twenty-three years of age when he entered
his employment, which therefore must have been in 1876, as
Jo was born in 1856.
Counsel in opposition to plaintiff's claim (Dr. Edward R.
Taylor) contends that the depositions of David and Lewis
are most important to show that Julia met Jo before 1876,
and insists that they are conclusive as to that fact. In the
judgment of the court, when they are analyzed, and in con-
junction with other evidence for defendant, they are con-
clusive to the contrary contention.
Estate of Blythe. 129
the theory of resemblances,
"While it was physically possible (as one of the counsel
argues) for Julia, at the time of her intercourse with Blythe,
to have been pregnant by some other man, when it is said that
Joseph Ashcrof t met Julia Perry and became the father of this
child, he was between sixteen and seventeen j'ears old, a callow
boy, as is shown by his picture in the Scotch suit (Williams'
Exhibit 2) and she a handsome young woman of twenty years,
it is utterly unlikely, entirely improbable, that such a con-
nection could have been or was formed, even if all the proved
facts were not so strong against such an assumption. But it
is said that there are certain resemblances between the Ash-
<3rofts and the plaintiff, which, in connection with the want of
resemblance to Blythe, argue the consanguinity with the
former; and one of the counsel (Mr. Towle) has constructed
upon this hypothesis a most elaborate, subtle and ingenious
theory to show that Joseph James Ashcroft, and not Thomas
H. Blythe, was the father of Florence ; and another counsel
on the same side (Dr. Edward R. Taylor) contrasts the two
men — Thomas H. Blythe and Joseph James Ashcroft — the
one a strong and vigorous man, the other a small, weak, con-
sumptive, puny person, and notes the child's marked resem-
blance to the Ashcrofts, an extraordinary resemblance, says
this counsel, which carries with it a power of persuasion which
the court cannot readily resist ; the features are identical, the
facial points of identity strong, the same protrusion of the
upper lip and the like contour of the countenance, and other
elements of common derivation that have produced in the
mind of the counsel a conviction that the plaintiff was be-
gotten by Ashcroft, and not by Blythe ; but it is curious how
far the zeal of advocacy can carry counsel in advancing a
theory or evolving a fact, for on the opposing side the counsel
for plaintiff produces an array of dissimilarities about equal
to the resemblances; but neither avails aught as against facts
established in evidence; an ounce of fact outweighs a ton of
theory, and in addition as to this character of evidence, it has
been laid down by competent authority that it does not go
far toward establishing relationship, since a marked similarity
between strangers and great dissimilarity between kindred are
matters of almost daily observation (In re Jessup, 81 Cal,
Prob. Dec, Vol. IV — 9
130 Coffey's Probate Decisions, Vol. 4.
418), and it has been well observed by counsel (John H.
Boalt, Esq.), for plaintiff, that no one here has ventured to
suggest that there is any resemblance between the plaintiff
and Mrs. Ellen Asheroft, her alleged paternal grandmother,
to whose evidence it is proposed now briefly to revert,
MRSr ELLEN ASHCROFT, GRANDMOTHER.
i
This lady is extolled by counsel (Edward R. Taylor) for
the defense as a good, motherly woman, who must by her
appearance have commended herself to the court as a truthful
witness, one who was fair all the way through (see judge's
manuscript notes, pages 775-777, volume 9), a witness who
must be believed by the court; and another counsel on the
same side eulogizes her as ' ' the noble, womanly, lovable grand-
mother. " (Abstract of argument of Mr. S. W. Holladay,^
judge's manuscript notes, page 786, volume 9.)
Counsel opposing plaintiff (the senior Mr. Ilolladay) com-
ments on the occasion when, after Jo and Julia were married,
in 1876, the grandmother first saw Florence, and exclaimed,
"How much like little Florrie!" alluding to a child of her
own dead long before, a natural, impulsive exclamation of
truth; and this counsel (Mr. Samuel W. Holladay) proceeds
to say that it is in evidence that the child lived for a time
with Mrs. Ellen Asheroft, visited there frequently as a child,
first as the child of Mrs. Kate Perry, but afterward confess-
edly as the child of Jo and Julia; she was Jo's first child,
asserts Counsel Ilolladay, the first gush of his boyish passion.
Remember how recklessly these women swore that the child
was always called Florence, when here is the letter of Emily
Hawkins, December, 1879, addressed to "My dear little
Florrie":
WILLIAMS' EXHIBIT 18.
Ill Wandsworth Road, Dec. 18, 1879.
My Dear Little Florrie : I wish you many happy returns
of the day. I hope you will come and spend another after-
noon with us before you go home. I wish I could get Nelly
sometimes to come and see us. Tell Nelly I shall be able to
come on Saturday. I shall come as early as I can in the after-
noon.
Estate of Blythe. 131
Hoping 3'ou are all well, also trusting to see you all soon.
Give my kindest love to your dear grandma and Nelly, and
the same your little self, not forgetting William.
I remain your affectionate friend,
EMILY HAWKINS.
Wishing you all a Merry Christmas and a Happy New
Tear.
What was the motive of the Perrj's, queries counsel, in steal-
ing this child ? Why should they prefer Florence to the other
children of Jo and Julia, who should have been equally dear
to their grandfather Perry? Why did they steal and secrete
this child? And counsel answers, that they might pretend
that it was Blythe 's child, and extort money from him
through it by practicing this colossal fraud and conspiracy.
Jo Ashcroft, says counsel, was especially fond of this child,
as was shown by his expressions at the time he died, and
counsel traced, in his own way, the history and migrations
of the Perrys, and here may be inserted appropriately "the
history of the child according to Mrs. Kate Perry," as com-
piled by Counsel Dr. Edward R. Taylor, associated adversely
to plaintiff with Mr. HoUaday.
HISTORY OF THE CHILD FLORENCE.
History of the child according to Mrs. Kate Perry: First
saw Florence Blythe in London in March, 1876 ; went with
Julia to Mrs. Bailey's, in the Brompton road, to get her.
Perrys first went with child to Eustou road, and then to 27
Judd street; then to 16 Sidmouth street until May, 1877;
Florence remained at 16 Sidmouth street after marriage of
her mother; next Perrys went to Ryde, Isle of Wight; here
Florence went to her mother ; at Ryde, from May to October,
1877; while at Ryde she (Mrs. Perry) went to London with
Mrs. Elder, and saw Florence ; next saw" Florence at 52 Union
street, Plymouth, in December, 1877, where the Perrj'-s went
from Ryde ; she stayed with Perrys here until the spring of
1878; she then went with her mother to London, where she
remained two or three months ; next saw her in Southampton
in the summer of 1878 ; then in Torquay in August, 1877,
and until January, 1879. she was with the Perrys there ; from
Torquay to London, to ]\Ioore Park Row; Florence did not go
132 Coffey's Probate Decisions, Vol. 4.
with the Perrys, but went to her mother; saw her again at
Teddington (near London) in March, 1879; she was with
Perrys there until June, 1879 ; Perrys then went to 16 Sid-
mouth street until November or December, 1879, when she
went to the Ashcrofts; Perrys from Sidmouth street to Wor-
cester for two'^r three weeks, and from Worcester to Man-
chester; saw Florence again March, 1880, at Mrs. Ellen
Ashcroft's, in London; she then returned with Kate Perry
to Manchester the same day ; at IManchester Florence remained
with the Perrys until June, 1883, when they came to San
Francisco.
From June, 1883. to November, 1883, Florence with W. H.
H. Hart at San Francisco.
(Note. — It will be observed that Mrs. Kate Perry makes
no mention of herself, Julia and the child going to Eggle-
stone in the fall of 1876, as testified to by the Beadles, and
she limits ]\Irs. Ellen Ashcroft's care of the child to the one
time in the fall of 1879.)
SYNCHRONISMS AND ANACHRONISMS.
There is a significance, remarks Counsel S. W. Holladay,
in the fact that when they went to Manchester Perry took
the name of "Mr. H. Beach." This was about synchronous
with the stealing of the child.
The synchronisms discovered by counsel in this evidence
might w^ell be placed in juxtaposition with the anachronisms
in the testamony of the Shiells and Davis witnesses, especially
Shiells.
Counsel says he does not pretend that Jo Ashcroft was a
great man, but he was fond of his offspring and the son of a
good mother, Mrs. Ellen Ashcroft, a dignified, honest, chaste,
matronly woman — "motherly" is the word to use; and coun-
sel then alludes to the deathbed scene in the cellar where he
died, when Jo Ashcroft adjured his mother, Mrs. Ellen Ash-
croft: "Mother, I want you to follow the Perrys and punish
them for stealing my child," and she is here, claims counsel,
pursuant to that purpose and her promise to her dying son ;
she nursed and reared this child for the first seven years of
its life; it was the child of her son, and she has a natural
affection for her grandchild, who was taken from her by
Estate of Blythe. 133
strangers, her mind perverted and her heart alienated. It
would be hard to delineate a more pathetic picture than that
drawn by counsel, or one in more painful contrast with the
fact as appeared in that spectacle (to which he alludes), the
sad scene when Mrs. Ellen Ashcroft was on the witness-
stand and the child Florence came in to be recognized by her,
and when she at first failed to identify her.
"This is another headland in this case," a very bold prom-
ontory, "to steer us to the haven of truth."
It is worth while to recall that sad scene in connection with
counsel's description of this "motherly" old lady, who in
1876 instinctively identified the child when she first saw her,
and with "the natural, impulsive exclamation of truth,"
cried out, "IIow much like little Florrie!"
THE SCENE IN THE COURTROOM BETWEEN THE CHILD AND THE
GRANDMOTHER.
The sad scene referred to took place in the courtroom on
Thursday afternoon, September 26, 1889, when the plaintiff,
being asked by Counsel Dr. Edward R. Taylor to stand up and
confront the witness and remove her hat, did so, and the
witness, Mrs. Ellen Ashcroft, stepped from the stand to the
floor on a level with the plaintiff, and proceeded to make a
most cool, calm, circumspect and critical survey of the girl.
She examined her carefully, as instructed, peered into her
eyes, turned her by the shoulder around, and viewed her in
every light. It would be hard even for an expert employed
for the purpose to make a more thorough or a more cautious
physical scrutiny — all under the immediate observation of
the court — and turning around the witness said, not with the
"natural, impulsive exclamation of truth," but with deliber-
ation and emphasis tinged with acrimony: "I cannot recog-
nize her; I cannot see a feature I could recognize her by;
cannot recognize a single feature"; and this was not the first
time during the trial that Mrs. Ellen Ashcroft had seen the
girl, for it appears that she had, about a fortnight before,
surreptitiously observed her in the courtroom, when the plain-
tiff was coming into the apartment and going on the witness-
stand. (Official reporter's transcript, pages 4015, 4016, vol-
ume 13.)
134 Coffey's Probate Decisions, Vol. 4.
After the court had requested the plaintiff to leave the
courtroom, the witness proceeded to describe the child whom
she had at her house in 1880, and when the plaintiff returned
to the courtroom the witness described her as she stood there
before her, feature by feature, the color of her eyes, eyelashes,
eyebrows, hair, 'coniplesion, lips, nose, nostrils, mouth, teeth,
face, and repeated that she could not recognize a single fea-
ture that this plaintiff had in common with the little girl
whom she had with her in 1880.
It is true that when the witness returned to the stand, a
week subsequently (Tuesday afternoon, October 8, 1889),
she said that meanwhile she had had an opportunity to ob-
serve the plaintiff more closely, and now noticed in her man-
ner and voice something of the "Florrie" of 1880, and, as
the result of these recent observations, recognized her as the
same; but this afterthought could not destroy the effect of
her evidence on the first day, but, on the contrary, it had a
tendency to strengthen that effect; the first examination could
not have been closer, and if this "motherly" lady had a grain
of the maternal instinct counsel claim for her, it would have
been asserted in unmistakable manner when her hand came
in contact with the person of the plaintiff; that touch of
nature w^ould have proved her kin. When counsel exclaims
that this motherly lady, Mrs. Ellen Ashcroft, is here pursuant
to a purpose to vindicate her son, and fulfill her promise to
him on his deathbed to follow the Perrys and punish them
for stealing his child, it seems strange to the court that she
should, after so ample an opportunity of observation and in-
vestigation, fail to recognize the olTspring of the loins of her
own son. her direct descendant. If she came in obedience to
the solemn injunction of her dying son, she made a signal
failure of her mission at the critical moment. The impression
made upon the mind of the court by her appearance, de-
meanor and testimony was radically at variance with that
which the counsel would seem to desire to convey. She came
across the ocean to testify against a child whom she claims to
be her granddaughter, and while so engaged she is compen-
sated under the terms of a contract that binds her hard and
fast to testify in her evidence in accordance with the outline
thereof contained in her deposition or statement made before
Estate of Blytiie. 135
leaving England, for a guinea a week and passage and ex-
penses back and forth while so engaged. (Plaintiff's Exhib-
its 257, 258.)
When she surveyed the person of plaintiff in the court-
room, she betrayed not a spark of motherly emotion, so far as
was discernible to the court; not a gleam of natural affection
was visible in her eye as she gazed with steadfast look upon
the girl before her; on the contrary, the witness appeared to
be actuated by a hostile, if not a malignant, spirit toward the
object of her scrutiny; her conduct, also, when the photo-
graphs of the child were presented to her for recognition was
remarkable (see judge's manuscript notes, page 240, volume
3) and inconsistent with the position of defendants as to her
relation to the child,
THE SCAR ON THE CHILD 's ARM,
One point may have escaped notice with regard to the
identity of plaintiff. The scar on plaintiff's arm. ]\Irs. Ellen
Ashcroft says she first saw this scar in 1877 ; she asked Julia
what scar that was; Julia said it was from a cinder falling
out of the fire, and was done in her own mother's time; "in
my mother's time," were the words Julia used. (Judge's
manuscript notes, page 235, volume 9.) This is in contra-
diction of the testimony given by Mrs. Julia Ashcroft and by
Mrs. Kate Perry, that the scar was caused by a cut on the
sharp edge of a broken shaving-cup after the time of the
death of the first Llrs. Perry ; and their statement is confirmed
by the expert evidence of tvvo eminent surgeons. Dr. John F.
Morse and Dr. Charles E. Blake, that the scar was not the
result of a burn, but that it was an incised wound, and not a
burn, (Judge's manuscript notes, page 332, volume 4,)
"the sun music-hall" incident.
The testimony of Mrs. Ellen Ashcroft as to the conversation
that she says occurred in 1877, in the cab, when she, her in-
fant Percy, her son Joseph and his wife Julia were passing
the "Sun Music-hall," and Joseph asked Julia, "Do you re-
member tliat place"? and she replied, "Yes; that is where we
first met," and witness asked, "When?" he answered, taking
the child on his lap, "That was before she was born," is, in
136 Coffey's Probate Decisions, Vol. 4.
view of all the other evidence, scarcely worthy of serious con-
sideration; besides being denied by Julia, it is otherwise
established that she did not know Joseph before this child
Florence was born.
t
THE STORY OF THE DEATHBED OF JO ASHCROFT.
Much stress has been laid upon the deathbed scene so dra-
matically described by the counsel as occurring in the cellar
when Jo Ashcroft died; but as belief in the statements of
what then and there occurred is dependent upon otherwise
discredited testimony, the court is constrained to disregard
it, even were it important if true ; but it does not tally with
proved facts, and some of it, for instance, the dying declar-
ation that his wife was then pregnant of a bastard, is too re-
volting for toleration, and the main reliance for its acceptance
is the witness George James Shiells, whom the court cannot
credit even against Julia Ashcroft, notwithstanding the ap-
peal of one of the counsel (Mr. Highton) : "Is there a judge
on the face of the earth, exercising the functions of a jury,
who would reject such a witness' testimony and accept that
of a person in the interested situation of Julia Ashcroft?"
This appeal has been already amply answered.
WHY DID JO ASHCROFT WANT TO KEEP THE CHILD.
Why was it that Joseph Ashcroft wanted to keep the child
Florrie? He was bitterly poor; he wanted money; he had
been an unsteady boy and a thriftless young man ; he was
going about from place to place until 1876 — so his mother
testifies — and this is in complete contradiction to the testi-
mony of David and Lewis Davis, who say that he was in their
shop from 1873 to and beyond 1876; his mother called him
a bad boy because he was not obedient and could not keep his
places. (See judge's manuscript notes, page 237, volume 3.)
He was willing to be rid of the child, but he wanted to have
control of the £30 promised by Blythe to Julia; his own
mother's description of his shiftless character corresponds
with Julia's statement that he was too lazy to work; his
motive in desiring to secure possession of the child was in
perfect keeping with his general character, as portrayed by
Estate of Blythe. 137
his mother and his wife. (See, also, testimony of Mrs. Sarah
Bailey, judge's manuscript notes, page 747, volume 9.)
the tin box marked p. m. c. p.
But one of the counsel for the defense (Dr. Edward R.
Taylor) claims that there is an item of evidence here fur-
nishing "confirmation strong as proofs of the Holy Writ" of
the falsity of the pretensions of plaintiff: the tin box marked
F. M. C. P., and the counsel dilates upon the terrible mean-
ing and significance of those initials, irrefragable evidence of
perjur}^ of Julia Asheroft, and says that this box now in
court is appropriately used as a receptacle for the exhibits in
plaintiff's case, and may also be appropriately used as a
coffin for her case (it may be observed here, in parenthesis,
that the same tin box or casket contains also the exhibits in
the case specially represented by this counsel), but what does
it amount to in the qualitj'^ of evidence? Do the initials indi-
cate the paternity in Asheroft? Obviously not. Was the
girl ever called "Maud" or "Crisp" by anybody? There is
no scintilla of testimony to this effect; no one intimates in
any way that she was ever so known. The fact is, the box is
without any value whatever as evidence in the case. Possibly
she was called at times, from temporary association, "Flora
Perry" or "Florrie Asheroft," and may have called Mrs.
Ellen Asheroft "Grandma" and Jo Asheroft "Papa"; but
when we consider the physical facts proved in this case, these
minor incidents import nothing, much less perjury, or false
personation, or colossal conspiracy and fraud, as charged by
the defense.
If, in the consideration of the issue of paternity of plaintiff,
some witnesses have not been accorded mention, it is because,
in the opinion of the court, their testimony is not of sufficient
importance to merit attention.
THE ISSUE OP paternity MADE OUT BY STRICT AND PLENARY
PROOF.
It has been shown here, on the part of plaintiff, that prior
to March, 1873, Blythe alone had access to Julia Perry. There
is not the least particle of evidence that Joseph James Ash-
eroft had access to her before that year; not even Shiells
138 Coffey's Probate Decisions, Vol. 4.
testifies that he saw them together prior to July, 1873. Even
if his testimony were true, it only refers to between July and
December, 1873; but even then its falsity is manifest in and
of itself, irrespective of other evidence. There is positively
no trustworthy testimony — no evidence — against the issue of
paternity in Thomas H. Blythe. It has been shown by strict
and plenary proof that he was the father of the plaintiff in
this action, and this court so finds and determines.
But that is only one issue upon which plaintiff rests her
claim to heirship. What is the other or others?
WAS PLAINTIFF EVER ADOPTED, ACKNOWLEDGED, OE LEGITI-
MIZED ?
Plaintiff's claim is based upon two sections of the Civil
Code of California — section 230 and section 1387. Section
230 of the Civil Code reads as follows :
"The father of an illegitimate child, by publicly acknowl-
edging it as his own, receiving it as such, with the consent of
his wife, if he is married, into his family, and otherwise treat-
ing it as if it were a legitimate child, thereby adopts it as
such ; and such child is thereupon, for all purposes, legitimate
from the time of its birth. The foregoing provisions of this
chapter do not apply to such an adoption."
Counsel for plaintiff contends that there are here five ele-
ments that must be established: (1) There must be an illegit-
imate child; (2) the plaintiff is that child; (3) the father
was Thomas H. Blythe; (4) that he publicly acknowledged
her; (5) that he treated her as a legitimate child, and there-
fore she was adopted and legitimized by him, and is and has
been, for all purposes, legitimate from the time of her birth.
The provisions of the statute are to be liberally construed,
but the proof of paternity must be strict and plenary.
Relatively it is of little consequence what the rule is in a
given case, but it is of great importance to the community,
and to society, and to the state, to have the rule of law, so
gravely aft'ecting its stability and integrity, and property
rights, correctly laid down.
EsTATfi OF Blytiie. 139
THE WHOLE QUESTION ONE OF LAW.
The whole question now becomes one oi' law. The one who
lias the legal right should secure the estate. The whole ques-
tion of devolution of property rights depends upon statu-
tory enactments, and there is no natural right in the premises.
Plaintiff claims, primarily, under section 230, Civil Code,
which requires the institution of heir or adoption to be made
by the father. It must be the father. The institution of heir
is the primary object of the statute. The succession of prop-
erty rights is incidental; it is a status that is involved; it is
the relation of the child to society.
In the opinion of this court, three of the elements of the
statute, section 230, Civil Code, have been established: (1)
There was an illegitimate child; (2) the plaintiff was and is
that child; (3) Thomas H. Blythe, the decedent here, was
the father of that child. We are now to consider the question,
Was the plaintiff publicly acknowledged by Blythe?
WHAT SATISFIES THE STATUTE?
What satisfies the statute upon this issue? This is an-
swered in Estate of Jessup, 81 Cal. 457, 21 Pac. 984, in the
opinion of Mr. Justice Works, in stating the doctrine appli-
cable to such a case, and I do not interpret the later decision
in the same estate as announcing a discordant principle: 81
Cal. 409, 21 Pac. 976, 6 L. R. A. 594.
Is the evidence produced upon the part of plaintiff suffi-
cient to show that the decedent, Thomas H. Blythe, "publicly
acknowledged" her as his own child?
To establish his riglit, a claimant must prove two things:
(1) That he is the illegitimate child of the alleged father;
(2) that he has been openly and publicly acknowledged and
received and treated as such. But in order to avoid imposi-
tion and fraud, the statute requires that these things shall be
established by certain proof. Under the statute of 1870 it
must be proof of his "treating, receiving or [and] acknowl-
edging him publicly as his own legitimate child." That is to
say, he must treat, receive or [and] acknowledge him as if
he were his own legitimate child, and in order that the proof
140 Coffey's Probate Decisions, Vol. 4.
may be made by disinterested parties, and fraud and impo-
sition avoided, all of these must be done openly and publicly,
and not secretly.
Section 230 of the Civil Code, although differently worded,
is in effect the same. The language is, "by publiclj^ acknowl-
edging it as his pwn, receiving it as such into his family, and
otherwise treating it as if it were a legitimate child."
THE most satisfactory PROOF.
Undoubtedly the most satisfactory way of establishing the
necessary facts is by proof that the claimant has been received
into the family and given the family name. But this is not
necessary where there is sufficient proof of a reason for not
having done either: In re Jessup, 81 Cal. 434, 21 Pac. 976,
6 L. R. A. 594.
Mr. Justice Fox said, in the finally prevailing opinion in
the case cited: "It is said that as Jessup was never married
he was not bound to receive this child into his family, for he
had none in which to receive it ; but we do not so read the law.
The language is, 'publicly acknowledging it as his own, and
receiving it as such, wnth the consent of his wife [if he is
married] into his family, and otherwise treating it as if it
were a legitimate child.' If he has a wife, he can onlj'- receive
it into the family with her consent ; but if he has no wife, he
must still receive it into his family — that is to say, in such
family as he has, the child must be acknowledged and treated
as his — at least, lie must not deny to the members of such
family that it is his": In re Jessup, 81 Cal. 434, 21 Pac. 976,,
6 L. R. A. 594.
ORAL declarations OF DECEDENT.
The oral declarations made by decedent to various witnesses
are numerous and continuous through a course of years,
down to almost the hour of his death. To friends and ac-
quaintances he repeatedly and unreservedly made such ac-
knowledgment times without number ; it was a constant theme
with him, ever upon his lips. The effect of these declarations
is hereinafter to be weighed, as matter of law; the fact of
their making is easily established.
Estate of Blythe. 141
I have considered the declarations as to paternity by them-
selves alone, as near as might be, and separate and segregated
from the declarations of acknowledgment, and shall pursue
the same course as to the latter.
In one of his conversations with James E. Carr, with whom
he had frequent talks about his little girl, in the mountains,
at Carr's place, Carrville, Trinity county, California, where
he was in the habit of talking about her, he said how nice it
would be to have her out and practice music with Carr's little
girl, who was very proficient in music ; at another time Carr
and Blythe had a conversation in Brooks alley, San Francisco,
in presence of Hon, John K. Luttrell, and Blythe said he
would not again place a dollar of mortgage on the western
part of his property, but he would dispose of the lower half
and improve the upper part for the benefit of his little girl,
^.for Florence or Flora. In December, 1882, about Christmas
or New Year's, witness had a conversation with Blythe, in
which the latter said that W. H. H. Hart had advised him to
have adoption papers, but he did not think it necessary, as he
acknowledged the child; once, in 1878, Blythe told witness
that ex-Governor Haight had drawn for him a will (judge's
manuscript notes, page 67, volume 1; official reporter's tran-
script, page 1127, volume 4) ; he said he intended to leave the
western portion of his property unmortgaged for his little
girl, and improve it for her. (Official reporter's transcript,
page 1130, volume 4.)
Blythe said to Varney that he wanted the westerly part of
the block free and clear for the little girl he was going to get
out from England; that he intended to build the westerly half
of the block all over, so that she could have it. In 1881, when
Nicholas Luning had made his brag that he would own the
block, Varney told Blythe of this, and the latter determined
to lift the mortgage and rid himself of Luning, and he said
to witness one day, standing in the alley, that he had made
arrangements to get money from Mr. Parrott, and he had two
objects in doing that: one was to be released from Luning,
and the other was that he wanted the westerly block entirely
free and clear for his little girl Florence. (Official reporter's
transcript, pages 1354-1356, volume 5; judge's manuscript
notes, pages 77, 78, volume 1.)
142 Coffey's Probate Decisions, Vol. 4.
To Andrew Mortimer Davis the decedent said, in the fall
of 1882 or the early part of 1883, prior to his departure for
]\Iexico, pointing to a map that he had in the room, in his
office, 7241/2 ]\Iarket street, and the plans of a canal that he
was cutting through his Mexican property, he showed a cer-
tain point thatjhe said was one of the most beautiful spots
on earth : he said that that was where he would spend his
old age with his child, who was then in England ; and Blythe
said to witness : ' ' This block which you all talk so much about
is but a mere speck on the map," and then went on to show to
witness the immense extent of three million acres of land;
and witness sagely observed to decedent: "Mr. Bl}d:he, if it
had not been for this speck, you would never have had this
map; be very sure that, this map don't cost you this speck."
(Official reporter's transcript, pages 1502-1509, volume 5.)
In 1881 the decedent told Jerome Deasy (who is quoted
here because he is corroborated by other witnesses) on the
night of the day he had effected a release of the mortgage on
the west half of the block from N. Luning, that he felt good
because that portion of the property was now free for Flor-
ence, who would be provided for. (Official reporter's tran-
script, page 1526, volume 5; judge's manuscript notes, pages
86, 87, volume 1.)
To Milo Sidney Jeffers he spoke of plaintiff on a number
of occasions. On the last day of his life Blythe said to Jef-
fers: "You will have to go and get Florence; I shall never
be able to get her." (Official reporter's transcript, page
1574, volume 6.) This remark was made at about 4 o'clock
in the afternoon of the day of his death. The witness gave
a dinner in honor of Blythe, on the occasion of the latter 's
sixtieth birthday, in 1882, Sunday, July 30th, when General
Andrade was present, when Blythe exacted of Jeffers a prom-
ise that if he (Blythe) died, the witness would be faithful to
his child Florence. (Official reporter's transcript, page 1758,
volume 6; judge's manuscript notes, page 99, volume 1.)
corroborative evidence.
This evidence is corroborated by that of the defendant,
Alice Edith Blythe, who says, concerning certain photo-
graphic pictures of plaintiff, tliat she and the decedent had
- Estate op Blythe. 143
some conversation about those pictures, and he said he was
pleased to see that the child looked well cared for and was
well clad, as she was delicate; he called the child "Florence";
he was constantly speaking of her after he wrote the first
letter to her; in fact, the witness says, she herself composed
that first letter, and she and he were about a week engaged
at that; decedent was always talking about his plans for
Florence's future, and he would discuss about his religious
views; he said that although he was something of a skeptic,
and was constantly studying spiritualism, he wanted to have
the child free as to choice of religion, but wanted her baptized
and well instructed; one evening, after a late dinner, he had
been drinking a good deal of wine, and he asked witness if
she had seen George S. Irish, of whom he said he thought a
great deal, that he was his ideal of a steady and bright young
man, and he destined him to be the husband of Florence when
she came from England, and he thought they would carry out
his ideas in Mexico, and that they and the witness, if she
should live, would perpetuate his name ; witness told him
that from what she saw of the girl's picture she judged the
girl as very light, blonde and of nervous temperament and
quick temper, and that she thought Irish was very much the
same, and that being of similar dispositions they would not
be a suitable match; but he said that he had set his mind
on this, and would not be balked in or dissuaded from it.
Upon the occasion of his sixtieth birthday, when he returned
after the Jeffers dinner, he told this witness what had taken
place there and about the mutual vows between him and Jef-
fers and Andrade. (Official reporter's transcript, page 1758,
volume 6.) He drank a good deal of wine, and, speaking
about Florence, he insisted that witness should join him in a
glass, which she did, and then he insisted that she should
kneel down and vow that in ease of his death she would look
after Florence and see that the child had her rights ; after
the return of decedent from his last trip to Mexico, he ex-
pressed himself as very much disgusted; that he had discov-
ered discrepancies in the character of his ideal. George Irish ;
that he was not at all what he had thought him to be. and
that he had changed his mind about making him the husband
Ill Coffey's Probate Decisions, Vol. 4.
of Florence, and that he should not have her now. (Judge's
manuscript notes, pages 545-547, volume 6.)
The testimony of Jeffers in regard to the episode at the
birthday anniversary dinner to Blythe, July 30, 1882, is also
corroborated by General Guillermo Andrade, the other guest
of the occasion: (Judge's manuscript notes, page 424, vol-
ume 5.)
To Montgomery Godley, Thomas Drake Matthewson, Lu-
man S. Pease, Morris M. Estee, Charles Nathan Palmer,
Thomas Francis Palmer and John K. Luttrell he made simi-
lar statements already noted.
To Henry de Groot, who suggested to the decedent, on a
visit to him in May, 1882, at 6 O'Farrell street, that in view
of the contingency of death he ought to have his affairs in
good shape, Blythe acquiesced and said that he had an im-
pression or foreboding that he would not live long ; he seemed
very much depressed on that account; he said that lately,
since he had become ill, he had a strong desire to send for
his daughter ; that he would like to have what he never had —
a home of his own, but that his domestic arrangements seem
to present a difficulty about bringing out his girl. Witness
said he thought a moneyed consideration, a few thousand dol-
lars, might cause a good-looking young woman to prefer her
freedom, and take her chances of marrying a younger man
in preference to keeping house for an older man. Blythe
said impatiently that he had thought of that, but he didn't
want to terminate those relations' abruptly, and an expedient
had occurred to him of adopting her as his niece, and he said
he had done so.
So far as oral acknowledgments go, the foregoing abun-
dantly attest the claim that the plaintiff was publicly ac-
knowledged by the decedent. Again and again to numerous
and divers persons, without any reservation or qualification,
and without any suggestion of secrecy or caution of conceal-
ment, sometimes in the most public places on the streets, and
in circumstances that precluded privacy, he proclaimed his
paternity and acknowledged this child as his own.
Estate of Blythe, 145
op what value are the letters of blythe as a public ac-
knowledgment ?
There is one letter certainly that may be considered in this
connection, the letter addressed "Florence Blythe," that went
through the postoffice so superscribed. What could be more
public? The envelope (Plaintiff's Exhibit 60), postmarked
"San Francisco, August 11," is addressed as follows:
FLORENCE BLYTHE^
care Mr. H. Beach,
11 Bridge street,
Deansgate,
Manchester,
England,
This letter is as follows:
'O'
PLAINTIFF'S EXHIBIT 60A\
San Francisco, May 8, 1882.
My Own Dear Child: The four photos and grandpa and
your letter all received safe. I am very much pleased with
the photos; they are remarkably well executed, and papa's
little daughter looks so nice and happy in them. Say to
grandpa that papa feels very grateful to him for sending the
photos, but that he is very sorry to learn of grandpa serious
illness, and that he sincerely hopes that grandpa is entirely
recovered by this time. When papa sent you a list of his
favorite pieces and songs, he did so, not in the expectation
that you were far enough advanced in music to play them,
but only to give his daughter a general idea of her papa's
taste in musical matters. When you are ready to practice
the ' ' Old Hundred, ' ' papa will send you the words as altered
by himself. Some people think the words are prettier the
way papa has changed them, and your Cousin Alice sings
them in that way. Papa is very anxious to have his darling
little daughter with him, and my efforts are earnestly directed
to arrange my business to that end. I know it is difficult for
you to understand this matter; but I will say that some of
my business affairs are very extensive and unwieldy; that I
have to wait and depend upon so many contingencies.
Prob. Dec, Vol. IV — 10
146 Coffey's Probate Decisions, Vol. 4.
I do not Avish you to meet with disappointments, and for
that reason I will say to you not to make up your mind too
sure that papa will be able to come to England this summer.
If I can possibly come, my dear child may depend that I will
come, and that I will use every effort to that end. When
you are a little^ older papa will expect you to take charge of
his home. At what age, think you, you will be able to take
charge of papa's house? Papa is much pleased to learn of
the progress you are making in your studies; but more than
all, he is pleased to find that your health is constantly im-
proving. Now, my dear child, your papa does not wish you
to overwork your young mind in too hard studying. From
what I can judge, you are progressing very fast — fast enough
— in your studies, and your papa is very proud of it; but
your papa feels deeper interest in your health than in all else.
August 10, 1882.
My Own Darling Child : The above was written on the 9th
May last and would have been mailed the next day had papa
not been taken too sick to get to the office. This sickness
lasted longer than the doctor or I expected. However, I am
pretty well over the gout attack and my general health is
excellent, and now attend to my business as usual. I should
only have been too happy to have made the trip to England
this summer to see my own dear child, were it in any way
possible. But the condition of my affairs are such as to ren-
der a postponement of that visit unavoidable. I regret much
to have to disappoint my dear little Flora, but there is no
help for it. I look with pleasure to the day I can clasp mj-
dear child in my loving arms. Papa sends all his love to his
dear Flora, and asks her to wait patiently. From your most
affectionate papa,
THOMAS H. BLYTHE.
P. S. — Give my kindest regards to grandpa and grandma.
WHAT IS necessary TO ESTABLISH.
Under section 230, Civil Code, the claim contended for by
plaintiff is adoption and legitimation, and one of the counsel
for defendants (Geo. W. Towle, Esq.) says that by that sec-
tion four facts are necessary to an adoption of an illegitimate
child by its father:
Estate op Blythe. 147
1. He shall be the natural father;
2. He shall have publicly acknowledged himself to be the
father ;
3. He shall have received the child into his family;
4. He shall have otherwise treated it as his legitimate child.
This arrangement of facts essential to be established is
substantially the same as that which w^e have been consider-
ing, and brings us to the next proposition of the statute :
DID DECEDENT RECEIVE PLAINTIFF INTO HIS FAMILY?
It is not designed here in this opinion to deal with the char-
acter of the relations existing between the decedent and the
defendant Alice Edith Blythe at the time of his death, nor
for the years immediately prior thereto, but it has been shown
satisfactorily that his domestic arrangements were not such as
to justify him in bringing the child out to San Francisco, and
there is sufficient proof of a reason for not having done so.
This is shoAvn notably by the evidence of Dr. De Groot, but
at least he did not deny to the members of such family as he
had that the child was his: Mr. Justice Fox, In re Jessup,
81 Cal. 434, 21 Pac. 976, 6 L. R. A. 594.
The defendant Alice Edith Blythe herself testifies that she
dictated the first letter to the child Florence, followed all her
studies and took a great interest in her, and, in fact, if she
had been her own child she could not have taken a greater
interest, and so the witness said to Mr. Blythe. (Judge's
manuscript notes, page 551, lines 10-13, volume 6.) And the
same witness says in her cross-examination, when the Plain-
tiff's Exhibit 54, the letter dated October 21, 1881, from Mr.
Blythe to Florence, was exhibited to her, that that was not
the letter she composed, and is not an exact copy of it; it
has some of the ideas, something about cats and dogs and
household pets; she could not pick out any particular phrasea
or words or expressions; she and decedent were for about a
week or so composing the letter; he said it was a new pose
for him as a father, and he hardly knew how to write to a
child, and asked witness to assist, so she wrote from time to
time, and he made selections, and finally told her he had
written a letter to suit himself in his office. (Judge's manu-
script notes, page 557, lines 5-16, volume 6.)
148 Coffey's Probate Decisions, Vol. 4,
The defendant Alice Edith Blythe further testified that
she made no objection to Mr. Blythe acknowledging this child ;
she concurred in it thoroughly; Mr. Blythe was very anxious
that she should concur in it ; he was pleased to learn that wit-
ness was satisfied with his designs for the little girl, and that
she concurred with his wishes and offered no opposition;
witness told decedent that she had a right to be consulted as
his Vvife in such a matter; Mr. Blythe was glad to have her
concur, because he knew that if she should be jealous of the
little girl, or object to his corresponding with the mother, the
witness could make it disagreeable for him. (Judge's manu-
script notes, page 557, lines 16-25, volume 6.)
Whatever the relation may have been that the defendant
Alice Edith Blythe bore to the decedent Thomas H. Blythe,
whether she was housekeeper, mistress or wife, or the female
head "of such family as he had" (81 Cal. 434), here was a
consent, full, unequivocal, complete, to the adoption and ac-
knowledgment of the child; but it was not necessary, in view
of the reason assigned by him, "that his domestic arrange-
ments" presented a difficult}^ about bringing the girl to San
Francisco, that he should actually have taken her into that
household; he did all that was x^resently practicable before
he died, and there is sufficient proof for his having done no
more. His acts abundantly attest compliance with the code,
section 230, Civil Code, up to this point.
The final requirement of the section 230, Civil Code, is :
DID BLYTHE TREAT PLAINTIFF AS A LEGITIMATE CHILD ?
One of the counsel for the defense (Dr. Edward R. Tay-
lor) says that it is past all belief that a man, even of Blythe 's
tastes, if he intended to adopt the child, would have left her
with the Perrys. It is not the purpose of this opinion to
panegyrize the Perrys; but, to adopt the remark of the same
learned counsel in adverting to the abuse bestowed by an ad-
versary upon opposing witnesses, even the Perrys may not be
wholly depraved. (Judge's manuscript notes, page 767, line
13, volume 9.)
James Crisp Perry may not be a model man, but his various
occupations have nothing to do with the paternity of the
child and the acknowledgment by Blythe, and the child was
Estate of Blythe. 149
not ill-treated by him, but, as the facts showed and as Blythe
said, was well clad and well cared for while in the keeping
of the Perrys, and was certainly in better hands than with
the Ashcrof ts ; it is shown that the money sent to Julia was
not used for the child, but was appropriated by Joseph, who
by compulsion caused his wife to wTite the letter (Plaintiff's
Exhibit 18A) to Blythe. (It was by force of him, as she
testifies, that this letter was written, and Mrs. Sarah Bailey
corroborates this testimony.) And it was because of his
knowledge of Joseph that the grandfather, Perry, wrote to
Blythe concerning his son in law and his marriage to Julia,
the letter:
PLAINTIFF'S EXHIBIT 17A.
16 Sidmouth Street, Gray's Inn Road,
London (W. C), England, November 12, 1879.
Dear Sir : I take the liberty of addressing you as a father
to a father. I do not know if you are aware that my daugh-
ter Julia is married. She was married on the 25th of Decem-
ber, 1876, very much against my wish, to a worthless fellow
named Joseph Ashcroft. And the money you have sent from
time to time for Flora's maintenance, I have not received one
penny of it, nor the child. Julia has always squandered it
on herself and husband.
The last time little Flora went to her mamma's for two
or three weeks Julia and husband ill-used the child, so that
she was quite ill indeed, so poorly that I would not allow
Flora to remain with her mamma any longer. I have just
heard that Julia has sent you a solicitor's letter. I trust you
will take no notice of it, as it is only to extort money to keep
her husband in idleness and dear Flora will derive no benefit
from it whatever. My daughter's husband sent me a threat-
ening letter about ten days ago, demanding £25. Because I
will not send them the money they think they will frighten
you into sending them some money.
Julia knows that I am very much attached to my little
granddaughter and I will not allow them to have the child
to ill-use and keep her in rags and dirt. Julia and her hus-
band have been to the magistrate to get an order to make uil'
deliver up the child. The magistrate sent an officer to see
150 Coffey's Probate Decisions, Vol. 4.
Flora. The officer asked Flora if slie would go to her mamma
or stop with her grandpapa; the child told him at once that
it would break her heart if I sent her to her mamma. The
magistrate told Julia he could not assist her and that she had
better let the child remain where she was happy and well
cared for, as he ^thought the child was old enough to know
where she was best cared for. The reason Julia and her
husband wishes to have Flora with them is in case you should
make inquiries about her. The last time dear Flora went
round to see her mamma she sent her back with my servant,
saying she and her husband could not be annoyed with the
child there; therefore you cannot wonder if the child has not
got much love for her mamma, as she has never acted as a
mother towards dear Flora.
As a father I am sure you will take my remarks in the
kindly spirit in which they are dictated. I wish to refer to
your dear, little, lively Flora. As I have told you, I have had
the entire charge of her for this last three years — board,
schooling, and clothing and attendance. Of course each year
these charges were heavier, but it is not of that only on which
I write. The little pet will be six years on the 18th of
December, and she is remarkably bright and intelligent for
her age, and although lively and playful as any little kitten
she is nevertheless a delicate and nervous child and remark-
ably sensitive, and will require more than usual care in the
next few years to fit her for the part she may have to play in
the battle of life.
I only wish you could see her, for I am sure you would
be proud of her, and as a man and a father would only be too
anxious to do all that is necessary for her welfare. Indeed
when we speak of her father in her presence, she always says
that could she see you all her little wishes would be granted,
and every night she offers up a prayer that her papa may be
restored and returned to her. Many little anecdotes I might
relate about her love for her absent papa, but space will not
allow.
Now, my dear sir, I do not want anything for keeping dear
Flora. I only want you to invest the £30 a year which you
promised to pay towards her maintenance; if you will place
it in the hands of a trustworthy solicitor, as I am getting up
Estate op Blythe. 151
in years now. I wish you to invest it for Flora's sole use,
that no one can make use of it but Flora, and not even her
till she is of an age to make proper use of it to start her in
life. Dear sir, I am quite willing to clothe and educate dear
Flora. All I want is for you to invest something for Flora
that her mamma and her husband cannot touch. At the
same time you will see the necessity, as the author of her
being, of providing some certain fund for her maintenance,
because we know not what an hour may bring forth.
Thinking thus, I imagine the proper and creditable thing
for you to do would be to send a solicitor to see Flora, when
I could explain things to him; then you could invest a fund
for her maintenance, in which I would be trustee, and see the
interest devoted to her sole use.
I beg you to consider carefully this matter, for bear in
mind I am not writing for myself, but solely in the interest
of your ver}^ promising daughter; and I am sure, when you
reflect upon the physical relations in which you stand, saying
nothing of the moral and religious obligations, I may safely
trust to receive a generous response to this request.
With kisses and best love from dear Flora to her dear papa.
Will send her photo in next letter
Awaiting your reply, I am, yours obediently,
JAMES C. PERRY.
To T. H. Blythe, Esq.,
This letter evoked the following response from Blythe
(Plaintiff's Exhibit 48) dated "December 10, 1878" (evi-
dently mistakenly written for "1879").
PLAINTIFF'S EXHIBIT 48.
San Francisco. 724l^ Market street,
December 10, 1878.
James C. Perry, Esq.
My Dear Sir : Your letter dated November 12 received with
pleasure and thanks.
For some time past I have had serious suspicions that all
was not right in the surroundings of little Flora.
I wrote to her mother some time ago requesting specific
.answers to certain inquiries ^ the answers were not definite or
152 Coffey's Probate Decisions, Vol, 4.
satisfactory. This strengthened my suspicions. Being at
the time much pressed and absorbed in business I had to defer
further investigations and wait developments. Your letter
comes very opportune. Julia never said a word to me of
having been married, Yor timely warning as to the intention
of parties to send me a solicitor's letter is kindly received.
It seems that I have of late been a special object for attempts
at extortion, etc., etc., which makes me particularly alive to
such things. The absence of any effort on my part to find
out the real condition of Flora did not spring from indiffer-
ence to her or her future. The last three years with me has
been an era of storms and trials, but through all I clung to
the hope of being able to arrange my affairs so as to take a
short trip to London and see for myself how things stood.
Although 1 now see signs of a smoother future, with pros-
pects of a partial release from the severe pressure of business
which I have so long been subject to, yet I find it will be some
time before matters will be such as to permit a visit to Lon-
don. In the face of the possibilities and uncertainties of
things your suggestion to invest the £30 per annum in favor
of little Flora in the manner mentioned in your letter is rea-
sonable and prudential and shows a deep interest on your
part in the welfare of your little charge. But that precau-
tion is really not needed, as my Will is already written, and
little Flora is there provided for. The late Governor Haight,
my friend and counsellor for twenty years, was appointed by
the Will Flora's guardian. The Governor being dead, I shall
substitute yourself in his place in a few days — as soon as
time permits me to rewrite the instrument. Your goodness
in proposing to support and educate Flora at your own ex-
pense is fully appreciated, but with the present prospects of
more leisure on my part and other considerations I could not
well accede to the suggestion to lay all this burden upon your
generosity. But I will refer to this again before long. I
cannot express to you how deeply I feel your kindness and
protection you have extended to your little granddaughter.
I hope she may live to bless you for it. Please kiss her for
me and say to her that her papa wants her to be a good little
girl, always to obey her grandpa in everything and never for-
get to pray every night for her papa, who is far away, and.
Estate of Blythe. 153
then he will surely be restored and return to his little
daughter. .With kindest wishes I remain, your most respect-
fully.
TITOS. H. BLYTITE.
P. S. — I should be much pleased to receive Flora's last
photo.
T. H. B.
THE TESTAMENTARY THEORY OF PLAINTIFF.
This letter shoAvs that the writer had made a will, and that
in favor of his child: "My Will is already written, and little
Flora is there provided for. The late Governor Ilaight, my
friend and counsellor for years, was appointed by the Will
Flora's guardian. The Governor being dead, I shall substi-
tute yourself in his place in a few days — as soon as time per-
mits me to rewrite the instrument." The testimony of W.
F. Sayers (clerk for Haight & Taylor, the firm composed of
ex-Governor Haight and Dr. Edward R. Taylor), introduced
to show negatively that there was no will, because there was
no charge for the drawing of a will in their books, has a
tendency to show the contrary fact; he says he remembers
having been called in by ex-Governor Haight to witness Mr.
Blythe's signature; he did not remember whether it was a
will or not ; the ex-governor signed as a witness also ; it was
about the latter part of 1877 or the early part of 1878; INIr.
Blythe signed the document, Sayers and ex-Governor Haight
witnessed the signature; it was about the time of the Nellie
Firmin case; the document was in ex-Governor Haight 's
handwriting ; it was drawn by the governor while Blythe was
in the room ; he had evidently written it immediately before ;
this was in Governor Haight 's inner office. (Official report-
er's transcript, pages 5577-5595, volume 18; judge's manu-
script notes, page 313, volume 4.) This testimony is strongly
confirmatory of the statement made in the letter of December
10, 1878 (1879), hereinbefore recited at length, and supports
the testamentary theory of plaintiff.
Counsel for defense (Dr. Edward R. Taylor) energetically
combats the assumption of acknowledgment and adoption,
and quotes more or less appositely from Mrs. Elizabeth Bar-
rett Browning's poem of "Aurora Leigh," in which he says
154 Coffey's Probate Decisions, Vol. 4.
all the phases of life are seen with the eye of a poet, than
which no eye sees clearer, the most mature of the author's
works, and the one into which (as she herself says) her high-
est convictions upon life and art entered:
" You take this Marion's child, which is her shama
In sight'of men and women, for your child,
Of whom you will not ever feel ashamed?"
" Here, I take the child
To share my cup, to slumber on my knee,
To play his loudest gambol at my foot,
To hold my finger in the public ways,
Till none shall need inquire, 'Whose child is this?'
The gesture saying so tenderly, 'My Own.' "
These lines of poetry, says the counsel, express the whole
law of adoption; the decedent never did this with the child
Florence, he never came in contact with her, never saw her;
he might have taken a trip to England and be back almost in
thirty days, but with all his "idolatrous affection" for this
girl he never did so; his intention may have been so to do,
but if so, it was never executed. It may be answered that
death interfered with its execution.
But it is said he provided for her ; and how did he provide
for her? asks counsel opposing her pretensions. How did he
save her from the "cold charity of London"? And the
counsel proceeds to make a close calculation as to the exact
amount that the decedent contributed to the support of his
child. He might have brought the child here to come spring-
ing to his arms, but he did not do so ; he never intended to do
so, asserts counsel, he intended to take her to Mexico, a for-
eign country; he had a household here into which he might
have brought her — a comfortable home. No matter whether
the woman living there was housekeeper, mistress or wife, she
was a woman capable of caring for a child. The answer to
this argument may be found in the extracts from the evidence
of the defendant Alice Edith Blythe and Dr. Henry de Groot,
hereinbefore quoted.
How did he provide for her? queries counsel. Did he do
his duty as a father?
"The parent entitled to the custody of a child must give
him support and education suitable to his circumstances,"
says section 196, Civil Code.
Estate of Blythe. 155
did blytlle dischaege this duty.
In view of the amount of his gross income, there would
«eem to be some ground for criticism as to the scantiness of
the father's remittances for the maintenance of his child; but
this fact must be considered with the other facts in the case,
one being the absorption of his revenues in the many specula-
tive and unremunerative enterprises which were consuming
his ready resources and occupying his attention and time,
interfering, as he said, with his early return to England ; and
another being that her grandfather Perry never made any
demand for money in any one of their letters, and they were
voluntarily contributing to the support of the child, and what
Blythe sent was so much in addition; besides, she was then
an infant, and did not require a great deal for her support
and education; and whatever may be said of the Perrys, it
cannot be gainsaid that they did much for this girl in attend-
ing to her training, and that she shows the result of careful
culture in mind and good nourishment in body. Blythe 's
declarations and correspondence bear testimony to this, and
the testimony of the Maclennans in regard to her attendance
at school is also of importance. (Official reporter's tran-
script, pages 1890-1979, volume 6; judge's manuscript notes,
pages 109-115, volume 2.)
It would appear, therefore, if the court be correct in its
statements and inferences, that all the elements of the statute,
section 230, Civil Code, have been supplied.
Now as to
THE LAW OF THE CASE.
It is inconceivable, incredible, unthinkable that decedent
could have adopted a child whom he had never seen and who
had never been in California before his death; it could not
have been done ; the law of the domicile of the mother of the
girl governs, and there is in that country (England) no law
of adoption, and, consequently, it could not have been invoked
in favor of the plaintiff-claimant — thus contends counsel ad-
verse to plaintiff; but the assertion or contention that she,
being of an alien extraction, never within this jurisdiction
until after her father's death, could not have been aeknowl-
156 Coffey's Probate Decisions, Vol. 4.
edged and adopted in accordance with the statute of Califor-
nia, is not a valid deduction.
The law must be taken as it is written, and there is no such
limitation in the language of the statute, and no such inter-
pretation within its spirit. It is concerned only with the
acts of the father performed here, the domicile of the father,
no matter where the object of the act is situated, at home or
abroad.
We have been treated to much learning and many refer-
ences more or less remote and recondite, on the general sub-
ject of adoption and institution of heir, and we have had a
very learned and interesting resume of the early history of
jurisprudence in Greece and Rome and England, and a sketch
of the progress of legal science down to date ; but the question
finally resolves itself to the plain and simple proposition :
WHAT IS THE LAW OF CALIFORNIA, AND HOW DOES IT OPERATE?
All that the law of California requires is such recognition
and' acknowledgment as have been here established in evi-
dence. There were good and sufificient reasons why the child
was not brought here up to the time of the father's death.
The great amount of legal learning brought to bear upon this
issue by the counsel adverse to the plaintiff-claimant is as
irrelevant as it is remote and foreign. It has no application
to the circumstances of this case, in the opinion of this court.
Whatever might be the law of England, or of another
country or state, in respect to the status of plaintiff there, it
cannot control the canons of descent in California ; the stat-
utes of succession here are solely dominant : the Civil Code of
California bestows upon plaintiff here the capacity of heir; if
the acts of decedent have been proved, it follows that she is
his heir. It is the statute of California that is under discus-
sion, and not the law of any other country or state. Our
statute settles the question here, and, if I have correctly ap-
prehended its meaning, there is no room for further contro-
versy. One of the objects of adoption and of legitimizing by
adoption is to give the capacity: Justice Fox, In re Jessup,
81 Cal. 422, 21 Pac. 976, 6 L. R. A. 594.
Estate of Blythe, 157
foreign law not applicable to this subject matter.
The laws of descent of England and Scotland are not like
ours, and the questions there decided cannot apply to the sub-
ject matter of this controversy. It may be stated, as a propo-
sition that admits of no dispute, that it is within the legiti-
mate scope and power of the legislature to prescribe canons
of inheritance which shall absolutely determine the course of
descent of all lands in this state. The law of another state
as to the status can have no influence in determining upon
whom the descent is cast : Harvey v. Ball, 32 Ind. 98.
The statute is not limited in its operations to residents of
the state : Kolbe v. People, 85 111. 336.
In Wolfe's Appeal (Pa.), 13 Atl. Rep. 760 (a case which
was connected with the Estate of Samuel Sankey, a will con-
test tried and determined in this probate department, in
which the principle involved in this question incidentally
arose), the supreme court of Pennsylvania decided, April 24,
1888, that the court has jurisdiction to decree an adoption
by a petitioner who lives in another state and who is merely
a temporary resident or sojourner in the country. The pur^
pose of the adoption act, says the court, is to promote the
welfare of the child to be adopted.
The case of Foster v. Waterman, 124 Mass. 592, turned
upon the peculiar statute of New Hampshire, which is unlike
ours, as is shown by the opinion of Chief Justice Gray, which,
being brief, is hereunder quoted in full :
"The law of New Hampshire, as recited in the case stated
(which is the only evidence thereof before us) declares that,
upon a decree of adoption according to that law, the child
shall become to all intents and purposes, including inherit-
ance and all other legal consequences and incidents of the
natural relation of parent and child (except taking property
expressly limited to heirs of the body), the child of the per-
sons adopting him, and contemplates that immediately upon
such decree, their domicile shall become his.
"Such a statute is not to be presumed to extend to a case
in which the domicile of those petitioning for leave to adopt
a child is in another state; the provision in the statute of
New Hampshire, that the decree may be made in the county
where the petitioner or the child resides, implies that the
158 Coffey's Probate Decisions, Vol. 4.
statute is intended to be limited to cases in which all parties
have their domicile in that state, and there is no presumption
in favor of the jurisdiction of a probate court, exercising a
special authority conferred by statute, and not according to
the usual cour^ of proceedings at common law or in chan-
cery: Commonwealth v. Blood, 97 Mass. 538; Galpin v. Page,
18 Wall. 350, 371, 21 L. ed. 959.
"It being admitted in this case that both the parents by
adoption always had their domicile in this commonwealth, it
follows that, upon the facts agreed, the decree in New Hamp-
shire was of no legal effect, and it is unnecessary to consider
how far a legal adoption in another state can confer rights of
inheritance or succession in this commonwealth."
Ross V. Eoss, 129 Mass. 245, 37 Am. Rep. 321, so far from
absolutely settling this case against the plaintiff's claim, does
not cover the circumstances of this controversy. Our statute
(section 230, Civil Code) stands by itself, and is not to be
affected by the principles declared in the Massachusetts cases.
It is neither useful nor necessary to allude further to the eases
cited from other countries or states. It is enough to say that
none of them, in the opinion of this court, can be brought to
bear to defeat the benign purpose of section 230 of our Civil
Code, the language of which is plain and the purpose per-
spicuous.
THE plaintiff's CLAI]\I UNDER SECTION 1387. CIVIL CODE.
We now come to the second statute under which the plain-
tiff claims as heir of the deceased, Thomas H. Blythe — section
1387, Civil Code — which provides that: "Every illegitimate
child is an heir of any person Avho, in writing, signed in the
presence of a competent witness, acknowledges himself to be
the father of such child."
Did Blythe so acknowledge in writing in presence of a
competent witness?
In order to comply with this statute there must be a paper
formally made and executed, and the intention must be clear:
Pina V. Peck, 31 Cal. 359 ; Estate of Sandf ord, 4 Cal. 12.
There must be a competent witness, not a mere spectator,
but a witness in siich case as this must be one who <^f^es the
execution of a paper and attests it as a witness to confirm its
Estate of Blythe. 159
authenticity in anticipation of being called to testify to the
act; there is an absolute necessity that there should be an
attesting witness called for that purpose by the subscriber,
and there must be an express intention on the part of the
latter to make the acknowledgment of the illegitimate as heir.
THE STATUTE SHOULD BE LIBERALLY CONSTRUED.
The statute, section 1387, is to be liberally construed, the
same as all the other sections of the code, with a view to effect
its object aud promote justice (section 4, Civil Code) when
applied to acts occurring since the passage of the codes : In re
Jessup, 81 Cal. 419, 21 Pac. 976, 6 L. R. A. 594.
Now as to the so-called "adoption paper," upon which the
plaintiff seems mainly to rely under this section 1387. Is
there such a paper here established in evidence? If the exe-
cution and contents of such a document be proved, it consti-
tutes an acknowledgment in writing fulfilling the require-
ments of the statute and placing beyond all jeopardy the title
of plaintiff to the estate of the decedent.
If the document recited in the complaint and erroneously
denominated an "adoption paper" have any value, it fur-
nishes a complete muniment of title as heir to the estate of
Thomas H. Blythe. It makes her "an heir," and, if the only
child of an unmarried man, the sole heir.
What is the character of this paper? The counsel for de-
fense (Dr. Edward R. Taylor) says, if it have any character,
it is testamentary, and must be so proved: Code Civ. Proc,
sec. 1339 ; Estate of Kidder, 57 Cal. 282.
This is not so in point of law. It differs radically from a
will, which is ambulatory in its nature and may be altered or
revoked any time before death, but not so with such a paper
as this, which, once executed, is irrevocable; it created a
status that could not thereafter be changed; the moment the
writing is executed in conformity with the statute, the "ille-
gitimate child is an heir," and no subsequent act of either
party can alter that legal relation.
There is no doubt in the mind of the court that the de-
cedent Blythe designed formally, by written instrument, to
adopt the plaintiff. Some testimony to this effect is fur-
nished by the defendant, Alice Edith Blythe, in her cross-
160 Coffey's Probate Decisions, Vol. 4.
examination (judge's manuscript notes, page 558, volume 6),
when she says that, before going down to his ranch the last
time, he spoke to her one morning at breakfast and asked her
how she came to be baptized a Catholic, and she told him it
was done through the lady and gentleman who adopted her
when she was a little child; he said, ''Nonsense, they did not
adopt you — you were simply left there by your mother";
the witness said they had adopted her, because she always
called them "father" and "mother"; Blythe said that that
did not make an adoption; that there must be a legal form;
they should consult lawyers and have it done according to
law; and then he arose from the table, put his hands in his
pockets and paced up and down the floor and said: "Don't
you know that is what I must do for the little one." This
was in the early part of 1883 — January or February. She
knew that that was the time, because then they used to have
fires all the time in the parlor. The testimony of Carr, Estee,
Luttrell — all are to the same effect. Concerning the design of
decedent there can be no doubt, but as to its execution?
In view of the antecedent facts showing the design of the
decedent, the court would be disposed to view favorably testi-
mony to establish its execution and contents, and to resolve
any doubt it might otherwise entertain in favor of the allega-
tion of its existence; but the fact of the execution of such a
document depends entirely upon the testimony of W. H. H.
Hart, one of the attorneys of record for the plaintiff, and one
of the most active of her counsel in the conduct of this cause
in every stage of its progress, who has been permitted by the
court to testify to the very verge of professional propriety,
and possibly beyond, and whom the court could not allow to
go further without, in its judgment, violating the sanctity
of the relations between attorney and client, and while his
evidence as to execution may be accepted, the contents of the
paper remain dependent upon the testimony of the witness
Gutierrez, whose story is circumstantially improbable.
The testimony as to the finding of the paper (Plaintiff's
Exhibit 223) may be true, but it is too great a strain upon
the credulity of a court, already sufficiently taxed, to accept
it (judge's manuscript notes, pages 119, 120, volume 2) ; es-
pecially in view of the evidence of ex- Judge E. D. Sawyer,
Estate of Blythe. 161
who testifies that he had a conversation with Varney in which
he asked him if he (Varney) knew of any adoption paper,
and Varney said he did not; this conversation occurred
eighteen months or two years before the date of testifying
(September 25, 1889), and after the filing of the second
amended complaint, in which the paper is set up ; this was
the only conversation Sawyer had with Varney on that sub-
ject, and he went expressly to interview Varney about the
paper; it was before that time that Varney says he found
the paper, his knowledge of the existence of which he denied
to ex-Judge Sawyer.
This document, of incalculable importance if established,
was not put, as it should have been, in a place of safe deposit,
but placed by its finder where it might easily be lost or de-
stroyed, in his box in room 22 of the old building, 7241/2
Market street.
Varney may be veracious, but in this instance he lacks cor-
roboration, and suffers from impeachment by a witness who
needs no sponsor.
As to the evidence of Gutierrez, little need be said. It is
barely possible his tale may be true, but the court does not
feel justified in believing a witness who had for so long a
time withheld his knowledge of a fact of vital consequence to
the cause of truth; he was present when the public adminis-
trator's attorney and others were searching for papers in the
office of decedent a day or two after the death of Blythe;
he aided some of them in looking for papers; John A.
Wright, attorney. Administrator Roach and his clerk, Mr.
Barry, and Mr. W. H. H. Hart and others were there; and
yet this witness revealed nothing about this paper that he
testifies he compared with Blythe. (See judge's manuscript
notes, page 197, volume 2.) Gutierrez remained a long time
thereafter in the service of the administrator of the estate,
had frequent conversations with Mr. "W. H. H. Hart, the
attorney for plaintiff, who was eager and zealous in quest of
every item of evidence of advantage to his client's cause, and
yet he leaves the service of the administrator with this pre-
cious secret within his breast undivulged, and never hints his
knowledge until long after the trial in court began.
Prob. Dec, Vol. IV— H
162 Coffey's Probate Decisions, Vol. 4.
The testimony as to the comparison of the document is, in
the circumstances narrated by witness, intrinsically improb-
able. It is absurd to say that he wanted the aid of Gutier-
rez to detect or correct Hart's errors in orthography, and
there was no necessity of comparison ; it was already read and
compared between Blythe and Hart, according to the latter 's-
evidence, and the original executed.
It is barely possibly that Gutierrez told the truth, but tak-
ing his testimony all through, it is extremely improbable, and
the court declines to substitute a bare possibility of truth for
an extreme probability of falsehood in a witness so lacking
in the general elements of credibility.
It follows that the case of plaintiff as to the contents of the
so-caUed "adoption" paper, under section 1387, Civil Code,
is not established by the balance of proof, and so the court
finds and determines.
Estate of THOMAS H. BLYTHE, Deceased.
[No. 2401; decided July 31, 1890.]
(CASE OF ALICE EDITH BLYTHE.)
Marriage — Proof "by Conduct. — An isolated instance of a man in-
troducing a woman as his wife does not necessarily establish their
marriage; the whole conduct and behavior of the parties must be
considered.
Evidence — Quality Eather than Quantity. — A court, sitting as a
jury, is not bound to decide in conformity with the declarations of
any number of witnesses, which do not produce conviction, against a
less number or against a presumption or other evidence satisfying
the mind. The rules of evidence favor quality rather than quantity.
Marriage — Its Nature and Importance. — Marriage is more than a
contract; it is a status; an institution of society and its foundation;
it does not come from society, but contrariwise; it is the parent of
society, and it is supremely important that its stability shall be se-
cured; its contraction must be surrounded by safeguards and its
sanctity upheld.
Marriage — Contract or Consent. — The defendant claiming marriage
by contract or consent, followed by mutual assumption of marital
rights and duties under section 5.5 of the Civil Code, the court re-
marked: Consent is the pervading principle of the law. Marriage is
Estate op Blythe, 163
derived from eonsent duly authenticated, indepondent of tlie con-
junctio corporum; publicity is the publication of that consent; and
that consent must go right up to the moment of their taking up life
as husband and wife; it must coexist with the assumption of marital
rights, duties, and obligations.
Marriage — Assumption of Marital Relation. — Section 55 of the Civil
Code declares that if there is no solemnization of a marriage, there
must be consent followed by the assumption of marital rights, duties,
or obligations. Such assumption should be immediate, or at least,
within a reasonable time; if two years intervene between the two
events, the agreement to marry will be deemed abandoned.
Marriage — Assumption of Marital Eights — Cohabitation. — There can-
not be an assumption of marital rights and duties, within the meaning
of section 55 of the Civil Code, without cohabitation, and cohabita-
tion must be a living together as husband and wife. Constancy of
dwelling together is the chief element of cohabitation. Therefore,
for the parties to live in separate houses is totally incompatible with
the notion of matrimonial cohabitation.
Marriage — Consent or Contract — Cohabitation. — The mere fact that
parties who have agreed to become husband and wife thereafter have
sexual intercourse is not sufficient of itself to show a consummation
of the marriage, or that they have assumed toward each other marital
rights, duties, and obligations within the meaning of section 55 of
the Civil Code.
Marriage — Consent and Consummation. — Under section 55 of the
Civil Code, providing that consent followed by a mutual assumption
of marital rights and obligations may constitute marriage, consent
and consummation should be consequent and complete.
Marriage — Insufficiency of Evidence to Prove. — The evidence ia ex-
amined in detail by the court in this case, and is found to be insuffi-
cient to establish a marriage by consent followed by an assumption
of marital rights and obligations. The claimant's contention presents
"a case without legal merit." "She was not the wife and she is not
the widow of the decedent."
11. E. Highton, Esq., and Hon. E. D. Wheeler, counsel for
defendant, Alice Edith Blythe.
COFFEY, J. The counsel for this defendant, in stating
his case to the court, alluded to the very great importance of
an opening statement, which used to be regarded as the chief
argument, and the counsel described this controversy intrin-
sically and viewed upon its merits as one of the great cases
of the century. The questions are of importance to the com-
munity as well as to the litigants; the questions of law are
164 Coffey's Probate Decisions, Vol. 4.
intricate and involved, and by no means easy of solution, and
no case has ever been presented with greater dignity and
courtesy, and, it may be added to what counsel said, with
greater skill of advocacy. It is a peculiar controversy, most
unusual in its nature, unlike most other civil actions; the
court, in a special sense, represents the state; the sole office
of the court is to ascertain and establish the truth. All the
defendant, Alice Edith Blythe, can claim is one-half of this
estate; it may be that as to the rest no one of the claimants
will have finally established a ease, and that ultimately the
half, if not the whole, may escheat to the state of California.
This litigation, says counsel, like all other litigation of a
similar kind, grows out of irregularities; men of obscure
origin who accumulate means, who have no fixed religious
belief or habit, possessing strong appetites, create just such
controversies as this ; many men of millions die, men who have
passed orderly lives, and their estates go through processes
of probate without causing any clamor in the community or
sensation in the press, but not so in a case of this character.
Thomas H. Blythe was no common man; in different cir-
cumstances and with a different original education, his career
would have been other than it was socially; he had no fixed
religious belief; no creed or moral polity controlled his con-
duct, such as is necessary to establish a home or domestic en-
vironment. Under different and better auspices, a man of his
intellectual caliber would undoubtedly have made for himself
a name and founded a family that would have regarded with
pride and respect their ancestor.
WHAT constitutes A CODE MARRIAGE?
But counsel thought that he should be able to show that
whatever irregularities, judged by a conventional or religious
standard, the decedent may have been guilty of in connec-
tion with his relations with this lady defendant, Alice Edith
Blythe, he always treated her affectionately, deferentially and
respectfully, as a husband should treat his wife; although no
ceremonial marriage was contracted, yet there was an incor-
porate union, a marital relation, such as comes within section
55 of the Civil Code of California and other related sections.
Estate of Blythe. 165
Counsel said he proposed and expected to make a case
which should meet the most extreme views of Sharon v.
Sharon, 79 Cal. 633, 22 Pac. 26, 131, and also to make a case
which would constitute a valid marriage according to the ma-
jority opinion in that case; he promised to present a case
which would discriminate between the facts in that case and
in this; there might be an analogy for a certain period as to
the secrecy of the relation, but for the greater part of the
period the conditions of the two cases were opposite. Coun-
sel claimed that he would establish that this lady defendant
and the decedent were man and wife, and became so fully
and completely when they began to live together, in 1880, at
6 O'Farrell street; the marriage was legally complete at that
time.
Whenever the measure of the statute has been filled, the
fact of marriage has been thoroughly and finally established.
The case of Sharon v. Sharon is founded upon an intelligible
principle, sic ita lex scripta est; whether the facts justified
that decision or not, it is the law; it is so written, and we
must accept it: Sharon v. Sharon, decided January 31, 1889,
16 Pac. Rep. 346; see pages 350, 354, 356, 357, Mr. Justice
McKinstry's opinion; also pages 358, 360 and 361; see, also,
in same case concurring opinion of Mr. Justice Temple, 75
Cal. 49. The word "manifested," in section 57, Civil Code,
goes to the fact of proof. A mere secret intimacy is not proof
of marriage, but a marriage may be secret and established
by evidence otherwise.
Mr. Justice Thornton, in the same case, in his dissenting
opinion, stating an extreme view, is good enough, in the esti-
mation of the counsel for the defendant, Alice Edith Blythe,
for the facts of her case (75 Cal. 56), and her case can be
brought within the lines of either the prevailing or dissent-
ing opinions in the first appeal of the Sharon case just cited.
That appeal was from the judgment alone ; the second appeal
was on the motion for new trial, denied in the lower court,
and counsel proposed to show that the defendant in this case
responded to the extent of the definition, in its fullest import,
of the minority opinion in the first appeal and the majority
opinion in the second appeal of Sharon v. Sharon.
166 Coffey's Peobate Decisions, Vol. 4.
the claim op defendant, alice edith blythe.
The defendant, Alice Edith Blythe, is a woman of respec-
table origin, born in this state, educated and accomplished, a
good musician, a fine artist, an excellent housewife, a fit con-
jugal companion for the decedent; and upon the facts in evi-
dence and the ati^thorities, counsel asserted his ability to estab-
lish her claim as set forth in her answer and cross-complaint
in this action, which is here inserted:
1. That on or about the fourth day of April, A. D. 1883, at
the city and county of San Francisco, state of California, the
said Thomas H. Blythe died intestate, then being, and for
many j-ears having been, a citizen and a resident of said city
and county, and then being the owner and in possession of all
and singular the real estate in said second amended complaint
described and mentioned, and of a large quantity of personal
property.
2. That on or about the twelfth day of June, A. D. 1883,
after proceedings duly had in that behalf, the superior court
of the said city and county of San Francisco, by its order
and judgment of that date, in the matter of the estate of said
Thomas H. Blythe, deceased, appointed Philip A. Roach the
administrator of the said estate, and thereupon, to wit, on
the date last aforesaid, letters of administration upon the said
estate were issued to the said Philip A. Roach, who then and
there qualified as said administrator, and has ever since been
and now is the duly appointed, qualified and acting adminis-
trator of the said estate.
3. That the said estate and property of the said Thomas
H. Blythe, deceased, has not, nor has any part thereof, been
distributed, and no proceedings of final distribution thereof
have been instituted.
4. That at the time of the death of the said Thomas H.
Blythe, the defendant and claimant was, and ever since the
month of May, A. D. 1878, had been, the true and lawful
wife of the said Thomas H. Blythe, deceased, and, upon and
according to her information and belief, she then was, ever
since has been, and now is, the sole heir at law of the said
Thomas H. Blythe, deceased, unless, as this defendant and
claimant, according to her infonnation and belief, has alleged,
he left one brother, whose name and whose residence this de-
Estate of Blythe. 167
fendant and claimant does not know, and therefore cannot
state, and as such was, ever since has been, and now is en-
titled to have and receive on distribution one-half of the
whole of the entire estate and property of the said Thomas
H. Blythe, deceased, wheresoever the same may be situated.
5. That, according to her information and belief, the said
Thomas H. Blythe died, leaving him surviving no father, no
mother, no sister, no child, no next of kin, save and except
this defendant and claimant, and probably one brother as
aforesaid.
6. That the facts and circumstances constituting the mar-
riage of this defendant and claimant to the said Thomas H.
Blythe, deceased, and her claim of heirship are as follows, to
wit:
(a) This defendant and claimant was born at lone City,
county of Amador, state of California, A. D. 1855. Her
maiden name was Alice Edith Dickason. Her father, who
at one time was United States marshal for the territory of
Arizona, died A. D. 1878. Her mother is still living. She
attended various schools in the state of California, and among
them Pope's Seminary at Benicia, county of Solano, and Pro-
fessor P. S. Williamson's Classical Seminary, on California
street, San Francisco.
(b) A. D. 1875, she was attending an art studio on Market
street, San Francisco, and had frequent occasion to pass to
and fro through Brooks street, which then was and still is a
small street leading from Geary street to Market street, be-
tween Dupont and Kearney streets alongside of real property
owned by said Thomas H. Blythe, deceased, and now part of
his estate. It was then the habit of said Thomas H. Blythe to
stand on said Brooks street and on Market street, in front
of his own property, with some fine dogs he owned, during a
considerable portion of each day. In passing and repassing,
his attention was attracted to this defendant, and a harmless
flirtation ensued, which resulted in mutual recognition. In
this way their acquaintance was commenced, but it was lim-
ited to mere bowing and a very few words of no importance,
and, on the twenty-eighth day of October, A. D. 1875, at thd
Congregational Church at Oakland, county of Alameda, of
which the Rev. J, K. McLean was the minister, this defend-
168 Coffey's Probate Decisions, Vol. 4.
ant and claimant was married to Pearl L. Peters, a young-
artist of San Francisco. Her acquaintance with the said
Thomas H. Blythe, although she did not then know his name,
then ceased, and was only renewed as hereinafter stated. On
the nineteenth ^ay of February, A. D. 1877, in the then dis-
trict court of the nineteenth judicial district of the state of
California, in and for the city and county of San Francisco,
in an action wherein this defendant and claimant was plain-
tiff and the said Pearl L. Peters was defendant, by the judg-
ment of said court, duly rendered, and on or about the
twenty-fourth day of September, A. D. 1877, duly entered
and recorded, this defendant and claimant was divorced from
the said Pearl L. Peters, on the ground of his willful failure
to provide for her, and allowed to resume her maiden name.
After the dissolution of said marriage, this defendant and
claimant lived for some months with her grandmother at
Stockton, county of San Joaquin, state of California, and
returned to San Francisco, where for a number of months,
and until the latter part of April, A. D. 1878, she earned her
own livelihood by teaching music.
(c) In the early part of May, A. D. 1878, this defendant
and claimant determined to procure a house for herself, in
which she could pursue her profession as a teacher of music,
and found a small cottage on the southeast corner of Geary
and Dupont streets, San Francisco, on land which is part
of the estate here involved, which exactly suited her. There
was a notice to let on this cottage, which referred her to
Thomas H. Blythe, 7241/^ Market street, San Francisco, as
the proprietor. She went to the office of Mr. Blythe, and
upon seeing him discovered that he was the same gentleman,
then somewhat advanced in life, with whom she had formed
a casual acquaintance, A. D. 1875. He recognized her, and
at once seemed to be deeply interested in her, and as they
were frequently interrupted in Mr. Blythe 's office, he re-
quested her to meet him at lunch at his private residence,
which was then at No. 6 O'Farrell street, San Francisco, at
12 o'clock M. of that day. They met accordingly and lunched
together, and he was minute in his inquiries about her former
life, and displayed great interest in her. No conclusion was
reached at that time about the cottage, and within the next
Estate of Blythe. 169
few days they lunched and dined together several times, but
there were no other relations between them. On these occa-
sions he progressively manifested great affection for this de-
fendant and claimant, and urged her repeatedly to be with
him as much as possible and to permit him to become her
protector; but while she liked his appearance and realized
that, in view of his wealth, of which she had become informed,
an alliance with him might be of great advantage to her, she
informed him distinctly that she could only live with him
or be under his protection in the capacity of his wife, and
that there could be no relations between them on any other
conditions. On or about the seventeenth day of May, A. D.
1878, she removed into the cottage aforesaid, where she con-
tinued to live for some time, and where the said Thomas H.
Blythe was nominally her landlord, and she was handed by
him several receipts for rent which she had not paid. At or
about the date of this removal, the said Thomas H. Blythe,
who was or professed to be a spiritualist, and had very pecu-
liar ideas about marriage and the ceremonies connected there-
with, distinctly proposed to this defendant, and claimed that
they should live together as husband and wife, that he should
become aud remain her protector and adviser, and that they
should be mutually faithful to each other so long as both
should live. He gave her a week to think over this proposal.
She had not then contracted toward him the devoted affection
which she afterward felt for him, but she was young and de-
pendent upon her own exertions for her livelihood; she was
away from her parents and from all relatives; she liked his
personal appearance and manners, and she believed that his
wealth and his affection for her would be a guaranty to her
for a comfortable support during her life. At the end of
the week he called upon her at the cottage aforesaid, and she
then and there consented to his proposals as they were then
and there modified and elaborated. He then and there asked
her if she would consent to live with him and be to him a
faithful and loving wife, and if she would accept him as a
faithful and loving husband, and give him the right and the
power to look out for her and protect her during the remain-
der of their joint lives. She placed her hands within his, at
his request, and said she would accept him as her husband,
170 Coffey's Probate Decisions, Vol. 4.
and give him the right and the power to protect and care for
her while they both should live, and at his request she prom-
ised that she would be a faithful and a loving wife to him,
and that she would renounce everything else for him, and
live for him and care for him through health and sickness
and until death. -These pledges were then and there mutually
made by the said Thomas H. Blythe and this defendant and
claimant, both of them then being unmarried and over the age
of twenty-one years, each to the other, as above stated, and,
no other person being present, they mutually called upon
God to witness their sincerity. This ceremony, dictated by
the said Thomas H. Blythe himself, was immediately followed
by cohabitation and by the mutual assumption of marital
rights, duties and obligations, in manner and form herein-
after stated. The marriage of the said Thomas H. Blythe and
chis defendant and claimant, was consented to and consum-
mated, and the pledges of each, speaking for herself posi-
tively, and for the said Thomas H. Blythe upon and accord-
ing to her information and belief, kept down to the date of
his death, on the fourth day of April, A. D. 1883.
(d) At the time of the ceremony aforesaid, the said Thomas
H. Blythe, as he informed this defendant and claimant, . was
having some litigation and much personal difficulty with one
Nellie Firmin, who falsely claimed to be his wife, and who
was a woman of violent temper and conduct; and, until this
litigation and this difficulty were settled, it was mutually
agreed between the said Thomas H. Blythe and this defend-
ant and claimant, that their marriage should be kept as secret
and private as possible, and that they should not ostensibly
and openly live together. By agreement with him at that
time, and for a considerable period afterward, she went by
the name of ]\Irs. A. P. Villette ; and, in order to disarm sus-
picion and avoid any question of propriety, for several months
he gave her receipts for rent of the cottage aforesaid, made
out in that name. She continued to live at that cottage, how-
ever, cohabiting with the said Thomas H. Blythe and enjoying
his society to a considerable extent, and eating her meals
principally with him at No. 6 'Farrell street and elsewhere,
until the first day of October. A. D. 1878 ; when, as the said
Nellie Firmin had obtained some inkling of the relations be-
Estate of Blythe. 171
lueen them, the said Thomas H, Blythe, fearing violence to
himself or to this defendant and claimant from the said Nellie
Firmin, requested her to remove from the said cottage, which
was at No. 28 Dupont street, and secure lodgings with some
respectable and elderly woman, with the understanding that
they were to meet temporarily at his rooms. No. 6 O'Farrell
street, and be together as much as possible under the circum-
stances. She removed accordingly to the house of Mr. and
Mrs. Fagan, No. 7 Mason street, San Francisco. These were
people of unquestionable respectability, and she remained
with them at that place— being with her husband and taking
her meals with him as much as possible — uutil February, A,
D. 1879, when, as her health was delicate, at his suggestion
and request, and in order to give him an opportunity for
exercise and more frequent opportunities for seeing her with-
out attracting attention, she removed from the thickly settled
portion of San Francisco to No. 433 Hayes street, in that city,
where she had a cottage to herself. The litigation and diffi-
culty between the said Thomas H. Blythe and the said Nellie
Firmin was still unsettled, and in fact became aggravated;
and the said Thomas H. Blythe, whose fears of the "^dolence
of the said Nellie Firmin were constant, was afraid to call
upon this defendant and claimant, conspicuously, at the cot-
tage last aforesaid; and she, therefore, continued to visit and
cohabit within and take her meals with him at his apartments
aforesaid. No. 6 O'Farrell street. During all this time, and
at all times after the ceremony aforesaid, she was steadily
under his protection, and he paid all her bills, and they were
together as much as seemed practicable under the existing
conditions.
(e) In the latter part of May, A. D. 1879, this defendant
and claimant had to vacate the cottage last aforesaid rather
suddenly, because the owner wanted to tear it down to make
room for a larger building, and, with the consent and assist-
ance of the said Thomas H. Blythe, her things were packed
up and removed to a room in his own building. No. 7241^
Market street, San Francisco, where this defendant and claim-
ant has ever since had a studio, and she herself remained at
his Apartments, No. 6 O'Farrell street, for about a month.
One night, however, the said Nellie Firmin came to their
172 Coffey ^s Probate Decisions, Vol. 4.
apartments and demanded admission to them, and fearing,
as he did, some disturbance and violence, with the consent
of the said Thomas H. Blythe and at his request, this defend-
ant and claimant went to live with the Sisters of ]\Iercy at St.
Mary's Hospital, on Rincon Hill, San Francisco, and re-
mained with theni; visiting, cohabiting and taking her meals
with the said Thomas H. Blythe as frequently as possible,
until the fall of the year last aforesaid, but until what month
she cannot state, when she removed, with the consent and at
the request of the said Thomas H. Blythe, to the house of
Mrs. Captain Robinson, on Jones street near Eddy street, San
Francisco. One reason for this last removal was that the
rules of St. Mary's Hospital were so strict that, while it was
deemed best, as aforesaid, to keep their marriage secret and
to avoid any publicity as to their relations, it was impossible
for this defendant and claimant to be with her husband as
much as he desired. While living on Jones street up to Jan-
uary, A. D. 1880, although having her room there, she was
with her husband and took her meals with him regularly. In
the early part of the month last aforesaid, at his reque^^t, she
removed all the things she had on Jones street to the building
No. 7241/2 Market street, and until about the last day of
March, of the year last aforesaid, while having her furniture
in that building, took her meals constantly with her husband,
and slept with him in his apartments. No. 6 O'Farrell street.
Just then something occurred which removed the said Thomas
H. Blythe 's apprehensions about the said Nellie Firmin, and
which this defendant subsequently understood was the favor-
able termination of his litigation with her and her departure
from San Francisco. At all events, he felt that he could act
more freely, and, at his request, this defendant and claimant
openly took up her residence with him at 6 O'Farrell street,
and assumed full control and superintendence of his house-
hold affairs. From that time until the period of his death
she lived with him constantly, and was never absent from him
for a single day or night.
(f) They lived together at 6 O'Farrell street until on or
about the twelfth day of October, A. D. 1882, when they re-
moved from 6 O'Farrell street, of which the said Thomas H.
Blythe had a lease which was about to expire, to the upper
Estate of Blythe. 173
floor of his own building, No. 27 Geary street, where they
resided until he died. During all this period she had full
control and superintendence of his household affairs. She
carried the keys of their rooms. She directed the servants,
and was known to them as his wife. She made all the pur-
chases of groceries, meats, vegetables and such other articles
as were necessary in a household. She made these purchases
and contracted some bills, of w^hich she holds the receipts, in
his name and with his knowledge and consent and as his v/ife.
She slept with him every night, as his wife. She presided
at his table, where they had numerous guests, to many of
whom she was introduced, and by whom she was treated, as
his wife. He recognized and acknowledged her as his wife
to a large number of persons. She received and paid social
visits as his wife. Numerous persons addressed her in his
presence as his wife. He used to her constantly, and in the
presence of others, the endearing and affectionate expressions
which a husband usually addresses to his wife. He formed
and expressed plans for the future, founded upon their re-
lations as husband and wife. He called her his wife when
they were alpne together, as well as in the presence of other
people. He treated her with the respect and courtesy due a
wife. He supplied all her wants and paid all her bills as a
husband does for his wife. She addressed and treated him
as her husband, without dissent and with expressions of ap-
proval on his part. Their conversations and discussions, both
alone and before others, were such as take place only between
husband and wife. He never spoke or acted to her at any
time, either when alone or in the society of other persons, as
his mistress, or with anything less than with the courtesy and
respect which a husband owes to his wife. In every particu-
lar as she understands marital rights, duties and obligations,
they were exercised, observed and fulfilled between herself
and husband. He kept no secrets from her, upon and accord-
ing to her information and belief, and treated her with per-
fect confidence in all personal matters and even in all his
business affairs. His prospects for the future were all en-
tertained and discussed by him with her without reserve, and
on the basis of the marital relations between them. He
174 Coffey's Probate Decisions, Vol. 4.
publicly and openly acknowledged and declared this defend-
ant and claimant to be his wife.
7. That a large part of the estate and property of the said
Thomas H. Blythe, at the time of his death, but what part
or portions thereof this defendant does not know, and there-
fore cannot state, was and it still is community property of
the said Thomas H. Blythe, deceased, and this defendant and
claimant, acquired by the said Thomas H. Blythe, deceased,
after his marriage to this defendant and claimant, and not by
gift, devise, descent or bequest.
THE STORY OF ALICE EDITH BLYTHE AS TOLD BY HERSELF IN EVI-
DENCE,
The story of Alice Edith Blj^the as told by herself in her
evidence is that she was bom the 18th of March, 1855, at
lone City, Amador county, California ; had one brother Willis
Courtney Dickason ; he was born in 1857 ; he was drowned
at Benicia many j-ears ago; cannot remember how long she
lived in lone; first remember being in Monterey; was very
small; simply a memory; remember being in Calaveras and
Tuolumne counties; lived in Altaville with her father, mother
and brother; lived in Angel's Camp with her aunt, Mrs. Alice
Stickles; from Monterey they went to Cloverdale; stopped
with the family of Daniel Sink; her grandfather was Thomas
Gillette; he lived partly at Salinas, and partly in Napa
county, where he had a stock ranch; he lived also in San
Bernardino ; it was in 1861 that they went to Cloverdale ; her
mother went there for her health, which was bad ; thence they
went to Angel's Camp, and after to Shaw's Flat, where the
mother taught school for a while. After they went to Mr.
Ramie's ranch, near Columbia, Tuolumne county; mother
and brother went to the Sandwich Islands, and left the wit-
ness with Ramie; they sent her to a Catholic school in the
town of Columbia, where she remained for about a year; after
that her mother sent for her, she went to her aunt's at
Angel's; remained there but a short time, Avhen her mother
came up' and took her away, and they came to San Fran-
cisco. Afterward they went to Sacramento ; her mother left
her with ]\Ir. and Mrs. Harris; remained there and went to
the public schools; then her mother came and took her to
Estate op Blythe. 175
Stockton; was there quite a while; her mother then took her
to Benicia and left her in St. Catherine's Convent; in 1866
she gave the name "Alice Weston" because her mother had
married George Weston, of Austin, Nevada ; remained in the
convent until October, 1868, when her mother brought her to
San Francisco, and placed her in Madame Swedenstierna's
seminary a short time, when her mother took her to Los Ange-
les in the latter part of the same year, 1868; her mother
placed her there in the convent school; stayed there until
June, 1869, and took her then to Prescott, Arizona; her
mother's husband had died meanwhile; when she married
again, James Morgan, who had a ranch in Petaluma ; he
treated mother badly; in Los Angeles she secured a divorce
from him; then it turned out that witness' own father, Mr.
Dickason was living, although her mother had for years
mourned him as dead, he having been reported as killed in
the war. He demanded the custody of his only daughter,
and her mother took her to him at Prescott, Arizona, where
he had a ranch at Agua Frio; father died in 1878, in July;
witness learned from him that he had been a policeman in
San Francisco, that he was a captain of volunteers in the war ;
he had been also in the saloon and hotel business in Monterey ;
he was for four years United States marshal in Arizona.
Witness remained in Prescott until May, 1871, when she came
here to San Francisco alone, and went to the convent at Ben-
icia; after awhile went to Pope's Seminary in the same town,
afterward Snell's Seminary; remained there perhaps eight
months or so; came down and went to the Rev. Williamson's
Classical Seminary on California street, south side, between
Kearny and Dupont streets; was there until the latter part
of 1873; first boarded and afterward was a day scholar; then
lived with her mother at 30 Moss street; studied the ordi-
nary branches of knowledge, and in addition music and lan-
guages, French, Spanish and the guitar; commenced to study
drawing ; that was independent of the school ; later on, paint-
ing. A card attracted her attention in the window of a music
store on Market street, opposite the Blythe Block, ** Pearl
Peters, Teacher of Drawing and Painting," and she inquired
of the proprietor as to the attainments of the teacher, and
he directed her across the way to the studio of Mr. Peters;
17G Coffey's Probate Decisions, Vol. 4,
she engaged him to give her lessons, independently of the
school; her studies with him were interrupted by a visit she
made to Arizona in 1874, the latter part ; she returned in the
early part of 1875; knew while there a man named Charles
W. Beach; he was proprietor of the "Arizona Miner" and
also afterward kept a w^ayside inn ; he was killed, she heard,
by being shot through a window, since this trial began; in
1874, her mother undertook to start a lodging-house at 817
Mission street, but that venture was not carried out; about
that time she went to visit her uncle, Gillette, near Salinas;
stayed there about a month; came back and stayed at Mrs.
Fagan's, 930 Mission street, until the latter part of 1874;
then went to Arizona, and upon her return went again to
Mrs. Fagan's; it was in 1874 that she visited her grandfather
in San Bernardino; witness was married in October, 1875;
she married Pearl Lawrence Peters; her marriage was kept
secret from her mother, because her mother was very much
opposed to it; witnes.s remained at Mrs. Fagan's and visited
the studio of Mr. Peters, and sometimes stopped over from
Saturday until Monday; went to San Bernardino in Novem-
ber, 1875 ; her grandfather, Gillette, had a large livery-stable
and private residence ; she was living there with his little boy
and daughter; witness has forgotten the name of the daugh-
ter; her grandfather was married twice; he had just lost the
second wife when he sent for witness; he got hurt and sent
for her; witness knew a man named Fred Cook, a photog-
rapher; he lived once at Woodside, near Prescott, Arizona;
also at Agua Frio, at her own father's house; was never
married to him; he was a good friend of her family; he did
not stop at her grandfather's house at San Bernardino; wit-
ness met Mrs. Gutierrez in 1876 ; knew her sister, Mrs. Pietra
Doyle, who lived in the same house, witness' grandfather 's
house ; Mrs. Doyle occupied two rooms in that house in 1876 ;
became very well acquainted with them; Mrs. Gutierrez's
name was Mrs. Pedro Pacheco when she first met her in Los
Angeles; when witness went to San Bernardino she was
known as Alice Dickason; she kept her marriage secret; her
mother and father were contributing to her support ; her hus-
band was not well-off, and her grandfather was assisting her,
and giving her a home, and she did not wish to tell them;
Estate of Blythe, 177
Mr. Peters came first to Los Angeles, in May or June, 1876 ;
he stopped at a hotel and she stopped with Mrs. Sanchez, the
mother of Mrs. Gutierrez; he came to San Bernardino after-
ward, and stayed a few days, and then returned to San Fran-
cisco ; she came to San Francisco after a few weel«, and went
to 930 Mission street, Mrs. Fagan's; witness was at work in
1877; went up to Stockton to her mother, remained but a
short time, and returned to San Francisco; had apartments at
Garcia 's house, corner Broadway and Stockton streets; after-
ward moved to Howard street and attempted to teach draw-
ing and painting, but had very few pupils; moved then to
Post street, between Kearny and Dupont streets ; then to the
corner of Dupont and Geary street, a cottage where the ' ' City
of Paris" now stands; moved then about October, 1878, to
7 Mason street; thence to 433 Hayes street, Mrs. Joice; then
witness attended Tojetti's Art School, on Leavenworth street;
when she moved to Dupont and Geary street, she took no
more pupils; when she moved from Hayes street she fitted
up a room for a studio at 724^/^ Market street, and went to
live at the Sisters of Mercy on Rincon Hill; her room on
Market street was No. 15, directly opposite Mr. Blythe 's
office, room 21 ; remained with the Sisters only a few months ;
then in the latter part of 1879, she fitted up two more rooms
at her studio, and stopped there some time ; in October or No-
vember, 1879, her mother came up from Arizona; witness se-
cured rooms for her on Jones street, above Turk street, at
the house of Mrs. Ford, who was an old friend of her mother's
from Shaw's Flat, a daughter of Mrs. Markley; remained
there over the holidays; in January, 1880, she occupied the
rooms she had fixed up at 7241^ Market street; continued
such occupancy until April, 1880 ; then used some of the fur-
niture from Mr. Blythe 's office; she went over to 6 O'Farrell
street, but retained one of the rooms, No. 17, for a studio ;
still retain that room for that purpose; occupied 6 O'Farrell
street from April, 1880, to October, 1882 ; in May, 1880. she
began to attend the School of Design, kept at it until 1881,
for about a year, as a permanent scholar, and afterward went
there to sketch by the hour; in October, 1882, moved to 27
Geary street, and remained there until 1885 or 1886 ; witness
identifies a certificate of marriage between Pearl L. Peters
Prob. Dec, Vol. IV — 12
178 Coffey's Probate Decisions, Vol. 4.
and Alice E. Dickason, October 28th, 1875, by Rev. J. K. Mc-
Lean, Oakland, and says she is the person named in that
paper; was divorced February 19, 1877, by decree of the nine-
teenth district court, E. D. Wheeler, Judge, which is produced
and admitted in evidence; witness knew Thomas H. Blythe;
first saw him in: the latter part of 1873, or the first part of
1874, on Market street, near Dupont street, in that vicinity,
as she was passing to and from school ; going from Moss street
she then came through on Geary street, frequently passed
through Brooks street or Floral Grove on her waj^ to the studio
of Mr. Peters, which was opposite the Blythe Block on Mar-
ket street; used to notice Mr. Blj^the, a dignified looking old
gentleman, well dressed; used to wear, witness thinlis, some-
thing unusual in those days, at least for her to notice, a white
vest; saw him a good deal on the street until she went to
Arizona; he saw her; they began a sort of mute flirtation;
they met so frequently that he at one time lifted his hat to
her, and she retuimed his bow; this went on until she left for
Arizona ; did not know his name then, or anything about him ;
next saw him in May, 1878 ; she was directed to go to his office
to see about a cottage at the corner of Geary and Dupont
streets; her grandmother directed her to look up a quiet place
in a central part of town where they could live; she went to
his office, 724^ Market street, in the forenoon; he was there;
she went into the main office; he was sitting at the desk, writ-
ing; she told him her business; he told her he was then very
busy, but he gave her a slip of paper with his address, 6
O'Farrell street, and told her to come there at 12 o'clock and
he would continue the conversation ; he kept walking up and
do^vn the room, and said, "You have a very nice foot"; she
was very much embarrassed, but said nothing; then he sat
down and after a little he arose again and paced the room,
and suddenly said, "Don't you know you have an effect on
me that no woman has had for a long time?" Witness went
to 6 'Farrell street at noon ; he was not in at first, but when
he came he asked her to have lunch with him, and she did
so, and he asked her to play the piano for him ; then he said
he had to go back to his office, and he told her to go and in-
spect the cottage, and suggest any alterations or changes,
and he would make them, and to come back in the evening;
Estate of Blytiie. 179
she came Isack after her own dinner; they spoke ahout the
cottage mainly; she went through it there; subsequently she
went there and to his office about every day; the cottage was
ready for occupancy on the 17th of May, when she took pos-
session; between the first iutervicAv with him and that day,
had conversations with him at 6 O'Farrell street; a day or
two after she remembers he asked her very closely about her
life, w^hether she was married or not; whether she maintained
herself, and what were her resources. She told him. He said
he could see that she was worried and troubled, too frail to
battle alone, and that he wished to become her friend, a pro-
tector to her — in fact, her husband. She first told him that
she did not think he meant that; she wished time to think
over it, and requested him to take time; he consented to do
so. Before the 17th of May he told her a good deal about
his then recent trouble with Miss Firmin, that he feared for
his life and that he would have to be married secretly; wit-
ness told him if she should accept him she wanted some cere-
mony or contract made, that she wanted the matter to be per-
manently fixed if it were to be done privately or secretly;
that she had had a good deal of trouble in her life, and wanted
the matter so arranged that it should be a matter of life or
death forever. Most of their conversation was about the fur-
nishing of the cottage, Dupont and Geary streets ; he told her
that when it was finished and furnished completely, he wished
her to let him know, as he wished to go over and look at it;
she moved into the cottage on the 17th of May ; she occupied
the whole of the top floor; beneath there was a grocery store;
she had a colored man to come around each morning to clean
up, and a Chinese cook; she did not have the studio on Mar-
ket street then; Mr. Blythe came over about two days after
she moved in; that was about 5 or 6 o'clock in the evening;
he stayed for about an hour, she had taken dinner with him,
and she came home rather annoyed, and he followed her; he
begged her to forgive him for the manner in which he had
acted, that he loved her very dearly, and he could not re-
strain his feelings ; she began to cry, and he said if she would
repeat what he would dictate, it would be as good as going
to church ; he said he wished her to marry him ; he asked her
to place her hand in his; he asked her if she w^as willing to
180 Coffey's Probate Decisions, Vol. 4.
renouBce her folks and give up all for him, to care for him
in sickness and health, and to live with him as his wife until
death did them part; she said she would; she then asked
him if he would repeat what he would do for her, and he did,
and then said "Amen," and she said the same. During the
week before this lie asked her if she would consent to be mar-
ried by a spiritual ceremony; she said she didn't understand
anything about spiritualism; that she was a Catholic; she was
baptized about 1863, when she was with Mr. and Mrs. Ramie ;
the incident that took place at O'Farrell street that annoyed
her was an attempt on his part to kiss and caress her at the
table, and she went into the parlor and he followed her and
there repeated his attempt to embrace her; she resisted and
went home ; he had prior to that time made an attempt of that
kind; at the time they went through the formula at the cot-
tage, she admired Mr. Blythe \ery much, respected him, had
a deep regard for him, and felt that she could place confidence
in him; that he would do whatever he promised; she had
then some pecuniary resources, a few hundred dollars ; had
no relatives here at that time ; after the pledges were made
she went over to 6 O'Farrell street and remained there all
night; she had a piano and guitar at the cottage; he fre-
quently came over to the cottage in the afternoons at odd
hours from the office; she moved to 7 Mason street, Mrs.
Fagan's, for several reasons; one was that Nellie Firmin was
troubling him at that time; a second one was that her health
was not very good, and the third was that he was then think-
ing of tearing that building down, and he advised her to find
some nice old lady to stay with until he could have her per-
manently with him at 6 O'Farrell street; she remained at 7
Mason street from October, 1876, to February, 1879 ; she took
her meals at 6 O'Farrell street and slept there most of the
time ; when she was not feeling well she remained at 7 Mason
street, and he never came there ; Mr. Blythe told her that Mrs.
Fagan called at his office and told him that the witness' health
was getting poor, and that he ought to send better food than
she, Mrs. Fagan, was able to furnish; that he ought to send
up some wine and ale; that was about all Mr. Blythe told
witness of ]Mrs. Fagan's visit to his office; ]\Irs. Fagan ad-
dressed her simply as "Alice" or "my dear child "j witness
Estate of Blytiie. 181
was paying $75 per month; she paid it, and she thinks Mr.
Blythe once did so; witness received money from him; re-
ceived from four to five hundred dollars when she was fur-
nishing her cottage; a few weeks after he gave her two or
three hundred dollars to get a coat; he gave her some money
to pay for some earrings, again to buy some jewelry, and also
to buy a ring; this was at 28 Dupont street; she purchased
all these articles; she didn't give up the cottage till October,
but spent but little time there; spent most of her time at 6
O'Farrell street; witness identifies several papers presented
to her marked "A. E. B. Ex. W 3," "May 17, 1878, X 3,
June 17, 1878, Y 3, July 15, 1878, and Z 3, August 15, 1878";
all the witness remembers of these papers is that Mr. Varney
gave them to her from time to time, "Received of Mrs. Vil-
lette $25 for rent of rooms, 28 Dupont street ' ' ; she told Mr.
Blythe at first that the cottage was for her grandmother, ]\Irs.
Gillette, and he simply got the name down wrong, her grand-
mother did not come here ; witness did not send her word to
come, as she had agreed to do; she thinks Mr. Varney gave
her the first receipt ; sometimes Thomas Dunn, the watchman,
would bring her the receipt; witness told Mr. Blythe that he
got the name wrong in the receipt and he said, "Never mind,
let it pass"; he said it would be better to assume the name
in the present circumstances, as her life was in danger, as
her lately divorced husband had attempted to annoy her, and
the woman Nellie Firmin was annoying him, and it would
be better for the present to keep the marriage secret ; she took
nearly all her meals at 6 'Farrell street ; occasionally would
breakfast alone at the cottage; at 6 O'Farrell street they sat
together' at the table ; there was a colored woman servant.
Mary Stepney, who waited on the table and took care of the
rooms and did the housework ; witness slept there in the same
room with Mr. Blythe ; there was a piano upon which the wit-
ness played; Mr. Blythe was giving her money all the time
to pay the China boy, the grocery bills, the oyster bills and
other expenses; at No. 7 Mason street he would give her
money for many things that she desired; while there she did
some painting; among other pictures she painted one under
the direction of Tojetti, "The Peruvian Girl"; she thinks
that is in her studio ; another is in the possession of Mr. Win-
182 Coffey's Probate Decisions, Vol. 4.
del; vvhile she was rooming at 7 Mason street witness would
go every day to 6 'Farrell street and do very much the same
as she did when at 28 Dupont street, the cottage ; she saw
Nellie Firmin once at 6 'Farrell street; that was when wit-
ness was in Hayes Valley; the witness slept at 6 'Farrell
street in the same room and in the same bed with Mr. Blythe ;
from 7 Mason street she went to 433 Hayes street, the cottage
rented of Mrs. Joice in February, 1879 ; she hired the cottage
and stayed there until June; she furnished the cottage from
wiiat she had retained at 28 Dupont street ; occupied the whole
of the cottage, about eight rooms ; had a colored cook, Thomp-
son, who was there always ; she took her dinner at- 6 'Far-
rell street and the other meals at the cottage ; most of the time
she slept at 6 'Farrell street; saw Mr. Blythe nearly every
day; she paid rent with the money he furnished her, and
the other current expenses; while witness was living on Rin-
con Hill with the Sisters, she visited 6 'Farrell street every
day; she slept at the Sisters' house, but on Saturdays and
Sundays she stayed with Mr. Blythe at 6 'Farrell street;
she took breakfast, lunch and dinner there every day; she
painted nearly all the time; cannot remember all the paint-
ings; one was a large picture called *'My Roses," life-size,
a fancy picture of a girl's head; her studio then was right
opposite Mr. Blythe 's office; her mother came up in Novem-
ber, 1879, and she went with her to Jones street, near Eddy,
to the house of Mrs. Herson, formerly Mary IMarkley ; wi'tness
had a conversation with Mr. Blythe in which he complained
that he didn't see as much of her as he desired, and she said
that her mother was up for the holidays, and she desired
some of her society; this was while her mother and she were
on Jones street ; he said that there should be no more of that,
and as soon as her mother returned she should stay perma-
nently at 6 'Farrell street; Mr. Blythe paid her bills on
Jones street; her mother knew nothing at that time of her
relations with Mr. Blythe; her mother left there first; from
Jones street witness moved to 724% Market street; she fur-
nished two rooms 9-11 Geary street, for her colored cook,
whom Mr. Blythe retained; when she furnished three rooms
at 7241/2 Market street, Mr. Blythe told her to make herself
comfortable for a few months, as he thought he would then.
Estate of Blytae. 183
have his affairs fixed with Miss Firmin and it would be pos-
sible for her to reside permaueutly at 6 O'Farrell street;
during this time she looked after affairs at the latter place;
moved to that house in March or April, 1880; he told her that
it was absolutely necessary for her to go there and take com-
plete charge of the house, as he was troubled with tlie servants ;
when she moved over there she recarpeted two of the rooms,
put new carpets in; when she went to 6 O'Farrell street she
took complete charge of the house; in 1880, in the spring or
summer, they rented a room at the head of the stairs to
Gershom P. Jessup; he was not a permanent roomer, but
came and went for over three months; he was an old friend
of Mr. Blythe's; all the furniture was very handsome and
fine ; Axminster carpets and the furnishings elegant ; ordinar-
ily they spent the evenings at home ; sometimes they went out
for a walk, and occasionally took a ride: seldom went to
places of amusement, once or twice to the Baldwin theater;
from April, 1880, to October, 1882, they seldom went out;
could not specify how many times; they had very little com-
pany there ; in 1880 when he was building the Coquille he had
many visitors, mostly Spanish, and among others, Commodore
Monasterio, General Andrade, Consul Pritchard, and others
whose names she does not recall; she knew James E. Carr;
remembered his calling there one evening ; does not remember
his dining there; she sat at the table every meal, except when
she might happen to be late.
The formula of marriage took place the 19th of May, about
two days after she moved into the cottage; proposals were
made about nine or ten days prior to that; at that time he
used hair dye ; he was ruddy, rosy-cheeked, bright and viva-
cious in manner, quick-stepped, dressed rather neatly; she
thought him an extremely handsome man; during the last
years of his life he looked very poorly; he had ceased to use
hair dye, and his hair and mustache were white; he told her
at the cottage that Nellie Firmin was annoying him very
greatly, and he apprehended violence from her; that she once
concealed a man in his house with a design upon his life ; one
reason why the witness moved out to 433 Hayes street was
that her health was not good, and Mr. Blythe said that she
ought to have more exercise and occupation, and he thought
184 Coffey's Probate Decisions, Vol. 4.-
it would be better if she were living out a little nearer the
country, and he got her some chickens, and she had a sort of
chicken-house on Hayes street; at the time she lived in the
house of the Sisters on Rincon Hill, she made a disclosure to
the Superior Mother Mary Francis of the relations between
Mr. Blythe and herself; she was preparing for her first com-
munion, was receiving instructions from her, and in that way
it came about that she told her of the secret marriage and of
the reason for keeping the marriage secret ; she accounted for
her occasional absences from the Sisters' house because she
was secretly married and her husband insisted upon seeing her
every day; when she removed from Rincon Hill to Mrs. Her-
son's, it was because Mr. Blythe said he was dissatisfied be-
cause he did not see her more frequently; the rules of the
Sisters' institution were so strict that it was almost impossible
to absent herself except on Saturdays or Sundays ; Mr. Blythe
moved from 6 O'Farrell street because his lease was about to
expire ; some rooms were let to lodgers at 6 'Farrell street ;
the servants came to her for instructions; they sometimes
called her IMadam, sometimes "Mrs. Blythe"; she purchased
the household supplies; sometimes the servants did; she paid
most of the bills ; he paid some of them ; he often went to see
the goods which she purchased for herself, and selected goods
for her; in fact, everything she bought for herself he wanted
to see; sometimes she went with him and looked at articles
for himself, such as neckties and shirts, at Beamish 's, corner
Third and Market streets; he sometimes had money in his
room, kept it in a box at the foot of the bed; sometimes as
high as thirty or forty dollars, sometimes a few dollars; wit-
ness knew an old gentleman named Colonel Ryerson; he was
at the house ; took dinner there once in May, 1881 ; Mr. Pom-
roy was also there one time at dinner when she was there ; it
was at 27 Geary street that Mr.' Pomroy called ; Mr. Yberri
from Mazatlan stopped at 6 O'Farrell street for about two
weeks; he took lunch and dinner with them; while at 6
O'Farrell street witness visited some ladies she had formerly
roomed with, among others Mrs. Fitzpatrick, Mrs. Phillips
and Miss Phillips, Mrs. Jones, Mrs. Dunlap, ]\Irs. Joice's
daughter, and some of her old schoolmates; she visited Mrs.
Hadeler, Mrs. Ford, Mrs. Gutierrez when she came up here
Estate op Blythb. 185
and Mrs. Pietra Doyle; witness remembers nothing especial
of what Mr. Blythe said to her in the presence of Mr. Yberri
and Andrade; she cannot remember anything particularly
that tradespeople said; at one time they called her Mrs.
Villette, at another time those who knew her mother called her
Miss Dickason; later on some called her Mrs. Blythe; when
Mr. Fletcher came to leave milk he invariably called her Mrs.
Blythe, so did Mr. Hansen, Mr. Maguire, the poultry dealer,
and various others with whom she traded in 1882 and 1883;
when she visited Mrs. Phillips, an old schoolmate, she went
as Miss Dickason, and so Mrs. Phillips called her; subse-
quently she had a conversation with her mother, and after-
ward she and Mrs. Phillips called her Mrs. Blythe, as did
some other ladies, as already mentioned; Mr. Blythe used to
speak to her when alone; she cannot remember all he said;
he would call her "My dear," sometimes "Baby," and when
she did anything especially pleasing to him he would say
"You are a good little wife," or, "My dear little wife";
she remembers a visit from Mrs. Ford and Miss Newell at
27 Geary street; she met them in the hall as she was going
into the dining-room, and Mr. Blythe introduced her to
them; he showed them her plants, and of course the wonder-
ful eat; they said, "Mr. Blythe, you must be very happy in
your little home here " ; he said, * * Yes, I and my sweetheart
are very happy"; Mr. Blythe gave her permission to attend
a ball once a year; she went to a masquerade; once went to
a ball ; a young man escorted her to the door and Mr. Blythe
attended her afterward ; she remembers the last time he went
to Mexico and when he returned; he said, when he looked
around the room, that he did not know whether he was in his
own home or not, and he complimented her upon what she
had done, and said she had been a good little wife during
his absence; upon returning home, when his business affairs
had gone all right during the day, he would come home in a
very good humor ; would act like a schoolboy ; would play with
the cat, and would be very affectionate ; when his affairs were
not so satisfactory, he would be morose, would act like a baby
and want to be petted, would lie on the lounge and want her
to bathe his head; witness addressed him sometimes as "Mr.
Blythe," "My dear," "My darling," "My sweetheart,"
186 Coffey's Probate Decisions, Vol. 4.
^'My friend," and sometimes "My uncle"; she did not use
endearing terms to him in the presence of others; she never
treated him with disrespect; he used to tell her at first a great
deal about Nellie Firmin; afterward he told her about him-
self, when he lived in England, in France, in Naples; he
never used to speak about his business affairs; he said he
wanted to sell one-half the block, and that Luning was after
it ; that as soon as the latter reached a certain figure he would
sell and put the money into his Mexican scheme, and that he
Avould retain the other half during his life; he intended to
settle all his Mexican land ; he would be landlord over a great
many persons, and he would sell lands on reasonable terms;
he said his projects w^ould take twenty millions to carry out,
and would hardly be finished in his lifetime ; he also intended
to send to England eventually and bring his little girl out and
have her here, but first he would have to sell some of his prop-
erty; he said that the next time he went down he would take
witness, but she must expect some discomfort, and things
were very rough there then.
A paper that was shown to witness, marked "A. E. B.'s
Exhibit A4, " was identified as a sketch or plan of the house
that was to be built in Mexico, that was drawn by Mr.
Andrade one evening after dinner at 27 Geary street; the
plan or diagram contained diiferent apartments, parlors, a
court in the center, a music-room and studying-room for
Florence; witness says they occupied the whole of the top
floor at 27 Geary street ; she attended to the household affairs
in the same way as at 6 O'Farrell street; had no regular
allowance for household expenses; he gave her money in the
same way as before ; he wished her to be constantly with him ;
hardly ever wanted her to be out of his sight; before that,
she attended the Art School, but latterly he wanted her to be
at home all the time ; she attended the old Art School on Pine
street from 1873 ; she attended it up to the year 1880, after-
ward as a special student; Mr. Blythe used often to take a
walk on Sundays with his dog; on Saturday night he would
like to have a little supper, when he v.ould take a good deal
of wine; would invite some friends there to have what he
-called a jolly time.
i
Estate op Blythe. 187
"Witness knew Charles W. Beach ; he called upon her at 27
Geary street to see his "little Arizona girl," as he called her;
he said to Mr. Blythe that he didn't know she was married,
or he would not call her his "little Arizona girl"; Mr. Blythe
laughed; witness identifies a letter which she received from
Mr. Beach, a letter of condolence, after Mr. Blythe 's death,
dated April 6th ; witness had a music teacher whom she paid,
but Mr. Blythe gave her the money ; she thinks it was in 1879
that she first heard of the Colorado river land; she assisted
him in composing a speech in which there was considerable
said about our sister republic and the feelings he had to the
Mexican people, and his intention to go there and settle with
his family and spend his days there; the speech was never
delivered, because he was not able to deliver it, but it was pre-
sented to Commodore Monasterio; first heard of his Mexi(jan
plans in 1878; she dictated the first letter to the child Flor-
ence, and followed her studies and took great interest in her;
in fact, if she had been her own child, could not have taken
greater interest, and so she said to him ; they had as household
pets at 6 O'Farrell street two cats, "Bob," or "Sir Robert,"
"Squint," and a little shaggy dog and some pigeons; at 27
Geary street they had the cats and the dog * * General Grant, ' '
which she kept until two years after Mr. Blythe 's death, when
he was poisoned.
Witness identified several bills for domestic goods from
tradesmen; she remembers when Mrs. Ford came to see them
at 6 'Farrell street ; recalls nothing special about that ; they
had some wine, treated her nicely; remembers that colored
porter, Henry Williams; he used to bring her things from
Mr. Blythe, and he used to bring her some nice fish occasion-
ally; she remembers Dr. Maldonado, a witness here, who was
formerly a druggist on Geary street, opposite 27 Geary street ;
remembers Philip Scattiny, who kept an oyster saloon at 15
Stockton street, and his predecessor, a lady, Mrs. Dickinson ;
witness went there occasionally; she remembers Charles E.
Edwards, the butcher with whom she dealt on Fourth street ;
began dealing there in 1882; identifies a bill, "A. E. B.'s
Exhibit N3," dated April 14, 1883.; she remembers Mr. Web-
ster, who hired a room at 6 O'Farrell street; she knows the
young man, Herman Kohn, who was a witness; was present
188 Coffey's Probate Decisions, Vol. 4.
in his store when he addressed her as Miss Dickason, and Mr.
Blythe told him she was no longer Miss Dickason, but Mrs.
Blythe; she remembers also Mr. Edward Neumann, Mr.
Tosteman, Mrs. Feeney, Mrs. Frances Pique, Juan F. Bernal^
Mrs. Sanchez; remembers Wong Louis, the Chinese servant;
after dinner each day he used to go out and return about
10 'clock ; on Sundays he used to go out a little earlier ; she
knows the jeweler, Nathan J. Hyman, Morris Raphael and
Henry Myers; witness remembers the incident of April 4,
1883; Mr. Blythe rose as usual, seemed to feel in good health,
but was very hurried; he had to hurry up to his office; neg-
lected to take his bath that morning, as had been his custom
from their marriage; on that day he received from fifty to
sixty persons ; he came to lunch at noon ; he had a very light
lunch, a few chops and a glass of wine ; in the course of that
afternoon he received fifteen or sixteen Italians with Charles
Dondero at their head; these were persons whom he intended
to send down to the colony; a little after 5 o'clock witness
went into his office ; Mr. Blythe was fondling a beautiful little
dog; he had been sending all his pets to Mexico, and she sug-
gested that he keep this one; his answer was, "AVell, Alice,
my dear, I will promise you I will not let the little dog go";
when he came home he went to take his bath; she told him
dinner was nearly ready, and asked him if she should delay
dinner; he pinched her chin and said, "No, my dear, I will
be through"; so she dressed for dinner and began to read
until Mr. Blythe was ready; suddenly she looked up; Mr.
Blythe was staggering toward the door ; she got him into her
arms; dragged him as well as she could to the lounge; she
called the China boy, and told him to get her hot water and
mustard; she made a little hot drink and tried to get him to
take it, but he seemed to get into a sort of spasm, and she
could not get the liquid through his teeth; she asked him if
she should call a doctor, but he said, "No, just cover me up
and get me warm"; soon after that he expired; she had al-
ready sent for Dr. Stallard, Mrs. Gutierrez and Mr. Varney;
the doctor came; by that time Mr. Blythe was lying on the
floor, and she was bathing his feet with hot water; the doctor
stooped over him a moment and then said, "I can do nothing
for Mr. Blythe, he is dead"; she was distracted with grief,
Estate of Blythe. 189
it is hard to say exactly what she did; she remembers that
some one suggested that Mr. Blythe 's body be removed from
the house ; she protested against that, and had him placed in
the parlor; that evening, after they had locked out inquisitive
reporters, rival undertakers and other prying persons and had
a little quiet restored, M. M. Estee, ]\Ir. Jeffers and she sat
down and conversed; Mr. Jeffers asked her if she had made
any search for a will, and she said she was too much overcome
with grief to think of such a thing ; Mr. Jeffers said that inas-
much as there would be much excitement and inquiry, they
ought to make a search, and they did so, very thoroughly, all
through the house; found no paper of any great importance;
during this time Mr. Estee was in the dining-room; JNIr. Roacli
and Mr. John A. Wright, his attorney, took all those papers
away; this was four or five days after; they came with an
order of court to inspect papers ; they took charge and sealed
them up until they took them away; witness was at the
funeral of Mr. Blythe as his widow; she stood near the head
of the funeral casket ; she went out to the cemetery ; the body
was placed in the vault ; it did not remain there, but was re-
turned that night to Mr. Porter's undertaking rooms, and he
took care of it until an attempt was made clandestinely to
remove it, which was prevented and the body was returned
to the rooms, and after a while was removed to a vault in the
Masonic Cemetery, and afterward buried.
The defendant in her cross-examination testified as follows
according to the judge's manuscript notes, pages 555-601, vol-
ume 6:
The first time Mr. Blythe spoke to me about the little girl,
Florence, was while I was living at 28 Dupont street; it was
while I was renovating his trunk at 6 O'Farrell street and
came across some photographs and letters ; when he first spoke
to me about his Mexican plans was in 1878 or 1879, when he
"Was engaged in building the steamer for Mexico and was pre-
paring the speech ; it was in May, 1878, that I first visited his
office to hire the cottage; I had asked Mr. Jo. Harris to look
about for a house in a central portion of the city for myself
and my mother and he brought me this number with several
others and I thought that would be the most suitable, and I
went to Mr. Blythe 's office and w^as surprised to meet the man
190 Coffey's Probate Decisions, Vol. 4.
whom I met years before and with whom I had a "mute
liirtation"; the speech he was preparing for a banquet to be
given on the steamer "Coquille," but he did not make the
speech because there was no opportunity to deliver it, and he
presented it to the commodore on board the steamer; I did not
go to the affair on the steamer; Mr. Blji;he came home about
1 'clock in the morning with a few companions ; he was very
jolly and said he had been at another banquet after the affair
on the steamer; I had had some lunch prepared and they par-
took of it ; it was usually over a glass of wine, after the busi-
ness of the day was over, that he would tell me of his
amorous adventures in England and elsewhere ; he told me of
his lady love in London when he was visiting there; he had
many, among them the young lady who was the mother of
Florence, and another young lady of whom he seemed to be
very fond whom he called "Lou"; her other name I do not
know; he said he used to have great sport in striving to have
the young ladies come separately, but sometimes his plans
failed and the ladies met ; this was at his chambers in London,
where he kept bachelor quarters, and an old lady kept his
sideboard and furnished roasts and the like, and occasionally
he went out to take a chop and a cup of tea; I have a faint
recollection that I reproved him for his treatment of the
mother of Florence, and he told me that he had left her well
provided for; don't remember that he said that he had given
her the name of Florence, nor that he said his mother's name
was Florence; my impression is that others gave her the
name; don't remember that he said that he had left instruc-
tions as to the name of the child in case it was a boy and
also in case it was a girl; had conversation with him on the
subject of her name. (Plaintiff's Exhibit 52, letter from Mr.
Blythe to James Crisp Perry, June 15, 1881, the "baptismal
letter," shown witness.) I don't remember ever having read
that letter before; that is not the letter I composed. (Plain-
tiff's Exhibit 54, October 21, 1881, shown to witness, letter
from Mr. Blj^the to Florence.) I never saw that letter in ink
before ; it is not an exact copy of the one I composed ; it has
some of the ideas, something about cats and dogs and house-
hold pets; don't think I could pick out any particular phrases
or words of expression ; we were for about a week or so com-
Estate op Blythe. 101
posing the letter; lie said it was a new pose for him as a
father and hardly knew how to write to a child and asked
me to assist, so I wrote from time to time and he made selec-
tions and finally told me he had written a letter to suit him-
self in his office; I made no objection to Mr. Blythe 's
acknowledging this child; I concurred in it thoroughly; he
was very anxious that I should concur in it; he was pleased to
learn that I was satisfied with his wishes and offered no
opposition ; I told him I had a right to be consulted as his
wife in such a matter; he was glad to have me concur, be-
cause he knew that if I should be jealous of the little girl or
object to his corresponding with the mother I could make it
disagreeable for him; he didn't say anything about "adop-
tion" at that time, but before going down to his ranch the
last time he spoke to me one morning at breakfast, and asked
me how I came to be baptized a Catholic and I told him it
was done through the lady and gentleman who had adopted
me when I was a little child; he said, "Nonsense, they did not
adopt you; you were simply left there by your mother"; I
said that they had adopted me because I always called them
"father" and "mother"; he said that that did not make an
adoption, that there must be a legal form ; they should consult
lawyers and have it done according to law ; and then he arose
from the table, put his hands in his pockets and passed up
and down the floor and said, "Don't you know, that is what
I must do for the little one"? this was in the early part of
1883, January or February ; know that was the time because
then we used to have fires all the time in the parlor. (Letter
produced and shown to witness. Plaintiff 's Exhibit 57. Wit-
ness reads the letter.) I never saw that letter before, I never
saw any of the letters he wrote at the ofSce; that letter is
dated January 4, 1882; I do not recognize any phrase or ex-
pression in that letter as having been suggested or dictated
by me. Cannot remember how long before the date of that
letter, January 4, 1882, but it was as early as 1878 that he
first spoke of the Mexican lands. (Letter shown to witness,
May 17, 1882, from deceased, Mr. Blythe, to Florence, Plain-
tiff's Exhibit 61.) Don't remember seeing that before; it is
written in indelible pencil; I bought two or three such pencils
from Denny, on Montgomery street, for him. (Letter shown
192 Coffey's Probate Decisions, Vol. 4.
to witness, Plaintiff's Exhibit 62-62a, from deceased, Mr.
Blythe, to Florence.) The letter I don't remember, but the
envelope address is in ink and looks like my handwriting ; the
letter is written with an indelible pencil, dated May 22, 1882 ;
when he was ill in bed he frequently wrote in bed and then
he wrote with a pencil, it being inconvenient to use pen and
ink ; Mr. Blythe told me that he did not want it to be known
in England that he was a married man; he told me that
Nellie Firmin had stolen papers and pictures and various
little articles ; witness repeats what she testified on her direct
examination as to the picture of Florence and tracing a re-
semblance between him and Mr. Blythe; that was on a Sun-
day afternoon and I think it was in the fall of 1878 ; and that
was the first time he told me that he had received letters
from England that he was the father of the little girl;
he read to me several letters at that time from various
persons, some from Mr. Finley, some from Miss Firmin, and
some of them from England, but I cannot remember the sub-
stance of them ; that picture is not among those shown to me.
(Plaintiff's Exhibit 76, shown to witness.) Saw that, I
think, in 1882. (Exhibit 79.) I think I saw it in 1882.
(Exhibit 80.) I saw it 1881. (Exhibit 77.) I don't remem-
ber where or when I saw it. (Exhibit 81.) I am familiar
with this style of picture, a similar one; I saw pictures like
these (Plaintiff's Exhibit 77 and 81), and Mr. Blythe said
she looked well fed and cared for ; from time to time I had the
pictures framed and put in brackets and put them where
visitors could easily see them, and he frequently pointed to
the picture and showed it to mostly everyone that came in
and told them it was his little daughter ; he would often talk
about the child and said her mouth was getting larger with
each picture ; that his mother had a small mouth and he him-
self resembled her, and he was much annoyed at the largeness
of the child's mouth and the angularity of her limbs, as he
had a well-turned ankle and rounded limbs ; I said that at the
child's age it was natural that she should be angular, .as she
was not yet developed; none of the photographs that I gave
to Mr. Highton were ever returned to me; when Mr. Blythe
spoke about his plans for the future he said he wanted
Florence to learn Spanish, as it would be of use to her in
Estate op Blythe. 193
Mexico, whither he designed to take her; he didn't think the
climate of California was good for her, as he thought she was
too frail for this severe climate ; long before she v.as so ill he
intended to go to Mexico; his own health was poor; I was
taking lessons in music and art, and he was paying for the
instruction; I told him that if there were any branches in
which Florence was deficient I would supply them if I were
competent ; it was in the latter part of 1882 that he alluded
to the matrimonial prospects of Florence, and it was after
his visit to Mexico in November that Mr. Blythe communi-
cated his change of mind about giving her for a wife to Mr.
Irish; it was not after the last trip to Mexico — I made a mis-
take in so saying in my direct testimony Tuesday (see page
547) ; he said after that visit to his ranch in Mexico that he
was very much disappointed in Irish, that he had greatly de-
ceived him, that he had discovered discrepancies in his char-
acter, and that he should not have Florence ; I could fix the
date if I had a letter Mr. Blythe wrote me from Mexico; I
think I gave the letter to Mr. Highton, but I really don't
know where it is now; he sent me a few notes or scraps; I
don't know what has become of them; he was away the first
time from about the first of November and returned just
before Christmas, 1882; the second time he went March 1st
and returned in about two weeks; I wrote about every other
day, and directed my letters to care of Mr. Ginocchio of
Yuma, banker ; he wrote to me but once on that trip ; I have
retained none of his notes; on the second trip he did not write
at all; on the first trip it was that he wrote the one letter,
and that was all that he ever wrote; on his sixtieth birthday
he was dancing around and laughing, and saying that he
would not have to pay poll-tax any more; I know of his going
to Mr. Jeffers to have a birthday dinner; I was not invited;
I did not know Mrs. Jeffers at that time ; I did not say to Mr.
Blythe that he ought not to go to a dinner party where ladies
were present to which his wife was not invited; witness re-
peated what took place after his return from the Jeffers
dinner ; he spoke of the mutual pledges that were given there,
and he insisted that I should join him in a glass of wine and
pledge myself to care for the little one and protect her rights
in the event of his death; he said if he should die before I
Prob. Dec, Vol. IV — 13
194 Coffey's Probate Decisions, Vol. 4.
did he wanted to be buried down there in Mexico, and that
if he died and was buried there he felt that he would be at
rest where we would plant flowers on his grave; he quoted
some lines of poetry, whether it was original or not I do not
know, that he wanted on his gravestone :
"T*he orphan girl he tried to save,
Has planted flowers on his grave;"
I promised him solemnly to carry out his wishes ; he did not
want to be buried in San Francisco; he seemed determined
to not die here; I solemnly promised that night and at that
time that I would carry out his wishes in respect to Florence
and protect her rights so far as within my power ; I couldn 't
find the letter, but I must have destroyed the one received
from Mr. Blythe; I destroyed some papers about two years
ago; cannot recollect now, because at that time I was out of
my head; that was about two years ago this coming May; I
had five receipts for the rent of the cottage at 433 Hayes
street; gave all I had (three) to my counsel; don't know
what became of the others; once threw a lot of papers in a
Japanese desk out of the window, when I was out of my head
at 27 Geary street.
Witness was questioned as to her dealings with various
persons, marketmen and others, and as to visitors at 433"
Hayes street; some ladies called, but witness declined to give
names unless required by the court, and objection being inter-
posed the court sustained the same and exception was entered.
A Mr. Henderson, with whom I had had some trouble once,
called; sometimes I had some conversation with Mrs. Joice's
brother from my back door, our premises adjoining; I once told
Mrs. Joice that Mr. Blj^the was paying my expenses, and that
if she would come to my figures, and if she wanted to sell, Mr.
Blythe would give me the money to buy it; don't remember
that I told her that I was married to him, or that he was my
husband ; she marveled greatly that I went to so much expense
in having such fine chickens and improving the place; she
wanted to know what I was to do with the chickens; told her
that Mr. Blythe and I were going to take them to our ranch
in Mexico; I don't know how old Mrs. Joice's daughter was-
Estate of Blythe. 195
when she made out the receipts; have not conducted a vol-
uminous correspondence with her; may have written to her
from Napa; have not seen her in a long time; I was never
very careful with papers; disliked to accumulate them; it is
not a fact that those receipts were written since I left the
cottage, 433 Hayes street ; I had no social visitors there.
A Mr. Myers called, but not on a social visit; he was a
friend of Mr. Henderson, and brought a note from him when
I had some trouble with him; Henderson pretended to think
that Mr. Blythe was taking advantage of me, and that as he
knew my father in Arizona, he was taking an interest to see
that I behaved myself; he annoyed me greatly and made him-
self obnoxious by writing notes, and I ordered him away ;
he went to the school to which I was going and traduced me,
and I went to the Stock Exchange and called him out and
reproved him by horsewhipping him; I was stopping then at
the Sisters on Rincon Hill; I did not tell the Sisters about
this; this occurred in 1879; Henderson claimed to have
bought my furniture and some jewelry; this was not true;
he claimed that he had done certain things for me, but when
a lawyer, Mr. O'Brien, showed him various receipts and
papers he signed a retraction; do not know where it is now;
showed it to Mr. Blythe and gave it to him; Mr. Thos. V.
O'Brien was my lawyer; when I left the cottage at 433 Hayes
street I stored part of the furniture with H. Windel; may
have given the name of Mrs. Villette, or Miss Dickason ; I did
go to his store a few years ago and tore out some of the pages
of his book in which my name was entered as "Miss Dicka-
son," because I was angry that he continued to enter my
name as "Miss Dickason" after I had told him it was "Mrs.
Blythe." Mr. Windel visited 433 Hayes street twice about
the furniture; Mr. Blythe called there once, but I was out;
Mrs. Joice told me that he called, and so did he himself.
Witness described the interior appointments of the cottage.
I stored some of the furniture at Windel's, sold some, and
with some furnished a couple of rooms at 11 Geary street for
Thompson, the colored man ; he acted as a sort of janitor for
Mr. Blythe after I left the Hayes-street cottage, where he
acted as a servant for me ; the articles that were sold at some
auction-room, Thompson attended to it; I knew Mr. Hender-
196 Coffey's Probate Decisions, Vol. 4.
son in Los Angeles, also in Arizona; I never had any rela-
tions with him; in Los Angeles he called on my mother to teli
her that he had some money intrusted to him for me, to send
me to Arizona to my father; this was in 1S69; I then went to
Arizona; I have been married twice, first to Mr. Peters and
then to Mr. sTythe; I was married to Mr. Peters in October,
1875; the first time that I saw Mr. Blythe was in the latter
part of 1873 and the first part of 1874; didn't know his name
then ; witness repeated the recital of the incidents of the mute
flirtation; I was then taking lessons of Mr. Peters, whom I
subsequently married; from the time of going to Salinas until
I was divorced from Mr. Peters think I saw Mr. Blythe a
few times in 1875 on the street, but don't remember whether
we bowed to or recognized each other; went to Mr. Blythe 's
office in May, 1878, to see about hiring the cottage at 28
Dupont street; didn't go to sell a picture, nor did I ever sell
him a picture ; am now trying to live at 724% Market street ;
there was no person present at my first interview with Mr.
Blythe; could not recall all the conversation that took place
at the lunch at 6 O'Farrell street that day; it was principally
about the cottage and what I intended to do; went there
again that evening after my dinner; was there until about
9 o'clock; went home alone that evening; saw him every day
thereafter. I have brought the paper with me by which I am
able to fix the date of meeting Mr. Blythe at his office, i. e..
May 8, 1878; that is my writing; I think I copied that in
1883, from an old journal that I possessed before Mr. Blythe 's
decease; it was an old book that I copied from such extracts
as I desired to preserve, and then destroyed it. This was
after Mr. Blythe 's death. The reason that I destroyed it was
that I was rather annoyed because some persons, whom I con-
sidered my friends, to whom I had intrusted my box, had
broken it open and rummaged its contents, and it made me
angry. I intrusted it to Mr. George Eggleton, and it seems
he gave it to Mr. Jeffers, and when I found it it was in Mr.
Varney's room. I did not destroy it under advice; did it of
my own motion: "note copied from old journal; became ac-
quainted with Blythe May 8, 1878." (A. E. B.'s Exhibit
N4.) The figures on that paper indicating "Blythe" are a
schoolgirl's cipher that I sometimes used. (Witness, at re-
Estate op Blythe, 197
quest of Counsel Foote, gave an example of writing, and also
of the schoolgirl's alphabet, Plaintifie's Exhibit 230.) The
entry in the old journal was all in that alphabet. (Witness
repeats what she said to Mr. Blythe on her first visit to his
office.) I do not remember when I first told him my name.
I think I made that entry about my first visit to Mr. Blythe
about that time, May 8, 1878; did not make it after Mr.
Blythe 's death; the name of the lady that formerly occupied
the Dupont street cottage was Mrs. Ilynes ; I had known her
for some time and had called upon her there and was familiar
with the interior ; when I visited Mr. Blythe we discussed the
arrangement of the cottage and alterations that I desired to
be made, but they were not made; he said that if anything
was done according to my design the roof would fall in ; one
day was so like another that I cannot remember each day;
no one has instructed me how to testify nor have I made any
written statement; I told Mr. Highton when I gave him my
case, that is all; he told me to tell the truth when I came to
testify; there was no conversation at first about his occupy-
ing the cottage with me nor that I should occupy his rooms;
I cannot separate the days, the third day he might have asked
me something about mj^self and my people, but I cannot
remember what he said; during the week he said that from
the first he felt that I was his affinity, that I was congenial
to him; it was one afternoon, it was evening, not yet dark,
after dinner; we sat in the bay window; he sat in an easy
chair and I sat on an ottoman ; he asked me to give an ac-
count of my life and I did so ; we sat there two or three hours,
long after dark, without the lights ; after I told him he patted
me on the head and said he thought I was too weak to battle
with the world and that he would like to be my protector.
He said that he was very fond of me and thought that my
nature was suited to his, that he wished to be my husband or
protector and that we should share our lives together; I told
him that I thought he should weigh well what he said and
think over the matter, that on account of his position and
wealth I did not think he meant what he said; ■watne.ss de-
scribed the incident of Mr. Blythe 's attempt to kiss her and
her unsuccessful resistance and annoyance thereat ; in the
course of the encounter he tore the waist of my dress, I had
198
Coffey's Probate Decisions, Vol. 4.
a thin dress on, a low bodice under a light waist; the upper
part of the waist was quite thin, and in attempting to catch
me as I was trying to escape, the waist was torn by him and
I was angry and cried and he undertook to apologize, but I
put on my wraps and left and went over to my cottage at 28
Dupont street rhe wanted to detain me, but I declined and
left and he followed me immediately and came over to the
cottage and made up, and I subsequently returned that even-
ing to 6 O'Farrell street; most of the furniture used in fitting
up the cottage at 28 Dupont street I bought of Goldberg &
Stamper on IMarket street, in the name of "Mrs. Yillette"—
after the mistake was made in the first rent receipt, Mr.
Blythe thought I might as well continue to use that name, and
so it happened that the bill was made out ; some of the articles
I purchased from Emanuel on Fourth street, near Bryant,
furniture factory; the whole of the furnishings of the house
cost about $700, which I agreed for in installments, but sub-
sequently got a considerable sum and I paid some solid cash
down ; had an installment contract with Goldberg & Stamper ;
the name in the contract was Mrs. Villette; have not pre-
served my copy of it; my impression is that I paid as much
as $300 down ; I did not furnish that cottage for the purpose
of having clandestine meetings with Mr. Blythe before the
ceremony of marriage with him; I remember distinctly only
the one occasion in which we occupied the same relative posi-
tions described already as in the bay window — he in the easy
chair and I on the ottoman — prior to the ceremony of mar-
riage: when he proposed to be my protector or husband I
told him to think over it, that if I accepted him it must be
a matter for life; I told him that if I became his wife I
wanted it to be a matter of life with us both; I did not keep
a memorandum of everything Mr. Blythe said, but I think
I made a memorandum of some things; think I did of the
Xmas incident after the dinner that he had with Mr. J"effers,
but destroyed them ; I think in August, 1888 ; I was angry
once when I destroyed some of the papers, and at another
time I was not in my right mind; those receipts (A. E. B's
Exhibit S3 and T3), April 17 and May 17, 1879, for rent of
the cottage, were made as they are while I was there, and not
afterward; it is not a fact that the original receipts were
Estate op Blythe. 109
made out in the name of "Mrs. Henderson"; have not told
Mrs. Joice or Miss Joiee to get out of the way or they would
be subpoenaed and compelled to produce the letters that I
wrote to them about having a will concocted in my favor, nor
did I go to see the old lady or her daughter since last Thurs-
day nor send a messenger.
Mr. Windel told me that he went to Oakland and while
there called at the house of the Joices, but INIrs. Joice was not
at home, they were not in; Mr. Windel told me that old Mr.
Joice told him that Mr. Hart or some of his representatives
had offered them $3,000 for letters or if they would testify,
and $10,000 after they had testified ; thought it was this Mr.
Hart (indicating attorney W. H. H. Hart) that was meant;
I know another Mr. Hart, a friend of the Joices ; Mr. Win-
del went to Alameda to see a child which lie has under his
care in a school or convent in Alameda, and while there he
called upon the Joices, so he informed me; I don't remember
seeing Thompson, the colored man, before I was at Dupont
street ; he obtained employment from me to clean up the stair-
way and doing other work around the house; and when I
went to Mason street he used to run errands for me ; in 1880
or 1881 he did work around the block for Mr. Blythe; I
bought the diamond earrings with money obtained from Mr.
Blythe, and Mr. Harris purchased the rings for me; this was
sometime in May or June, 1878, shortly after the marriage
ceremony; I was then living at 28 Dupont street; the money
was given to me at 6 O'Farrell street, sometime in the even-
ing. At the time of the incident related, when Mr. Blythe
attempted to kiss me and tore my waist, he followed after
me to 28 Dupont street a few minutes later; he came in him-
self ; he had a duplicate key all the time ; he used to come in
frequently afternoons to take a nap; he would take a nap
on the lounge in the music-room; very often when I went
over to 28 Dupont street from 6 O'Farrell street he would
come with me and go upstairs to look around the house to see
that nobody was there, for I was afraid there might be bur-
glars there, as the house was lonesome ; we had no gas in that
house, and had to use either candles or kerosene; when he
came over on the Sunday evening that he tore my dress, at
6 'Farrell street, following me to 28 Dupont street, he apolo-
200 Coffey's Probate Decisions, Vol. 4.
gized; I was crying; he asked me to forgive liim and I said
that I would ; then he said he loved me and wanted me to be
his wife, and he was thinking of a ceremony that would be
as binding as if performed in a church, and that if I would
repeat the formula he would dictate it to me, and he did so ;
witness repeated^the words of the ceremony as given by her
in her direct examination; this took place in my bedroom; I
did not make any memorandum at that time of what occurred
on that occasion; I remember at the time of the second an-
niversary of our mutual contract I made a little design in
water colors and I wrote on it "May 19, 1878"; haven't the
picture now ; while I was making the design or sketch alluded
to, it occurred to me that it was the anniversary of our mu-
tual contract of marriage, and I put it on the design with
a brush "May 19," the date of the anniversary; after the
formula of marriage was pronounced we each repeated sol-
emnly "Amen"; he went over to No. 6 O'Farrell street, and
I changed my dress and went over there too and remained;
we had a late supper at about 10 o'clock, and afterward there
was a mutual assumption of marital rights, duties and re-
sponsibilities; between dark and that hour, he expressed him-
self as very happy, he repeated scraps of poetry, some of it
very silly ; I can repeat some ; witness repeats some lines ;
after May 19, 1878, when we began to have so many visitors,
when so many Spanish and Mexican people called about the
"Coquille," I told him he ought to introduce me by my true
name and as his wife, otherwise I would not entertain them;
he said he would; he did not do so on all occasions; when
Mr. Hodge called to see Mr. Blythe the latter told him he
was going down to the colony to settle on the Colorado river
with his wife, and I spoke of Mr. Blythe as my husband; I
am positive Mr. Blythe spoke of me as his wife in the pres-
ence of Mr. Hodge; I introduced Mr. Hodge to Mr. Blythe
as my husband, or may have said simply "Mr. Blythe" ; don't
remember exactly the reason why he said he wanted the mar-
riage kept secret; at first was the Firmin trouble and partly
also because of his plans in Mexico, but after we were awhile
at 6 O'Farrell street he said it was no longer necessary to
be so secret about it, that there was no cause for further fear ;
llr. Blythe did not have a duplicate key to 433 Hayes street,
Estate of Blythe. 201
nor did anyone else save the cook; when IMr. Blythe spoke to
Mr. Cox he said he was going to take his wife to the ranch
on the Colorado river, and he tried to persuade Mr. Cox to
go to that place and take his family with him; that Mr. Cox
is now dead; hiS' full name was Charles Cox. (IMcCann Ex-
hibit 4 shown to witness.) I sent that picture to the Mc-
Canns after his death; as to the others (A. E. B's Exhibit
R3, McCann's Exhibit 1 and 2), I think I sent A. E. B.'s
Exhibit R3 after his death, sent it at the time of the inscrip-
tion, August 28, 1883, cannot positively say when I sent the
others; I considered the McCanns my "dear friends" as I
wrote in that inscription; I sent some pictures at about the
same time to Mr. Smith and Mr. Bateman; I saw the i\Ic-
Canns here about the 4th of April, 1883, and August ; every
time they came to town they came to the house to see me;
never had any talk with him or them or any of them about
their testimony in this case ; Mr. Blj^the addressed me in pres-
ence of Mrs. Gutierrez as his wife, this was, I think, in 1880,
when he told her of his intention to take me to the colony;
I introduced her to him as "my husband, Mr. Blythe"; there
were only us three present ; this was about a week before Mr.
Gutierrez entered the employ of Mr. Blythe, which was about
the middle of May, 1881 ; I had gone up to see Mr. Gutierrez,
who was very ill and poor, and she spoke to me about pro-
curing employment for him and I went wdth her to No. 6
O'Farrell street to see Mr. Blythe about hiring her husband;
this was about 9 or 10 o'clock in the evening; I cannot now
recall the names of all the persons to whom Mr. Blj-the in-
troduced me as his wife; I remember Mrs. Gutierrez, Mr.
Kohn, Mr. Choynski, the Doyles ; to Mr. Pomroy he introduced
me as his niece. Mr. Andrade thought I was his niece, so did
Mr. Irish; don't remember that I was ever introduced to Mr.
W. H. H. Hart ; once when Mr, Jeffers called they had a seri-
ous talk in the bedroom; I was moving around the parlor
and heard scraps of conversation and heard something about
"marry her" or something to that effect, and then Mr. Blythe
called me to him and put his arms around my neck and said,
"That's all right, I love her very dearly," and then told how
w^ell I had taken care of him; he was ill at that time and in
bed ; he had been ailing a long time with rheumatism.
202 Coffey's Probate Decisions, Vol. 4.
Mr. Jeffers came at about 9 o'clock and remained until
nearly midnight; this was in April or IMay, 1882; this was
before the birthday dinner at Jeffers' house, two or three
months before. Witness mentions names of persons to whom
she was introduced by Mr. Blythe as his wife : among others
a Mr. Huntington, Mr. Jessup (deceased, the late Gershom
P.), Mr. Martin, who was a witness here, Mr. Elias, and
others; when Mr. Beach (now deceased) came around he in-
quired after his "little Arizona girl," not knowing that I
was married. (Witness testifies substantially as in her direct
examination with regard to Mr. Beach and Mr. Mulvihill, the
coal purveyor for Trevor's coal-yard.) I think I have named
all the persons that I can remember to whom I was introduced
by Mr. Blythe as his wife or as his niece; do not remember
receiving any visitors at 28 Dupont street between May and
November, 1878, except Mr. Blythe and occasionally Miss
Mary Phillips, a young friend of mine; she met Mr. Blythe
once in July, 1878, about the time of my father's death.
(Witness names several persons who were roomers in the
house 6 O'Farrell street, in 1880. Papers shown to witness,
Wright Exhibits 40 and 41a.) Those are in my handwriting.
(Envelope marked Wright Exhibit 41, postmarked "S. F.,
Nov. 15, 10 A. M., and on reverse side, "Yuma, Nov. 17., 8
P. M., Ariz.") That is in my handwriting, addressed "T. H.
Blythe, care G. Ginocchio, Yuma, A. T." (Letter offered
and read in evidence marked Wright Exhibit 41a. Letter and
envelope shown to witness — Wright Exhibits 43 and 43a —
the envelope postmarked "S. F., Nov. 11," and on reverse
side, "Yuma, Nov. 13," Wright Exhibit 43, and letter, Wright
Exhibit 43a, dated Nov. 10, no year.) Those are in my hand-
writing and written by me to Mr. Blythe while he was on
his first trip to the Colorado river. (Letter shown to wit-
ness, Wright Exhibit 44, Nov. 7, 1882.) I wrote that let-
ter and sent it to Mr. Blythe. (Letter shown to witness,
Wright Exhibit 45, Nov. 8, 1882.) I wrote that and sent
it to Mr. Blythe; also Wright's Exhibits 67, 68, 69, 70, 71.
(Counsel shows to witness Wright's Exhibits 71, 72, 73, and
they are identified as letters written by her to Mr. Blythe
while he was away in November, 1882; letters read in evi-
dence.) I remember Mr. Yberri; I was introduced to him,
Estate of Blythe. 203
"but do not romfmher by what name. (Letter shown to wit-
ness, Wright Exhibit 79, letter from W. Yberri from Guay-
mas.) That, I think, is the handwriting of Mr. Yberri.
(Letter shown to witness, Plaintiff's Exhibit 228a and En-
velope 228.) I wrote that letter to Mr. George S. Irish,
except the postscript, which is in IMr. Blythe's writing, and
the envelope in his hand; the letter is dated October 8, 1882;
Mr. Blythe was sitting beside me when I wrote that and
dictated it to me; he was not in bed, but his arm was sore,
and he added the postscript next day in his office; it was on
a Sunday evening when I wrote the letter; Mr. Irish was in-
troduced to me by Mr. Blythe as his niece, I think; I remem-
ber going out to see the electric lights in front of the Russ
House, but did not tell Mr. Varney at that time, in May, 1882,
that Mr. Blythe intended to adopt me as his niece and that he
told me to tell him, Mr. Varney, so that he could tell the other
employees; I am pretty positive I did not make any such
statement; it is not a fact that Mr. Blythe ever said so; the
first I ever heard of such a thing was when he introduced me
as his niece to Mr. Pomroy, at 27 Geary street, and after-
ward when I spoke to him about it he said it was because of
his business negotiations in Mexico which made it necessary
that it should not be known that he was a married man.
(Envelope and letter shown to witness, Wright's Exhibits 54,
54a, 54b.) I haven't seen that before. (Also Wright's Ex-
hibits 53 and 55.) I do not remember having seen any of
those before ; the writer was a lady of whom Mr. Blythe
thought a great deal when she was a little girl, a Miss Newell.
(Letters offered in evidence to show that Mr. Blythe addressed
others as "niece"; objection sustained; exception. Certain
certificates of stock in the Mammoth Gravel Mining Company
exhibited to witness, marked Naphtaly Exhibit No. 1 — so
marked because coming from the custody of the public ad-
ministrator's attorney.) That name, "Alice Dickason," used
to be my name. (Certificate offered in evidence; objection,
overruled; exception; certificate issued July 14, 1881, in name
of Alice Dickason, and so indorsed in handwriting of witness.)
(Receipts for payment of rent in July and August, 1878,
shown witness.) I cannot remember why I only made partial
payments at that time; I cannot recollect what my expenses
204 Coffey's Probate Decisions, Vol. 4,
were at 28 Dupont street, cannot figure it now; I can't recol-
lect why I destroyed those tradesmen's bills that I did destroy.
Have no bills for dress goods purchased in 1880, 1881, 1882
or 1883 ; generally bought for cash ; if I had any I have lost
them. (Court Exhibit T shown to witness, memorandum-
book produced bylautierrez.) That entry on page 33, "Novr.
30th, took care of office part of afternoon, Dickason," was
made by me; when Gutierrez first knew me he always ad-
dressed me as Mrs. Blythe; he so addressed me every day
when he was iU on Howard street, and I used to carry him
food every day; this was in the latter part of 1879 or the
beginning of 1880; I think I have seen Captain James Mc-
Donald, but never spoke to him or met him at 27 Geary street*
a day or two after Mr. Blythe 's death, nor did I present to
him a card; I positively did not have any conversation with
him nor do I know the gentleman at all ; now I recollect that
I never met him ; the person to whom I was introduced about
three years ago was another gentleman, a large, portly, florid-
faced man, without beard, a Captain McDonald; he was in-
troduced to me by Mrs. Dr. J. Grey Jewell ; if any such con-
versation occurred I should have remembered it, because Mr.
George S. Irish used to bring me flowers which he said came
from Captain James M. McDonald's garden; but I never saw
him nor did I give him name or card; knew a Mr. Edw. Payne
who kept a bric-a-brac store on Geary street in the Sawyer
part of the block ; I painted quantities of shells for him ; dec-
orated a number of shells; he paid $5 or $6 a pair for them;
cannot remember just how many ; never borrowed any money
from him; did not say to him that I was going to the art
school and that my uncle paid my expenses ; do not remember
saying that; did some work also for a store on Market street;
a picture store opposite the Palace Hotel; the night of the
19th of May, 1878, after the ceremony, I spent the night at
6 O'Farrell street; that was the first time I ever spent an
entire night there ; there was a colored girl there, but she was
absent that night. She was so often absent at nights, that
finally Mr. Blythe told her she might as well remain absent
altogether at nights; she had a room in the house on the
fourth fioor; she remained there until 1880, when she left;
her name was Mary Williams; she was married, as I learned
Estate of Blythe. 205
after her leaving, to a man named Stepney; she had been
married unknown to us prior to her leaving; none of Mr.
Blythe 's old servants liked me; Mary did not; before I went
there she had her own way, and after that she did not have
her own way so much; she was dismissed by Mr. Blythe; one
evening she was late at dinner, and she had been latterly care-
less and tardy, and Mr. Blythe became greatly enraged and
threw some glasses about, and one struck her, and she got
angry and left. When I first went to 6 O'Farrell street, in
1878, Mr. Blythe had a library, parlor, kitchen and other
rooms, and but one bedroom, which I occupied with him from
that time on, and the arrangement was about the same ; at the
art school I was always known as Miss Dickason; I don't
know anyone by the name of Mrs. H. H. Allen, and did not
say to anyone of that name who was attending the art school
in 1881 that my name was Miss Alice Dickason and that my
uncle, Thomas H. Blythe, was paying my expenses, because I
don't positively know any such person; when. I went to Rin-
con Hill I told Mother Mary Francis that I was a single
woman, and think I said my name was Miss Villette; after
I was there awhile I told her that I was a married woman,
and shortly thereafter I left; Mother 'Mary Francis gave me
religious instruction every morning until when she was in-
quiring as to my life I disclosed to her that I was married,
and she told me that the church would not recognize such a
marriage; I told her that I was secretly married, but don't
remember that I told her as to the manner of the marriage,
except that it was not by a priest. (Witness was examined
as to what she was doing on April 4, 1883, the day of the
death of Mr. Blythe. Witness described what occurred at
the time and the scene of Mr. Blythe 's death, as he emerged
from the bathroom dressed in his under-flannels — no change
from direct testimony.) He had a very similar attack once
before at 27 Geary street shortly after his return from the
ranch in November; then I gave him a little Jamaica ginger
in hot water and it relieved him; did not send for the doctor
at that time because he revived; this last time sent for Dr.
Stallard, but when he came it w^as too late. (Witness re-
peated substantially her testimony in regard to what took
place in the house on the night of and after Mr. Blythe 's
206 Coffey's Probate Decisions, Vol. 4.
death, when Mr. Jeffers and Mr. Estee were there.) Mr. Jef-
fers proposed to search for a will; he asked me if I had
thought to look for a will; I told him I had been too dis-
tracted to think of it ; and we then went into the room where
Mr. Blythe's desk was and we made a search. (Witness de-
scribes the way in which the search was prosecuted by them.)
I was not present at any other search, cannot remember that
the desk was unscrewed afterward and searched at Mr. Win-
ders. (Card shown to witness and identified as in her hand-
writing, Plaintiff's Exhibit 284.) I have no recollection of
when that was written, it is very evident I did write that
and send it to Mr. Varney from its contents. On one side is
the name "Alice Dickason" and on the other "My dear Mr.
Varney I have succeeded in making some good eggnog ; come
in and have a glass, it is better than your whisky. Cordially
yours, A. Dickason," I recollect when Mr. Roach, the pub-
lic administrator, and his attorney, John A. Wright, were
present at the time the desk was sealed, there was also a police
officer present ; the first time the administrator and his attor-
ney called I did not admit them, I upbraided and told them
they should be ashamed of themselves and wait until Mr.
Blythe was cold in death. (Papers shown to witness — affida-
vit of Philip A. Roach, filed April 13, 1883 ; and the reply
affidavit of Mrs. Alice Edith Blythe, filed April 14, 1883.)
I don't remember hearing Mr. Roach's affidavit until one day
in court. (Affidavit of Alice Edith Blythe offered in evi-
dence; objection on various grounds specified; overruled; ex-
ception; affidavit read in evidence.) That affidavit was read
to me by ]\Ir. Wilson, clerk of Mr. Highton, before I swore to
it. (Affidavit of the late Philip A. Roach, filed April 13,
1883, offered in evidence; objections on various specific
grounds; overruled; exception; read in evidence.) I have
now heard you read that affidavit ; I don 't think I showed the
public administrator all the papers I had; don't remember
why I did not; I was at the funeral of Mr. Blythe at the
Masonic Temple; a party of us went together in a carriage;
I sat near the casket ; the funeral services were conducted by
Colonel John H. Dickinson; after the Masonic ceremonies
were over he said now the wife of the deceased would look at
the remains ; I went to the cemetery. (Photographic carte de
Estate of Blythe. 207
visite shown to witness and identified and marked Plaintiff's
Exhibit 285.) I have seen that before ; that word on the lower
left-hand corner, "Alice," is in my writing and also the writ-
ing on the back; that is my picture; I sent it to Florence
after the death of Mr. Blythe; I must have sent it to Mr.
Perry for the little girl. (Another picture produced and
shown to witness, Plaintiff's Exhibit 286.) That is my pic-
ture, originally cabinet size; cut down to the form of the
figure; the writing on the back is mine; it was taken before
Mr. Blythe 's death; it was taken in 1882.
Captain James M. McDonald appeared and is presented to
the witness, but she declares she has no recollection of him.
The court against objection and exception allows him to be
sworn and testify in rebuttal :
I have been ill for three weeks and am not yet well ; this is
the lady that I saw at 27 Geary street the day after he died ;
I went there to assure myself by personal observations that
Mr. Blythe had died and saw this lady ; and after viewing the
remains, which I recognized at once, I then asked her how it
occurred, and she told me she had detailed the matter to a
"Chronicle" reporter and the report in that paper was sub-
stantially correct; after a while I proffered my services and
gave her my card and address, and asked her to whom I was
speaking, and she said "Alice Dickason"; I took a card out
of my vest pocket and began to write and did write "Alice
Dicker"; then it occurred to me that I did not know how to
spell the name and asked her and she wrote the surname
"Dickason" just there as it is now; this was at about 2 or 3
o'clock the day after the death of Mr. Blythe. (The card is
marked Plaintiff's Exhibit 287.) I put that card in my
pocket and carried it there with other papers for some time
afterward, until I heard that it was claimed that he was a
married man, and then I put it in an envelope in my box,
and there it has remained ever since until taken out to de-
liver to the court. (Envelope marked Plaintiff's Exhibit
288. Motion to strike out testimony denied. Exception.)
Alice Edith Blythe resumes — cross: There was no bed-
lounge or lounge in my studio ; when I furnished the three
rooms there I occupied one room as a bedroom, had a very
nice bed in it, but only for one month; I have been known as.
208 Coffey's Probate Decisions, Vol. 4.
Alice Dickason, Alice Weston, Miss Villette, Mrs. Peters, and
Mrs Blythe. (Directory of 1880-81 shown to witness, and
she is asked if she furnished the name of "Alice Dickason,
portrait and landscape painter, 7241/2 Market street, residence
305 Jones street"; objection; sustained; exception.) My
mother's first hiisband was my father, Mr. Dickason; she mar-
ried George Weston, presuming my father to be dead; he
died, and my father reappearing they lived together until he
died'; she married James Morgan, and became divorced from
him;' she secured the divorce; she then married Thomas Jones,
and he died and she married Frank Case. I once boarded
at Dr. Rousseau's in San Diego; was there known as Miss
Alice Dickason, and not as "Mrs. Frank Cook"; Mr. Blythe
told me that he left England when he was very young; I
never heard during his lifetime that his real name was "James
Savage"; I was present at times v/hen he paid bills for the
house at 27 Geary street ; I never asked him to marry me in
any other way than that in which we were married on May
19, 1878; I received a dispatch while Mr. Roach and Mr.
Wright were in the room; I think it was from my mother
and announcing that she was coming up ; I have not retained
that dispatch, don 't know what became of it.
Redirect examination by Mr. Highton: I told my attor-
ney when I employed him of the promise I made my hus-
band with regard to Florence, and instructed him to defend
her rights, at that time I considered her Mr. Blythe 's child;
Mr. Blythe once read a letter to me from a Mr. Finley in
London, to whom he had written, as he told me, to find all
he could about Dr. Perry and about Julia, the mother of
the child; I had that letter for some time, but have it not
now, and don't know what has become of it; the letter said
that the writer had made search and found that Dr. Perry
was traveling about under different names, and alluded to
some trouble they had about jewelry, and that Julia Ash-
croft and her husband were doing poorly ; at the time I first
went to Mr. Blythe 's office I was not selling pictures in San
Francisco ; my mother in conversation with Mr. Blythe, in my
presence, told him that I had disclosed to her the fact of the
secret marriage and she hoped that I would be more success-
ful than in my former marriage. (Letter shown to witness.
Estate of Blythe. 209
A. E. B's Exhibit, Blythe to Andrade, San Francisco, De-
cember 23, 1882, offered and read in evidence.) At one time
when Mr. Yberri was stopping as a guest at 6 'Farrell street
I went to his room to notify him that the dinner was ready;
I rapped on his door, there was no answer and I opened the
door and went in, and he was in the rear of the room with
his coat and vest off, in his shirt sleeves, and I retreated and
he came forward and apologized and said he should feel more
embarrassed if it were a young girl, but as I was a married
woman it did not matter so much; I said that it did not, as
I had frequently seen Mr. Blythe in his shirt sleeves, and then
retired, after telling him that dinner was ready; after listen-
ing to Captain McDonald's testimony yesterday I have no
recollection of ever having seen him before; on the day that
he says he spoke to me — the day after Mr. Blythe 's death —
I was very ill and nervous, had been all the night before and
was attended by Dr. Stallard; Mr. Jeffers made me some pres-
ents ; Mr. Blythe knew of it but made no objection to them.
(Witness' attention is called to the letters already in evi-
dence written by her to Mr. Blythe while he was in Mexico.)
When he went away he told me to keep a journal of my
daily occupation and to send him an account of what was
going on from day to day and to address him in my letters
as "uncle," and I obeyed him; Mr. Blythe spoke to me fre-
quently about the young lady. Miss Newell, whom he had
known as a child and who used to call him "Uncle Tom";
he said he used to be very fond of her and had visited her
parents when they lived in Stockton ; I indorsed those certifi-
cates of stock "Alice Dickason" because Mr. Blythe requested
me to do SO; I did not write "Dickason" on that card pro-
duced by Captain James M. McDonald; I was present when
Mr. Henderson called at 6 'Farrell street ; he came to make
some trouble; he asked for me and Mr. Blythe told him that
I was now his wife, and he ordered him to leave and forced
him downstairs; Henderson claimed that he was a friend of
my father and had my interests at heart, and wanted to know
what Mr. Blythe was doing with me in that house, and Mr.
Blythe responded that I was living with him as his wife ; some
words passed and Mr. Blythe drew a pistol on him, and Hen-
derson fled and Mr. Blythe pursued him downstairs, I join-
Prob. Dec, Vol. IV— 14
V
210 Coffey's Probate Decisions, Vol. 4.
ing in the pursuit; no shot was fired and Henderson escaped;
I told my mother that I was secretly married to Mr. Blythe,
but did not tell her the manner of the marriage.
MISTRESS or wife, WHICH?
Counsel for defendant (Hon. E. D. Wheeler) says that this
action, so far as they are concerned, is like an action of eject-
ment. They cannot recover upon the weakness of their ad-
versaries; as to the collateral claimants, they care nothing
about them; as to the plaintiff, if it be shown that she is
the child, and if the statutory requirements have been com-
plied with, the defendant does not object to her receiving
one-half of the estate. What relations, asks this counsel, did
the defendant Alice Edith Blythe sustain to the decedent,
Thomas H. Blythe? The evidence, whether false or true,
shows that he represented her in four different capacities —
niece, housekeeper, mistress, and wife. Three of these repre-
sentations were false. Whicji of these relations did she oc-
cupy? She was not his niece; this is admitted by all. She
was not his housekeeper ; counsel says this is proved in many
ways. Was she his mistress? Her conduct was widely at
variance with any such a charge, and counsel described the
character of a mistress in contrast with that of a wife. Was
she his wife? That is the question. In the first place, there
is her own evidence. Her testimony alone, if consistent with
the circumstances of the case, is sufficient, and the presump-
tions, of the law are in her favor ; she is presumed to speak
the truth, and the law presumes that persons living together
in marital relations are husband and wife; and this counsel
claims that she is corroborated by decedent's declarations on
many occasions, made indiscriminately. These statements, in
connection with the fact of living together, make a case that
is impregnable, built upon the solid masonry of legal logic.
A status once established cannot be destroyed by any number
of statements, nor by the inconsistent declarations of defend-
ant with reference to her name. If the antecedent facts es-
tablished that she was his wife, no number of declarations
could have effaced that status. There were many incongruous
elements in the character of the decedent, Thomas H. Blythe.
He was a singular man, whose counterpart never existed in
Estate of Blythe. 211
history; but whatever his character may have been, the coun-
sel insists that the evidence proves that the defendant was his
wife and is his widow.
Taking the whole body of the testimony in favor of this
defendant, her counsel (Mr. Highton) claims that it forms a
harmonious symmetrical case of matrimonial relations be-
tween decedent and defendant. Looking at the entire array
of evidence (he asserts), the court cannot find the relations
meretricious. The court should place itself in the attitude of
the defendant to see what her case is, and look at it from her
point of view. Defendant's counsel then, in considering the
corroborating witnesses, remarks that there is no evidence of
confederation among them. They are disinterested. It is
true some of them are humble, but that does not lessen their
claim to credit.
IS the evidence consistent and harmonious?
The story of the defendant should not only be consistent
with itself, but be in harmony with the whole of the testi-
mony adduced in her behalf.
Let us consider that testimony in the order of its produc-
tion :
Frederick Alfred Martin testifies that in 1881 he went to
see Mr. Gutierrez at Mr. Blythe 's office, "241/2 Market street;
Gutierrez was not in, but Blythe was in, and asked witness
to have a cigar- he accepted, and smoked until the door was
opened and this lady, the defendant, came in, and witness
arose to leave, when Mr. Blythe said to him, "Don't be in a
hurry, this is Mrs'. Blythe." This witness afterward said
he was in error as to the year, as he found by reference to
the directory for 1882 that it must have been that year, ac-
cording to his employment at the time, and the witness con-
fessed he was very absent-minded as to names and dates.
Isaac Baer, a newspaper carrier, served papers to decedent
at 27 Geary street; saw the defendant there; knew her only
as Mrs. Blythe; the written portion of the paper, "A. E. B.'s
Exhibit D3" is in witness' handwriting, and was delivered
to Mrs. Blythe, and the witness identified other similar re-
ceipts in same manner ; witness had usually made out the bills
to Mr. Blythe, but on one occasion he met him on Market
212 Coffey's Probate Decisions, Vol. 4,
street and, witness asking for the amount of his bill, Blythe
said, "You go upstairs and ask my wife to pay it"; witness
never knew her by any other name; as long as Blythe lived
he made out the, bills to him; never made out the bills to her
until after his -death ; witness is sure about that. Certain
bills were shown to witness at this point, marked "A. E. B.'s
Ex. G, Novr. 1882, A. E. B.'s Ex. F, Feby, 1883, 'Miss
Bligh,' " and the witness said that these bills or receipts must
have been made out after his death; Mr. Blythe often said
to witness to collect the bill from his wile.
Elizabeth IMcCann, wife of William F. McCann, testified
that she knew Thomas H. Blythe; met him at his house in
1882, corner O'Farrell and Dupont streets; her son James
and her husband were present; a little after they went in,
]\Irs. Blythe came in and went over to the bed where Mr.
Blythe was, and after awhile she \vent away; witness' son
introduced her to Mrs. Blythe by that name; witness was in
Mexico with her husband and sons; Blythe came down once
in November, 1882; he said he wanted to build a house for his
wife to come with him; in March, 1883, when Blythe was on
a visit to the ranch in Mexico, he spoke of this lady as his
wife; he said she had some nice chickens on the top of her
house, that she was a nice judge of chickens; he said that
when he returned he would bring Mrs. Blythe there about the
latter part of April, to reside in the house at the ranch which
was built for him ; he said it was a very nice house, that the
walls were very smooth and that Mrs. Blythe would paint
some nice pictures on them.
"William F. McCann, husband of the last-named witness,
corroborated her testimony and added that when Blythe
said he was going to bring his "family" down, the witness
concluded he meant "Mrs. Blythe" and the dog "General
Grant"; Blythe said nothing about a child. It is not im-
possible that this witness' wife made a like inference, as she
was present at the time of the conversation about the chickens.
David H. Wallace, a bartender at 20 Stockton street, for-
merly a waiter at the "Terrapin" restaurant at 15 Stockton
street, testified that the defendant was a customer of his place
and that he served oysters at 27 Geary street, and that he saw
Mr. and Mrs. Blythe there on one occasion; there was some
Estate op Blythe. 213
company there ; witness put the oysters down and Mr. Blythe
asked to be allowed to assist her; and she turned to witness
and said, "This is my husband, Mr. Blythe"; witness made
out a bill, dated ''San Francisco, April 1, 1883, Mrs. Alice
Blythe to P. Scattiny, Dr.," containing charges for oysters,
etc., from October, 1882, to March, 1883, and took it up to
Mr. Blythe 's place, 27 Geary street, for payment and ascer-
tained for the first time that he died on the same day; could
not recollect the date, nor how long it was after the bill was
made out; he copied the items from the "Terrapin" account-
book, from an account headed "Mrs. Alice Blythe"; witness
does not know where that book is now, nor what became of
it; witness left that restaurant in 1884, but did business in
the pie line with Mr. Scattiny afterward, and also at the same
time acted in the oyster saloon with him; during the time a
Mr. Parker ran the "Terrapin" restaurant, Mrs. Blythe left
orders there, and sometimes they were charged to her as ' ' Mrs.
Alice ' ' ; Parker sold out to Scattiny shortly after witness went
to work there; witness knew where Mrs. Blythe 's residence
was, because they sent orders there frequently; it was an
almost daily occurrence ; the reason that so few charges were
in the bill was because often cash payments were made at the
date or time of leaving the orders; when witness made out
the bill he took it, by direction of Mr. Scattiny, to 27 Geary
street, went upstairs, knocked at the door, Mrs. Blythe opened
the door, witness asked for Mr. Blythe, she said, "He is
dead"; witness begged her pardon and withdrew without say-
ing more.
Mrs. Clara P. Ford, a doctress of 211 Taylor street, saw
Mr. Blythe in his house, 6 O'Farrell street; Mrs. Blythe in-
troduced witness to him as her husband; they had conversa-
tion; witness offered congratulations, and a bottle of wioe
was opened on the occasion; this was in 1879, as nearly as
witness can remember; witness called there because the lady
had invited her to call; she came to witness' house on Jones
street and told her she was married to Mr. Blythe and invited
witness to call upon them ; when witness called, she remarked
that she hoped it was not too late to offer congratulations;
Blythe said it was not and ordered a bottle of wine; witness
called there again and afterward at 23 Geary street and had
21-1 Coffey's Probate Decisions, Vol. 4.
lunch and dinner with them; dined there twice, she thinks;
Mr. and Mrs. Blythe were there at the table, they three were
all that were at dinner each time ; the conversation generally
was about cats and dogs, about the beauties of the cats and
what they could do ; the conversation was general about things
pertaining to tSe house, cats, dogs and birds, pets of Mrs.
Blj'the ; witness recited a few lines of her own poetry ; on one
occasion Mrs. Blythe was elaborately dressed for dinner, black
silk, diamond ornaments; witness knew Alice Edith Blythe
when she was a baby in Tuolumne county; she knew her by
the name of IMrs. Peters at the time when she told her she
was married to Mr. Blythe ; she did not tell her by whom the
ceremony was performed or when or where, or whether there
had ever been any ceremony ; when witness called upon them,
the defendant introduced her to Mr. Blythe, saying, "This
is my friend Mary of whom I have spoken to you, Mr.
Blythe''; witness' full name is Mrs. Mary Ann Sarah Clara
Victoria Ford; maiden name was Markley; she then said she
hoped it was not too late to offer congratulations ; this was in
the fall of 1879.
Henry Williams was formerly a sleeping-car porter on the
Southern Pacific Railroad line for fourteen years; saw Mr.
Blythe on the cars at different times. On one occasion when
he came up and got off the cars at Oakland he said, "Porter,
will you take my valise up to my house and give it to my
wife?" Witness took it up to 27 Geary street; previous to
that witness had a package for him from the train at Oak-
land to 6 'Farrell street, he told witness to take the package
there and give it to Mrs. Blythe ; Mr. Blythe was a gentleman
who was very fond of luxuries, and on one occasion witness
left a trout for him from Truckee, and he afterward said,
"Porter, my wife tells me you left a very nice trout for me
at my house"; witness delivered the trout to the lady defend-
ant, Mrs. Blythe, and when Mr. Blythe met the witness he
remembered him for it; witness was running on the Central
Pacific Railroad in 1869 from Oakland wharf to Truckee, he
knew he left trout at 27 Geary street in 1882 two or three
times.
A. A. McLean, a specialist in mechanical treatment of
hernia, saw the deceased Thomas H. Blythe twice— first at
Estate of Blythe. 215
7241/^ Market street, where witness was making inquiry for
offices, as he was about to vacate the rooms he then occupied,
and seeing a sign, "Offices to Let," on 27 Geary street, and
going upstairs to the top floor he saw a large dog there, and
a lady followed him and he asked for the keys of the rooms
there, and she directed him to Mr. Blythe, and he went around
there, and a gentleman there who had spectacles on, a short
and stout man with dark mustache, handed him the keys and
told him his wife would show him the rooms; witness went
back and saw the rooms but did not again see the lady; the
rooms did not suit the witness, and he returned to the office
and left the ke^'^s ; there was, on his return to the office, only
a young man there; offered himself as a witness because he
thought what little testimony he might give might do some
good.
Mme. Blaise Lapariat was living in 1882 at 936 Howard
street, French Bakery; witness identified certain papers pro-
duced (Alice Edith Blythe 's Exhibits J3, K3, L3, dated July
31, 1882, August 31, 1882, September 18, 1882) as in her
handwriting, all the written portions; the books from which
witness made out those bills she destroyed when she sold out
the business; the handwriting on the back, "6 O'Farrell
street," is that of the witness; did not know Thomas H.
Blythe, nor did she remember having seen the lady ; the bills
were made out in the name of Mrs. Blythe because that name
was given to the witness; was at 936 Howard street from
1879 to 1889 ; destroyed the books of original entries when
she sold out the business; looking again at A. E. B.'s Exhibit
J3, the name "Mrs. Blythe" is not in witness' handwriting;
the rest of it is; witness made a mistake when she said that
all the written portions were in her writing; she did not put
in the final figure "2" in 1882, in all or any of those dates,
it is stamped, not written; witness had no stamps; if the
figure "2" were not there she would have written it in;
never saw the figure before now; don't recognize it; cannot
account for its being there; in the name "Mrs. Blythe" the
letter "r" in "Mrs." is the writing of witness, but not the
rest of it; the letter "r" is all that she wrote; the printed
""M" and her "r" after it, and the rest of the line was
y
216 Coffey's Probate Decisions, Vol. 4.
blank; cannot remember that she ever had the name of Mrs.
Blythe on her books or the name of Mr. Blythe.
Philip McCann says that the second visit of Blythe to
Lerdo was in March, 1883; met him at Fort Yuma, Arizona,
and accompanied him to the colony and left him at Las
Carpas; Blythe stayed there all night and witness went on
to his father's ranch; on the way down from Yuma they had
meals on the way; Blythe had a basket, and when they
stopped at Salvador's ranch he said the basket contained
some lunch which his wife had put up for him.
Edward Maldonado, dentist, formerly a druggist on Geary
street, knew Thomas H. Blythe by sight only; cannot recog-
nize the defendant; knew a party who came into his drug
store seven or eight years ago and bought articles and had
them charged to "Mrs. Blythe"; she lived opposite, over
Radovich's liquor store; this was in the year 1883, April 23d,
that is the first and only entry on his books.
Philip Scattiny began business at 15 Stockton street in the
first part of 1880, and continued there until 1887; David H.
Wallace worked there for about four years from the time
he came to work there; knew the lady defendant first as "Mrs.
Alice," and afterward witness learned that her name was
"Mrs. Alice Blythe"; she was a frequent customer of the
witness and gave orders to be delivered to 6 O'Farrell street
and 27 Geary street ; the books of witness are now destroyed ;
sometimes they charged "Mrs. Alice Blythe," "Mrs. Alice
B." and "Mrs. Alice"; the book of final entry from which
the bills were made out contained the charge to "Mrs. Alice
Blji;he"; those bills were made out by Mr. Wallace; witness
understood that her former name was Mrs. Alice Dickason;
saw her once at 6 O'Farrell street; the "Terrapin" was a
restaurant and oyster-house; men and women used to come
there; they did not demand marriage certificates; did not
burn the books because anyone suggested their use in con-
nection with this case; that bill was presented on the day it
was made out; Wallace took it and brought it back, saying
that Mr. Bl^^the was dead; it is dated April 1st, but it was
the 3d of April he took it to collect.
M. S. Wliiting was publishing the "Wine Dealer's Gazette"
in 1879; office at 719 Market street, nearly opposite Mr.
Estate of Blythe. 217
Blythe's office; Blythe was in witness' office in 1879, and a
Japanese cabinet was there to which he took a fancy and said
he would like to purchase it for his wife, and witness told
him he would give it to him and did so ; this was in October,
1879.
William Clayton deposed that he knew Blythe from 1870
down to shortly before his death; witness' first acquaintance
was when he went there to look for work ; in 1879 he was
working painting the block; Blythe spoke to witness about
some work to be done at his house ; he said to go and see the
"Missus" and she Avould tell him what to do; witness did
not know then to whom Blythe referred ; another time Blythe
wanted to buy a dog of witness; witness wanted $125 for it
and would not take a cent less ; Blythe told him to take it
upstairs and show it to the "Missus"; witness did not let him
have it.
Mrs. Eloisa S. Gutierrez deposed that she knew Mr. Blythe ;
heard him speak to Mrs. Blythe; he called her "Alice" al-
ways, and he called witness "Louise"; witness always called
her "Alice"; she told witness she was married to him, and
witness introduced persons to defendant by that name, "j\Irs.
Blythe"; witness addressed her once as "Mrs. Thomas H.
Blythe"; have not that envelope now; heard Blythe say he
was going to build a house in Mexico, and he was going to
take Alice there and live and die in Mexico.
Charles E. Edwards never saw Thomas H. Blythe to his
knowledge; knew the defendant, Alice Edith Blythe; was at
28 Fourth street when the bill (Alice Edith Blythe's Exhibit
M3) was made; that bill is headed "April 14, 1883," and the
first item is March 26, 1883; the witness knew the lady as
"Mrs. Blythe"; she had been a customer, and he delivered
goods to her at 27 Geary street ; his original books are not
now in his possession; was in business on Eleventh street in
Oakland in 1881-82-83, but did not know the exact date of
coming over here; the witness' recollection was that it was
in 1885-86 that he did business at 28 Fourth street, but ac-
cording to that bill it must have been before; that bill is in
the handwriting of witness ' bookkeeper ; haven 't seen him for
four or five years; don't remember his name; saw her there
before Mr. Blythe's death; had an account with her as "Mrs.
218 Coffey's Probate Decisions, Vol. 4.
Blythe." The San Francisco Directory for 1833-84 shows:
''Edwards, Charles E., butcher, 28 Fourth, r. 630 Hayes."
W. B. Webster rented apartments at 6 O'Farrell street
from spring of 1880 to spring of 1882, on the third floor ; the
second floor was occupied by Thomas H. Blythe and Mrs.
Blythe ; witness sometimes paid his rent to Mrs. Blythe ; fre-
quently called in to see them, upon their invitation, and
became very well acquainted with them ; usually saw the lady
in the evening; witness usually arose at half -past 7 o'clock in
the morning, when he went up to breakfast at the "West-
minster," on Sutter street; frequently witness went up to his
room and often saw her at that time ; met her occasionally in
the morning; she usually then wore a morning wrapper; she
was superintending the servants, sometimes feeding the cats;
at noontime she was dressed in a plain and subdued manner;
generally found her overseeing the servants and preparing
lunch; in the evenings she dressed very plainly; sometimes
met persons there in the evenings, but cannot recollect the
names ; sometimes witness would sit on a lounge in the parlor,
and sometimes in the dining-room ; the furniture of the apart-
ments was very fine; on several occasions she spoke of going
to Mexico, about leaving San Francisco and going there to
live; she referred to Mr. Blythe as going with her; she said
she would make her future home in Mexico; there were musi-
cal instruments in their rooms; she played, and played well,
too, harp and piano; witness recollected an incident; once as
he was coming downstairs Mr. Blythe met him, on the 1st of
January, 1881, and grasped him cordially by the hand, and
opening the door of the dining-room, there was standing by
the sideboard Mrs. Blythe, and he asked witness to have a
glass of wine, saying, "It is unnecessary for me to introduce
you, you know Allie"; witness said, "Yes, I know her very
well," and they took a glass of wine; the witness identified a
letter in his handwriting, dated April 6, 1883 — a letter of
condolence, addressed "Mrs. Thos. H. Blythe"; he mailed the
letter addressed to her at 27 Geary street.
Max Koerner knew the lady defendant as Mrs. Blythe ; she
came into his store on Market street, under the Baldwin
Hotel, before Christmas, 1882, and ordered a toilet set; she
ordered it on white satin with the letter "B" on all of the
Estate op Blythe. 219
three pieces, embroidered in rosebuds; rosebud around the
" B " ; she was in there a half dozen times at least ; witness
delivered it himself on Market street, over the "Golden Rule
Bazaar"; witness met Mr. Blythe coming out and asked him
for Mrs. Blythe, and he said, "Mrs. Blythe come out, there's
somebody wants to see you"; she came again to buy small
things once in a while, cash transactions; witness did not
show to Mr. Blythe those articles delivered on Market street,
above the "Golden Rule Bazaar"; witness has not his books
now; they went into the hands of the assignee, Mr. Greens-
felder, and witness did not know what became of them.
J. C. Gilfillan knew the lady defendant as Mrs. Blythe and
by no other name; she was a customer of his; knew her only
as a customer; sent packages of produce to her as ordered
"Mrs. Blythe, 6 O'Farrell street," and "27 Geary street."
Patrick Mulvihill, employed by Henry Trevor, coal dealer,
knew Blythe three or four years before his death ; knew Mrs.
Blythe by that name and by no other ; saw her at 6 'Farrell
street and 27 Geary street when witness went to deliver coal
there; the servant received the coal; once when the witness
went there and pulled the bell Mr. Blythe answered it and said
it was strange that Mrs. Blythe did not have the servant to
open the door; at 27 Geary street they occupied the top floor;
witness saw Mr. Blythe once there; he was coming upstairs
as witness was coming down ; while witness was there at that
time Mrs. Blythe showed him some paintings that she had
been making.
Fergus Hanson knew Mr. Blythe; he used to come to the
place of business of witness, at 11-12 California Market, a
butcher stall; he came two or three times with the lady de-
fendant and made some purchases ; she frequently made pur-
chases; had conversations with her; understood her to be the
niece of Mr. Blythe ; she told witness afterward that she was
Mrs. Blythe ; had a bill in my blotter against her ; it is the bill
marked "A. E. B.'s Exhibit 03"; witness never presented
that bill to Mr. Blythe; there are only two items there —
December 27, 1882, and January 16, 1883 — contracted before
his death.
I. N. Choynski knew Mr. BMhe from 1875, about the time
witness built his house opposite Blythe 's on Geary street;
V
220 Coffey's Probate Decisions, Vol. 4.
knew the lady defendant for about the same time; she used
to come in and buy articles at witness' store at different
times; collected from Blythe; witness charged the articles;
she said, "present those bills to Mr. Blythe"; cannot recall
any remark he made in paying them; the bills were made
out to Mrs. Blythe; there were at least three or four bills in
the year preceding his death; witness saw him and her at
27 Geary street, at their rooms, several times ; did not remem-
ber anything strikingly particular, except that he would say,
"Alice, my dear, bring down some of our best wine and a box
of good cigars," and at another time, while they were looking
at some pictures painted by her, "Alice, you must paint a
little picture for Mr. Choynski, he is my intimate friend,"
but witness never got the picture; there was a picture of
some scene on the Colorado river where he said he was going
to end or spend his days "in the bosom of his family"; she
would play the piano sometimes ; witness is sure that it was in
1877 or in the fall of 1876 witness moved into his store on
Geary street.
Benjamin Orpheus Hodge knew the defendant, Alice Edith
Blythe, since she was about five years of age here in San
Francisco; knew Thomas H. Blythe for about two months
before his death; was introduced to him at 27 Geary street
by the defendant; she introduced him as "Mr. Blythe"; met
him again in his office in 7241/^ Market street; the subject of
their conversation was in regard to some statuary and paint-
ing that she was making for his house at his new home on
the Colorado river; witness said it was very nice to have a
companion who was capable of doing such nice work; Blythe
spoke of his home on the Colorado river and the enjoyment
he expected to have there ; he said to witness that he spoke to
him freely because of his acquaintance with her and his hav-
ing had charge of her; he said it would give him great satis-
faction to have this work and to occupy their home there in
their true relations, as the world would understand it prop-
erly ; upon the occasion of the introduction at 27 Geary street
Blythe said that he felt that he was already acquainted with
witness, because Alice had so often spoken of witness to him
and of the relations that witness had occupied to her as a
sort of guardian at the time she came up from Arizona;
Estate of Blythe. 221
witness saw ]\Irs. Blythe at 6 O'Farrell street, but did not
remember the subject matter of any conversation had with
her at that time ; met her on the street several times, once in
particular on Kearny street; had a conversation with her
then ; that was just before the introduction ; she said Mr.
Varney had fallen and broken his leg and was unable to make
the collections, and she wanted witness to go up and see Mr.
Blythe, to see if he would not employ him to make the col-
lections; witness did not meet her often enough in the few
years before the decease of Mr. Blythe to know what relations
she occupied; witness always called her "Alice"; did not
know Blythe at all in any shape before the introduction ; wit-
ness always has had a kindly interest in the lady since her
childhood.
The defendant in her testimony swore positively that Mr.
Blythe spoke of her as his wife in presence of this witness,
Mr. Hodge, anjd that she introduced Blythe to him as her
husband.
Herman Kohn knew the lady defendant, Mrs. Blythe, in
1881 and 1882 ; she often came to the store of witness, where
he was in his business with his father at 1114 and at 1132
Market street, to buy goods, with Mr. Blythe; first knew her
as Mrs. Blythe in the latter part of 1881, or the fore part of
1882; witness said to her, "Miss Dickason, I have some very
fine goods"; Mr. Blythe said, "Mr. Kohn, excuse me; Mrs.
Blythe"; sometimes Blythe paid for goods and sometimes she
did, and sometimes not; when she did not witness simply
made a charge check; at one time witness made up a buggy
robe for him from some skins that Blythe had brought up
from his ranch; the robe was not finished before his death,
but when the skins were dressed and plucked he said that
I\Irs. Blythe would be pleased with it; witness first knew Mrs.
Blj'the as "Miss Dickason" from 1876 to the time Blythe
corrected him in the latter part of 1881 or former part of
1882; witness has had a charge against her as "Mrs. Blythe"
for the buggy robe ; the charge was made after his death ;
witness sold the buggy robe for $-15 ; cut up the buggy robe
into trimmings and sold it as trimmings for about $i5 ; sold
it to different customers who wanted beaver trimmings; wit-
ness produced the books of his business in court, such as he
222 Coffey's Probate Decisions, Vol. 4.
retains, and finds an entry May 14, 1883, of a tag of purehase
made December, 1882; no charge made against her between
1879 and 1883; the bill marked "Kohn Exhibit 1" was made
out by witness, dated May 14, 1883, items of charges made for
purchases on December 22, 1882, and January 10, 1883.
Henry Tostem^n occupied the store on the corner of Geary
and Dupont, where the "City of Paris" is now; rented the
place from Mr. Blythe from the first part of 1878 to 1882,
when the building was torn down. Always knew the defend-
ant as ''Mrs. Blj^he."
Thomas Dain was private secretary for Blythe from June
1, 1878, to January 10, 1879 ; knew the lady defendant, as
"Mrs. Blythe," first sometime in the fall of 1878; witness
had a room on the top or third floor, above the rooms occupied
by the decedent and defendant. The housework was done by
a colored woman named Mary. Did not know her other
name.
Herman A. Rosenbaum knew the defendant as "Mrs.
Blythe"; she dealt with him in 1881 or 1882 in his business
as butcher, corner Sutter and Dupont streets; the articles
were delivered at 6 O'Farrell street.
John McGuire knew defendant Mrs. Blythe as a regular
customer at his poultry stall for six or seven years ; witness
kept books, but when he closed his business he pitched his
books out — had no use for them; entered the charges to "Mrs.
Blythe," and they were paid every month. She lived at one
time on O'Farrell street, and at another time on Post or
Geary street; witness marked the packages for Mrs. Blythe
and his boys delivered them; he served this lady for six or
seven years and more tJmn that before the death of Mr.
Blythe.
If this witness did not err he was serving her as Mrs.
Blythe for two years or more before she claims to have en-
gaged in the transaction with Bl.\i:he of May 19, 1878.
The testimony of Logan Hunton. collector for the water
company, and of John C. Gore, in the same situation, is not
material in the judgment of the court.
Edward Neumann, chemist, had charge of the Maldonado
Pharmacy, 36 Geary street, from December 12, 1882, to June,
1883; the defendant dealt there and witness knew her as
Estate of Blythe. 223
"]\rrs. Blythe"; she purchased various articles; cannot re-
member exactly what; some of the articles were delivered to
her over the store of Radovich, opposite the pharmacy; wit-
ness didn 't keep the books ; they were kept by Mr. Maldonado ;
witness thinks she first came in shortly after New Year's,
1883 ; does not remember whether she was introduced by some
one or introduced herself.
S. F. Morris, cashier of water company, identified on the
company's meter register an entry "27 Geary street," which,
with the other charges, were Avritten by a Mr. Kimball ; the
"Mrs. Blythe" was ^vritten by him; don't know who wrote
the "T. H." over the erased "Mrs."; it was originally "Mrs.
Blythe," then "Mrs." was erased and "T. H." put over.
Mrs. Frances Louise Feeney's testimony signifies nothing.
Mrs. Frances Pique had a conversation with Mr. Blythe
two months before he died; went to his office to dispose of
some concert tickets; witness asked him how Alice was and
he said, "I want you to call her Mrs. Blythe; as long as
my name's Blythe her name will be Blythe, and w'hen my
name is something else her name will be the same"; witness
asked him, "Why don't you marry herT' he answered that
she would not be a bit better off; that he could not marry
her; it would not hold in the eye of the law; he said, "You
know the reason why; you know I can't marry her by the
name of Blythe, because it would not be legal," but intended
to settle up his affairs here and go to IMexico and take her,
and it would be all right, there he would settle and be as
happy as a king; he said he had no fault to find with her;
she was a good woman, a good housekeeper, and he was very
happy with her; when witness had the conversation with
Blythe there was no one present but him and her and the
dog ; he had wanted witness to take apartments with her hus-
band and daughter in the house 27 Geary sfreet, but witness
declined, because Blythe was living with Alice in that way,
and so told him, when the conversation ensued as before re-
lated; witness knew Alice from her childhood, for eighteen
years; witness is seventy-four years of age, is on good terms
with the defendant, IMrs. Blythe, and spoke to her lawyer
and told him what she knew, as testified to by her.
John Franklin Bernal knew the defendant as "IMrs.
Blythe," Had occasion to go to 6 O'Farrell street, because
224 Coffey's Probate Decisions, Vol. 4.
Mrs. Gutierrez used to do washing for Mrs. Blythe and wit-
ness used to carry the bundles sometimes; they had a Chinese
servant; Mrs. Blj^the was always engaged at some species of
domestic work; once when witness called there and rang the
bell, and the Chinese servant opened the door and motioned
witness upstairs; and he went up, and Mr. Blythe was in a
little room, sitting at a desk writing, and witness asked him
for "Mrs. Blythe," he called out, "Alice!" and she came
forth and took the bundle ; witness is working in the kitchen
in Clark's bakery, on Kearny street; came to court under sub-
poena but without fee ; first saw Mrs. Blythe in May or June,
1881 or 1882, at Mrs. Gutierrez's house on Geary street, near
Mason street; this was in 1881; in that house witness was in-
troduced to Mrs. Sanchez, the aunt of witness, by Mrs.
Gutierrez, in Spanish, "Presento la esposa del Sefior
Blythe"; witness' aunt could not speak English; they had no
further conversation.
Mrs. Pietra Doyle, wife of John Doyle, barber, knew
Thomas H. Blythe for about a year before he died ; this wit-
ness is a sister of Mrs. Gutierrez; knew the defendant Mrs.
Blythe; knew her by that name and also formerly as ]\Irs.
Peters; knew her in 1881 at corner O'Farrell and Dupont
streets, where she kept a lodging-house; when witness first
saw her there, Mr. and Mrs. Blythe and she were present,
no one else ; from that time on witness knew her only as Mrs.
Blythe; she introduced witness to Mr. Blythe and she said,
"Mrs. Doyle, I make you acquainted with my husband, Mr.
Blythe"; witness was here from 1881 to 1882; they occupied
rooms on the second floor, sitting-room, kitchen and dining-
room; frequently had meals there with Mr. and Mrs. Blythe,
dinner, breakfast and supper; conversed often together; he
would call her "Mrs. Blythe" all the time when he would be
talking to her; met him on the street at different times and
asked him how Llrs. Blythe was, he would reply that she was
well and would ask witness to come around and see them;
whenever witness saw her in the house she always dressed
well, plainly, sometimes wore ornaments, diamond earrings,
gold watch and chain, silk dress sometimes; there was a
Chinese servant there; never saw anything done by Mrs.
Blythe except to make a bed in his room ; she would sit talking
Estate op Blythe. 225
with witness; never saw anyone giving orders to the Chinese
servant except Mrs. Blythe; first knew her as "Mrs. Peters"
fifteen years ago; when they were living in San Bernardino
witness knew her as "Miss Dickason"; she was married then,
but witness did now know it until she went to Los Angeles
and was introduced by her to Mr. Peters as her husband;
witness remembers a conversation with Mr. Blythe about a
blue tea-set that he said he had got for Mrs. Blythe, so they
could drink tea out of it when their friends came ; he once
told witness that he intended to go to the Colorado river after
awhile and settle there with Mrs. Blythe ; he said he had
bought the blue tea-set for his wife; he said either "my wife"
or "Mrs. Blythe," "it is all the same," it was one or the
other; he always called her eitlier "Mrs. Blythe" or "my
wife"; sometimes he would address her as "Alice"; witness'
husband is here now, he came up from Los Angeles with wit-
ness yesterday (January 19, 1890) ; she did not know she was
to he a witness; no one has promised to pay her for coming
here to testify; on the occasion of the introduction in 1881
Blythe said she was his wife; witness had not talked with any-
one about her testimony in this case ; may have eaten at the
house of Mr. and Mrs. Blythe fifty times; witness' husband
was working here at that time; went away in 1882 to Los
Angeles, and have remained there ever since; sometimes they
have been at San Bernardino; visited Mrs. Blythe at 27
Geary street; "No, I never was there"; they were not living
there when she visited them; do not remember the exact
words of the conversation that took place at any of the meals ;
remember the exact words of the introduction because such
a fact is apt to make an impression; received $50 from ex-
Judge Hatch of Los Angeles to pay expenses to this place.
John Doyle, husband of Mrs. Pietra Doyle, a barber and
hairdresser, knew the defendant since fifteen years ago in
San Bernardino ; saw her in San Francisco on the sidewalk in
front of O'Farrell and Dupont streets, and she told him she
was married, but did not tell him the name; afterward
learned that it was Mrs. Blythe; witness met Blythe one day
as witness was going to catch the train for San Jose to go to
the Democratic State Convention, and Blythe asked him
Prob. Dec, Vol. IV— 15
226 Coffey's Probate DECisidisrs, Vol. 4.
where lie was going, witness told him, and Blythe said, "Wait
awhile," and looking over his shoulder said, pointing to this
lady defendant, "Mr. Doyle, this is my wife, Mrs. Blythe";
think this was October 1882 ; witness was not a delegate to the
Democratic State Convention at San Jose, but he was going
there to work at his business; witness was first introduced to
Mr. Blythe by Mr. Gutierrez; it was Mrs. Gutierrez who first
told witness that this lady was * * IMrs. Blythe ' ' ; witness knew
her as Mrs. Peters in San Bernardino in the winter of 1874-
75; the people around the house used to call her "Miss
Alice"; witness got $50 from ex- Judge Hatch to pay expenses
of himself and wife coming up here ; came up to testify in this
case and for no other purpose; they told no one before com-
ing up here as to what they could testify to, and never talked
with anyone about it; before coming here had a letter from
Mr. Highton and Mrs. Blythe to which he sent an answer.
Mrs. Annie C. Joice once owned, in 1879, the cottage at
433 Hayes street; witness recognized receipts marked respec-
tively A. E. B. 's Exhibits S3 and T3, dated April 17, 1879,
and May 17, 1879, which were written by her little girl at
that time by her direction; those receipts were given to the
defendant Alice Edith Blythe; witness is not willing to
swear that those are the identical papers that her little girl
wrote ; it is a long time since, and of course there is a change,
but her opinion is that that is her girl's writing ten years
ago; she is most positive that it is, but is not willing to
swear to it; witness was in New York when defendant took
the house, and when witness returned the lady complained
that she had not had receipts for a month or two previous,
and witness told her to give her name to "Georgie," her
daughter, and she would write receipts, and she gave her the
name of Mrs. Blythe; witness' little girl was then about
twelve years old, in 1879 ; witness declined to answer whether
her daughter had gone away to avoid being a witness in the
case.
Mrs. Sophie Koerner, wife of Max Koerner, who formerly
kept the store under the Baldwin Hotel on Market street, from
1878 to 1886, embroideries and fancy goods, corroborated her
husband.
Estate of Blythe. 227
Wong Louis knew Thomas H. Blythe; worked at 6 O'Far-
rell street for Mrs. Blythe; went there after another China-
man, named "Tom," who went to China; when witness went
to 6 O'Farrell street he knew the defendant as "Mrs.
Blythe," his friend "Tom" told him that that was her name;
witness knew her by no other name; he used to cook, wash
windows and attend to housework; this was from May, 1S82,
to October, 1882, when they moved to 27 Geary street; she
used to stay at home evening, sew or read the newspaper;
they used to dine together; he used to call her sometimes
"my wife" and sometimes "Mrs. Blythe," and sometimes
"Alice"; sometimes visitors would call, among others Gen-
eral Andrade — he sometimes slept there also, and had break-
fast, lunch and dinner at 6 O'Farrell street; Mr. Blythe was
nearly always sick ; he did not sleep alone ; he slept with Mrs.
Blythe; witness often took breakfast to him while he was
ill in bed and saw her there ; Mr. Eggleton used to visit there ;
Mr. Gutierrez used to be there; he was working for Mr.
Blythe; Mr. Cherry also; Carrie Moss (now Mrs. Cherry)
also came there; also Mrs. Gutierrez; witness had plenty of
work to do; slept on the top floor at 6 O'Farrell street; at
27 Geary street were all on one floor; prepared three meals
a day; sometimes extra meals; at the table the "boss," Mr.
Blythe, and his wife sat at table, very much the same way of
life as at 6 O'Farrell street; Mr. Blythe used to spend his
evenings at home with his wife; witness slept there at night
but was out sometimes in the evening, and he would return at
10 o'clock; when Mr. Blythe would leave in the morning he
would kiss her, and when he came in he would also kiss her
and call her "my dear" and "my darling"; witness was pres-
ent when Mr. Blythe died; Mrs. Blythe was very sorry; she
cried terribly all the time; went to work for Mr. Blythe in
May, 1882; saw Mrs. Blythe there, but Mr. Blythe was then
sick and was sick for some time after; everybody that called
there addressed her as "Mrs. Blythe" — Mr. Jeffers so called
her, as did Mr. Andrade, Mr. Gutierrez, ]\Ir. Varney, and
everyone else who visited the house; when Mr. Blythe would
leave home in the morning he would embrace and kiss the
lady and say, "Good-by, my dear wife," and she would say,
"Good-by, my dear husband." Mr. Blythe would come home
228 Coffey's Probate Decisions, Vol. 4.
every day to every meal ; no one told the witness what to say
on the witness-stand; after Mr. Blythe died she cried "ter-
rible"; she cried all the time; when the old man with red
cheeks and white hair (the late public administrator, Philip
A. Roach) came the next day she was crying"; she was crying
all the time. ^
Nathan J. Hyman, jeweler, of 307 Kearny street, fourteen
years in that store, knew the defendant nine or ten years by
the name of Mrs. Blythe ; she had cash transactions with him ;
first transaction between nine and ten years ago; obtained
her name from herself ; did not enter the same in any book.
Louisa Sanchez, born in 1838 at the Presidio, knows Mrs.
Gutierrez and Juan F. Bernal, nephew of witness; met the
lady defendant, Mrs. Blythe, before the death of Mr. Blythe,
who was introduced to her by Mrs. Gutierrez; have not seen
her frequently since ; Mrs. Gutierrez and her nephew, Bernal,
and two or three others were present ; the words were simply,
"I introduce you to Mrs. Blythe"; this was in Mrs. Gutier-
rez's house on Geary street, between Dupont and Kearny, and
in no other house. This witness was examined through an
interpreter.
Morris Raphael, jeweler at 128 Kearny street, knew Thomas
Blythe. "Was introduced to the defendant at 333 Kearny
street, at jewelry store of Henry Myers, where witness was
then engaged, in the fall of 1882, as "Mrs. Blythe," and
knew her by no other name since ; she dealt at the store many
times; witness was not introduced by Mr. Meyers, but after
she left witness asked Mr. Myers her name, and he told him
her name was "Mrs. Blj^the"; when she came in afterward
witness addressed her by that name always ; Henry Myers was
the son in law of witness.
Guillermo Andrade knew Mr. Blythe from 1876; inter-
ested with him in enterprises in Mexican lands ; began to
have an office with him in 1878, and so continued until the
time of his death; saw him frequently while witness was in
town, and for a time lived with him at his house; first went
to his house at 6 O'Farrell street in 1878 or 1879— first in
1878 — and lived there in 1882 about three mouths, more or
less; in 1882 witness called at his house at his special in-
stance and request, and Blythe desired him to take up his
Estate of Blythe. 229
abode there, because they were in basiness together and
occupied an office together, and it was more convenient to
live at his home; witness first met the lady claiming to be
the widow in 1878, in the office of Blythe, 7241/2 Market
street; saw her there several times before witness became
acquainted with her; was introduced to her by Mr. Blythe in
his private office; he said, "I present to you Miss Dickason,
a fine artist"; at the same time he requested her to show to
witness some of her pictures in her studio in the same house,
7241/^ Market street, it was opposite Blythe 's office on the
second floor. The studio consisted of two rooms ; went there
with the lady and Mr. Blythe; were there five or six min-
utes. Witness believes he next saw her at 6 O'Farrell street;
never knew that she had any other name than the one Blythe
introduced her to him by; heard him call her "Alice," and
sometimes "dear Alice," and sometimes "my child"; once
heard him introduce her to Mr. Pomroy, an attorney of
Tucson, A. T., as his niece. This introduction took place
by Mr. Blythe saying to Mr. Pomroy, "This is Miss Dickason,
my niece"; don't recollect whether it was at 6 O'Farrell
street or 27 Geary street. Witness had much correspond-
ence with Mr. Blythe; Wright Exhibit 78, dated March G,
1883, from Guaymas, Mexico, was written by witness to Mr.
Blythe; also Wright Exhibit 63; did not see Blythe subse-
quent to the writing of those letters; never heard him say
that he was or was not married.
Asa Fiske testified to nothing of material import.
Frank Garrissere — married twelve years; in 1882-83 was
in business at 113 Dupont street; ladies' hairdresser; knew
the late Thomas H. Blythe; knew the defendant, Alice Edith
Blythe, about fifteen years; worked for her since 1875 or
1876; first when witness was at 40 Geary street, in 1874 or
1875; first worked for her when she sent for him to shampoo
her hair, and witness went over to her house above the bar-
room on Geary street and saw her there, and also Mr. Blythe ;
she sent witness a note to come and dress her hair and the
note was signed "Mrs. Blythe"; she sent at different times
as many as four or five notes all signed in the same wa}';
this was after the marriage of witness; witness remembers
the time of Mr. Blythe 's death; cannot tell the exact year;
230 Coffey's Probate Decisions, Vol. 4.
he must be dead about seven years ; the lady is Mrs. Blythe,
the defendant present in the courtroom; it took about an
hour or an hour and a half to shampoo her hair; witness
does not remember anything that was said on any of these
occasions; knew her by the name of Mrs. Blythe and never
by any other name; the house was at 27 Geary street, over
Radovich's saloon; witness is positive it was there in 1875
or 1876 and Mr. Blythe was there all the time, walking up
and down and making some remarks on the style of dressing
the hair; witness dressed her hair before and since many
times, and has dressed her hair since his death at 27 Geary
street, and went there in response to notes signed by her as
"Mrs. Blythe"; witness has not dressed her hair in some
time; the first time he dressed her hair was at 27 Geary
street ; the last time before Blythe died was about one month ;
witness kept no books and made out no bills.
W. S. Halpruner, chiropodist and orthopedist, 850 Market
street, saw Mrs. Blythe at 27 Geary street; when there to
fix her feet; went upstairs and entering the rooms saw her
sitting on Mr. Blythe 's knee, and witness said, "I am the
gentleman who fixes the feet," and witness wanted to know
who Avas his patient, and ]Mr. Blythe said it was this lady,
"my wife," and he wanted witness to treat her nicely, and
he would pay him reasonably, and he did so ; paid the witness
five dollars; witness was occupied about forty-five minutes;
subsequently met Blythe on the street, opposite the Imperial
Gallery, and witness asked him how were his wife's feet, and
he said very well except one toe; it was about seven years
ago (testimony given February 17, 1890), since witness
treated the lady's feet, the latter part of January or the
first part of February, 1883; witness remembers Mr. Blythe 's
appearance; he was perhaps fifty-five or sixty years old,
about five feet eight inches in height; it was about 2 o'clock
in the afternoon, on a week day; kept no entry of transac-
tion; since 1882 only kept a cash-book; this little cash-book
contains only the daily figures of his receipts, but no entries
of separate items; when the witness met Mr. Blythe on the
street he only asked him how was his wife's feet, and he
said very well except one toe.
Ferdinand Falck, druggist, testified to nothing material.
Estate of Blythe. 231
Jeremiah F. Sullivan, painter, 510 jMarket street, knew
Thomas H. Blythe; remembers when the "City of Paris"
was built, was estimating on the painting of that building
and called at the office, 7241/^ Market street, and the lady
defendant was there, and witness said if he was engaged he
would call again; he said "No," and told the witness to sit
down; witness said he would just as lief call again, but he
said "No," to remain, that this was "Mrs. Blythe," his wife,
and it was the same lady who is here defendant, Alice Edith
Blythe; this was in January or February, 1882.
William Hollis, real estate, 224 Montgomery, knew Thomas
H. Blythe a great many years; remembers the time of the
trouble with Nellie Firmin; remembers first seeing the de-
fendant, Mrs. Blythe, about ten years ago; witness was on
Market street, near the photograph gallery, and was talking
to Blythe when she passed and smiled, and witness made
some joking remark to Blythe about his being a great favorite
with the ladies, and he said that was his wife; was only a
casual acquaintance of Blythe 's; he said either that the lady
was his wife or "Mrs. Blythe," cannot remember which,
but it left the impression on the mind of witness that she
was his wife; cannot give the exact words.
Rebecca Kelly's evidence is of no consequence.
David A. Nolan, waiter in Jo Giusti's restaurant, in Cali-
fornia Market, knew Mr. Cox, now deceased, who Avas a
poultry dealer in the market; witness knew the defendant,
Alice Edith Blythe, for twenty or twenty-two years, first
knew her as Miss Dickason when she used to come to the
old New York Bakery, 628 Kearny street, with her mother;
then she was a girl about twelve or thirteen years old. Next
saw her in the California Market, when Mr. Cox introduced
witness to her as "Mrs. Blythe," about ten years ago; Cox
said at the same time that he was going to her husband's
ranch in Mexico ; when Mr. Cox introduced witness to her
it was in the restaurant; he came in and sat at the table,
and said, "Mr. Nolan, this is Mrs. Blythe"; do not remem-
ber what else was said at that time ; she was in the restaurant
when Cox came in; she had already told witness she was a
married woman, but did not mention her name, and witness
did not inquire.
2o2 Coffey's Probate Decisions, Vol. 4.
Stephen Vincent Elliott, employed by O'Brien & Spotorno^
poultry dealers in the California Market, formerly with Chas,
Cox in the same place, knew the defendant, Mrs. Blythe; she
was a customer; witness often delivered poultry there, dead
and alive, to Mrs. Blythe at 27 Geary street, in 1881; the
packages were directed to "Mrs. Blythe"; Mr. Blj^the was
there at one time, and he expressed himself pleased with some
live poultry witness took there; and witness put them at
his request on the roof ; she used to call about every day
at the market and leave orders and make purchases; Mr.
Cox died November 16, 1889.
Mrs. Margaret Hamilton, formerly the wife of Hugh Elias,
knew Mr. Blythe very well, and saw the defendant first in
what she would call Mr. Elias' office, in the Blythe block,
724^ Market street; witness went to the office for some
coloring matter to finish some maps that Mr. Elias was
drawing, and there met Mrs. Blythe, and the defendant was
present, and he said, "Mrs. Elias, allow me to introduce
you to Mrs. Blythe"; the witness has ever since known her
by that name; she was always spoken of by Mrs. Elias and
witness in her presence as Mrs. Blythe; Mr. Blythe called
quite often to the house of witness, 326 Ellis street, when
her husband was in the Colorado river colony, and fre-
quently said to her that he was going to take them down
there to settle — that is, Mr. Elias, witness, her babies, and
his Avife; Mr. Blythe never spoke to witness about ,the girl
Florence ; have strong doubts about the girl being his child.
The testimony of the Tidds may be passed without remark.
Mrs. Maria Antonia Peralta knew^ a person named Thomas
H. Blythe; knew the defendant, Alice Edith Blythe. for
about five years; first saw her at the house of Mrs. Eloisa
Gutierrez on Geary street, between Kearny and a narrow
street; don't know the places well; there were present this
lady and Mrs. Gutierrez, the witness, and a gentleman who
came with the lady, an elderly gentleman, to whom she intro-
duced witness as "Mr. Blythe"; the witness was introduced
to this lady by Mrs. Gutierrez by the same name as the
gentleman, "Mrs. Blythe"; she said, "I introduce to you a
friend of mine, Mrs. Blythe"; Mr. Blythe was present at
the time; witness never saw them together after that time.
Estate of Blythe, 233
because he died; witness knew this of her own knowledge,
because Mrs. Eloisa Gutierrez had prepared a dinner for
both of them — a Spanish dinner; witness assisted in its
preparation ; the gentleman was a large, tall, thick man ; he
may have been taller than the lady; he must have been taller;
witness does not recollect whether he had beard, mustache
or goatee, or whether he had a smooth face; did not pay
much attention, for witness went away almost immediately;
witness does not remember whether the name was "Blythe"
or "Beach"; after a pause witness said she now remembered
that it was "Blythe"; witness is aunt of Juan F, Bernal;
he was at her house the night before she testified and told
her she would be wanted in court to testify to what she
knew; the introduction took place about five years ago (wit-
ness was examined February 19, 1890) ; the introductory
ceremony was in English; witness does not speak or under-
stand English; the introduction was in English, she under-
stood, because it was not so difficult; can understand a very
few words. Witness being shown a photograph of the dece-
dent (Alice Edith Blythe 's Exhibit R3), she says that from
the appearance of the body she thinks that is the same per-
son, but cannot say as to the features. This witness was
examined through an interpreter.
L. Oesterreicher, real estate dealer of 503 California street,
knew the lady defendant, Mrs. Alice Edith Blythe; first
met her in 1878 ; was introduced to her by an old gentleman,
Joe Harris, at a house on the southeast corner of Geary and
Dupont streets, a two-story frame house, where the "City
of Paris" block now stands; was introduced to her as "I\Irs.
Blythe"; have never known her by any other name since
that time in 1878 ; have not spoken to her since that time ;
she spoke to witness on the morning of the day he was
testifying (February 19, 1890), about the circumstances of
the introduction and the proposed purchase of property, and
then he remembered, but he had not thought of it since
1878 until she refreshed his recollection.
Joseph II. Hammond, a tailor, made clothes for the dece-
dent, Blythe; the last was in 1881; he always wore dark
green, but the last suit was a shade lighter and it did not
please him; he introduced witness to the lady defendant^
234 Coffey's Probate Decisions, Vol. 4.
who was painting in a room, and said, "This is my wife,
and whatever she is satisfied with will suit me"; he said,
"Mr. Hammond, this is my wife, and she will pick out the
goods, and whatever she selects I will be satisfied"; witness
says he is hard of hearing; has been deaf for twenty years;
can hear on the street or in a street-car, but not so well in
a room; the introduction took place in a room in the fall of
1881, upstairs on Market street, next a photograph gallery,
about opposite Third street; witness can hear sometimes
better than at other times; witness says that when a person
speaks to him in a room he must be close to him; when the
introduction was made they were all very close together;
the room was small ; the lady was sitting down painting.
C. T. Medovich had a coffee saloon on Floral Grove
(Brooks street) ; Mr. Blythe used to come in sometimes to
order a cup of coffee to be sent up to Mrs. Blythe; witness
has always known her by that name; was in business there
about four years when he sold out to his partner.
Jacob Ward Smith, deponent of New York, formerly a
resident of San Francisco, was introduced to Blythe in 1877
and subsequently became very well acquainted with him;
used to dine with him, drink with him, smoke with him and
sit with him in his office; in 1881, as near as deponent can
recollect, does not remember the month, was invited by
Blythe to dine with him at the corner of O'Farrell and
Dupont streets, top floor; at the dinner deponent was intro-
duced to a woman by Mr. Blythe; this was the first time
witness met her; when witness went into the room Blythe
presented him to the lady as Mrs. Bh^the; he said, "This is
my wife, Major Smith"; he said to her, "This is the gentle-
man who has come to talk with me about the railroad matters
in Arizona and Mexico"; it was about 6 o'clock in the after-
noon when witness went there, and he remained there until
nine o'clock that night; there was no one there but Blythe,
the lady, the Chinese cook, and witness; afterward Blythe
removed to Geary street; witness' rooms were in 22 Geary
street, opposite; was often invited by Blythe to go to his
rooms upstairs, where he was living with this woman, Mrs.
Blythe ; they talked about railroad matters and about women ;
talked about his girl ; Blythe told him that when the railroad
Estate op Blythe. 235
was built he was going to leave San Francisco and go down
there and settle for life, take his wife with him, his dogs
and all his pets; witness met Mrs. Blythe again, in 1881,
can't give the month; made arrangements with Blythe in
her presence at that meeting for Dr. De Groot to write a
prospectus of Blythe 's land and their railroad, Blythe to
pay for same; at that meeting on Geary street sat with
Blythe and his wife until 11 o'clock, talking and drinking
and smoking; left at about 11 o'clock; the next morning after
that, living opposite to Blythe, Mrs. Blythe sent the Chinese
cook over to witness and told him that Blythe had taken a
bath and was very sick; witness did not go over, from the
fact that he was himself sick, for he had fallen down with
paralysis on the street the night before, paralysis of his right
side, and witness could not leave his room nor talk; all the
recollection witness has of being introduced to her or of any
talks is as stated; it all occurred in 1881; witness always
knew her as JMrs. Blythe and always called her so ; having a
room directly opposite, witness used to see them sitting to-
gether at the window, every night, talking; often exchanged
bows with them across the street; he called her "Pet," or
**My dear"; witness often talked with Blythe at his office
about railroads, lands and his woman, but don't remember
exactly now ; witness says his mind is not in a condition just
now (at the time of taking deposition) to remember the exact
language of the interviews; witness knew her before Blythe
introduced her as his wife as "Mrs. Dickason"; Blythe told
witness that he had not a relative living; that he was going
to take his wife and go down to the Colorado, Lower Cali-
fornia, and settle; raise sugar, cotton, etc.; this was in 1881,
in San Francisco, in his office; witness' relations with him
were very intimate and confiding; witness had known her
before as Mrs. Dickason, but at that time she was intro-
duced for the first time as "Mrs. Blythe"; met her after
Blythe died in front of her door once in presence of C. P.
Duane.
Hugh Elias, now of the town of Gold Hill, Storey county,
in the state of Nevada, aged fifty-one years and upward, by
present occupation a mining engineer, first met Thomas H.
Blythe in the month of December, 1879 ; knew the lady desig-
236 Coffey's Probate Decisions, Vol. 4.
nated Alice Edith Blythe during the lifetime of Mr. Blythe;
had seen her since first he went to Mr. Blythe 's office, passing
in and out almost daily from Mr. Blythe 's private office;
she had also a suite of rooms on the same floor opposite Mr.
Blythe 's office, which at that time she used as a studio, being
a very good artist in oil-color painting; about a month after
witness had taken up his quarters in Mr. Blythe 's office he
said to witness one day, "Come across, I want to introduce
you to a lady friend of mine, who, I think, will astonish
you on art matters"; they were just then talking on that
subject; there was another lady in the room; witness was
somewhat embarrassed, and does not remember by what
formality they were introduced; had several conversations
afterward respecting the lady in question; remembered one
rather long conversation in particular, it took place in Mr.
Blythe 's office; they were conversing principally on matters
transcendental, destiny, affinity, etc., when he informed wit-
ness that he had certainly discovered his affinity in the person
of Mrs. Alice Edith Blythe, the exact term by which he desig-
nated her at that time witness has quite forgotten ; the affinity
consisted of her being the right height, the right weight, the
right complexion and the right temperament, giving his
standards of each; on several occasions he praised her house-
hold management and expressed his admiration of her talents
generally; prior to Mr. Blythe 's death witness knew her as
Miss Dickason, Mrs. Blythe and other names; saw them
together at their home on several occasions, the conversa-
tions being generally on ordinary subjects as a rule; witness
dined with them at times ; she always presided, as in any
household; witness met her very frequently on the street, at
times in the office; often at their home; conversed on such
occasions, always very friendly; addressed her sometimes by
one name and sometimes by the other; in conversations with
Mr. Blythe he usually referred to her as Alice, whilst witness
generally called her Miss Dickason; in all conversations re-
specting his future home in Mexico, whenever the question
of household arrangements was the immediate topic, it was
distinctly mentioned that Mrs. Alice Edith Blythe was to
be the head of such household; witness and family came
next; Thomas Dunn was to continue keeper of the hounds^
Estate of Blythe. 237
Varney was too old; some others were mentioned as avail-
able whose names witness had forgotten ; had a conversation
with him in 27 Geary street, in presence of the defendant
Alice Edith Blythe in the early part of February, 1883;
witness was in the office arranging the terms for selling one-
half of the Market street block, also the sale of the Blue
Jacket mine ; the conversation came about by his first inform-
ing witness that he intended shortly to visit his Mexican
property and fix upon a site for his future home, the pros-
pective beauties of which he at once commenced to descant
upon ; he reiterated that Mrs. Blythe, the witness and family
were to go with him and remain during the term of their
natural lives, there being land enough to enrich them all;
such was the substance of the interview as nearly as the
witness remembered it; witness remembered further at this
interview the matter of providing Mrs. Blythe with palfreys
and riding stock came up, as witness did not previously
know that she was an equestrienne; this interview took place
in Mr. Blythe 's office, as nearly as witness could recollect.
Meyer Berkowitz was in business at 15 Dupont street, next
to the Hammam Baths ; knew Thomas H. Blj^the since 1857
or 1858 ; knew the lady defendant as far back as 1875 ; Mr.
Blythe brought her to his store and said she was his wife
and to give her what she wanted; this was in 1881; subse-
quently she came in and bought a cloak ; about a week before
he died she came in and bought a short sacque; witness
says his memory is bad, not good for dates or conversations;
his memory has always been bad.
J. H. Stallard, physician and surgeon, went to 27 Geary
street on the occasion of Mr. Blythe 's death; found him
lying on the floor in the lap of the defendant, Mrs. Bl3'the,
and saw also Mr. and Mrs. Gutierrez; the defendant was
greatly excited and awaited the result of his examination
with anxiety; witness pronounced him dead; she was greatly
shocked and surprised, in a highly nervous state; witness
prescribed for her then, and the next day, also, she was in a
highly hysterical condition, and witness again prescribed for
her; the next day, i. e., the 5th of April, 1883, thirteen hours
after death, Dr. W. F. IMcNutt and witness made a post-
mortem examination and an autopsy; it was made at about
238 Coffey's Probate Decisions, Vol. 4.
9 o'clock in the morning; it took about one hour or one
hour and a half; it was very thorough; witness prepared a
notice or paper for her at her request, and placed it on
the door at the head of the stairs, that Mrs. Blythe being
sick no one should be allowed to see her; witness attended
her for about a .week afterward, gave instructions that she
should see no more persons than she was absolutely obliged
to; witness remembered the fact of Mr. Blythe 's funeral;
witness attended her twice a day for several days; in about
a week she had regained a fair amount of composure; the
notice was put on the door on the 6th of April; witness
had prescribed seclusion and absolute rest, and she com-
plained that the intrusions of visitors had become intolerable,
and asked witness to write the notice and put it up, and he
did so, as he believed, on the morning of the 6th of April,
1883.
Elizabeth Ann Vigoureux saw Captain James M. McDon-
ald twice at 1009 1/2 Turk street; he was visiting the Perrys;
he was a tall, stout man, with a full gray beard; witness
has no personal acquaintance with him; she recognizes his
picture as one of a group of supervisors affixed to the munici-
pal Reports, 1887-88.
Herman Liebes, furrier, in his deposition, testifies that the
decedent, Mr. Blythe, said in 1880, when he guaranteed the
credit of defendant for a sealskin coat, "this lady is going
to be one of these days my wife"; deponent furnished the
coat on installments of $30 per month; the transaction was
entered in the name of "Mrs. Dickason" (Villette) ; one
sealskin dolman, $270; the bills were produced in connec-
tion with the deposition: "Miss Dickason, 6 O'Farrell street,
October 21, 1881, in account with H. Liebes & Co., dealers
in furs, 6 Montgomery street."
Counsel for the defendant in the opening argument said
that they could not recover upon the weakness of their adver-
saries, but must rely upon the strength of their own cause,
and in closing it was claimed that upon the testimony pre-
sented that they had proved that the defendant had become
the wife of the decedent, Thomas H. Blythe, by an agree-
ment followed by assumption of marital rights, duties and
Estate of Blythe. 239
obligations, under section 55 of the Civil Code of Cali-
fornia.
IS THE CLAIM OF ALICE EDITH BLYTHE SUSTAINED ?
Is this claim sustained? Has the defendant, Alice Edith
Blythe, maintained the claim set forth in her cross-complaint
in this action? Is the story told by her consistent, in itself,
consonant with her conduct from the commencement, and
corroborated by the testimony produced in her behalf ? And
is it not met and overcome by the evidence in opposition to
her claim? What is this case? Consent followed by as-
sumption. Consent has always been of the essence of mar-
riage, because assumption preceded by consent satisfies the
statute. Form is of no consequence, it never has been a
matter of moment, contends the counsel for this claimant.
It would have been better, he admits, and happier for the
defendant if she had insisted upon a ceremonial marriage,
according to her own religious belief; but we are not dealing
here with exalted standards, we are dealing with human
nature as it is, with facts as they are, with the law as it
exists, and, therefore, whatever our own elevated standard
may be, we must concern ourselves solely with what is prac-
tical in this regard. Many things she did, concedes her
counsel, which we cannot approve of as discreet or prudent;
but that does not condemn her claim to the status of wife.
That status is dependent mainly, for its establishment, upon
her own evidence, and her counsel insists that her evidence
is supported by all the facts and circumstances proved in the
case. She was, he says, on the whole the best witness he
ever saw on the stand ; her answers were terse, compre-
hensive, responsive and complete; when she got through she
stopped and waited for the next question. There are no
discrepancies, asserts counsel, in matters of substance in her
evidence; and he further says as to the reasons why she did
not take up her abode in No. 6 O'Farrell street until April,
1880, that the substance of the fact is precisely as she stated
it, whatever may be the immaterial variations in matters of
form. Does the court believe, asks counsel, that she was
at No. .6 O'Farrell street between May 19, 1878, and April,
1880? Does the court believe that from fear of annoyance
240 Coffey's Probate Decisions, Vol. 4.
from her former husband she did not care to have her status
known? Or that the Nellie Firmin troubles caused a tem-
porary veiling by Blythe of the true relations between him
and defendant, for it was a "temporary veiling" rather than
secrecy ?
In answer to, these questions the court, in considering the
testimony of the defendant, Alice Edith Blythe, in reference
to spending most of her time at 6 O'Farrell street prior to
April or May, 1880, will have recourse to the official report
of her evidence. Her testimony shows that she did not
go there to live until April or May, 1880, as appears by
the following references: The colored girl was hired for Mr.
Blythe in 1878, and kept house for him until and including
April, 1880, as shown by the testimony. The name of the
girl so emploj^ed was Mary Williams, and she was known
by that name until she married a Mr. Stepney in June,
1879. At psge 74 of volume 1, official reporter's transcript
of the defendant's testimony, at the bottom of the page, she
says that from May 19, 1878. down to October, 1878, she
took about all her meals at 6 O'Farrell street; and on page
75 of the same volume she testifies that she took breakfast
sometimes at her cottage, and states that the meals she took
at No. 6 O'Farrell street were always taken with Mr. Blythe,
and that he had a colored woman at that time whose name
was Mary Stepney, who was the cook and housekeeper and
waited on the table and attended to the rooms. During this
period the colored woman's name was Mary Williams. The
defendant could not have known her as Mary Stepney previ-
ous to June, 1879 ; and when the defendant went to live
at No. 6 O'Farrell street, in April or May, 1880, the same
colored woman was there and her name was then Mary Step-
ney. The defendant's testimony on the same page shows
that while she was at the cottage and going so frequently
to No. 6 O'Farrell street, she did not see any person and
does not remember of meeting any person there during that
period, from May to October, 1878, although she says that
during this period she slept at No. 6, and in the room of
Mr. Blythe. In her testimony, page 53 of volume 1 of the
same transcript, it appears that she was familiar with the
cottage, No. 28 Dupont street, before she saw Mr. Blythe
Estate of Blythe. 241
in reference thereto. She knew a lady that had lived there,
a Mrs. Heims. She states that she frequently met Mr.
Blythe there on that business in the evening, in his parlor,
where he was sitting waiting for her; but she met no one
else with Mr. Blythe during that time, and the conversations
were mostly about the cottage. In her testimony at the top
of page 55 of the same transcript she says she moved into
the cottage about the 17th of May, 1878; on this page she
further states that during the time before the marriage cere-
mony she was with Mr. Blythe very often and that she took
a great many steps back and forth not only to his rooms
but to his office ; she was at No. 6 'Farrell street about
every day; she would go out and purchase things and come
back and tell him what she had purchased, and was at the
house about every day or at the little cottage, back and forth,
but did not move really in there until about the 17th. She
was in No. 6 'Farrell street and to lunch and dinner, and
when not there she would be in his office; pretty much
everything she purchased she consulted him about, and she
says of course that made her take a great many trips back
and forth, not only to his rooms but to his office. At the
bottom of page 76 of the same transcript she was asked the
following question: "Q. When you left that cottage in
October, 1878, as you have stated, to what place did you
go?" and on page 77 this is her reply, as follows: "A. I
went to No. 7 Mason street." In her testimony at the top
of page 78 she states that she roomed at No. 7 Mason street
until February, 1879. On the same page she also states that
she slept most of the time at No. 6 'Farrell street in Mr.
Blythe 's room. Then she was asked: "Q. Did you sleep at
all at No. 7 Mason street?" and she replied: "A. Yes, sir,
sometimes I would remain there if I was not feeling well
and remain at home.'" "Q. Did Mr. Blythe ever come
there?" "A. No, sir."
IS the story of the marriage probable?
It is quite evident from this testimony that the defendant
considered No. 7 Mason street her home, although sleeping
at No. 6 O 'Farrell street. It seems strange that she should
Prob. Dec, Vol. IV— 16
242 Coffey's Probate Decisions, Vol. 4.
have called No. 7 Mason street her home unless such was
really the fact. She also says that Mr. Blythe never went
to No. 7 Mason street. Had he been married to her he cer-
tainly should have called there, and the story of their being
then married seems improbable. During this time, as shown
in her testimony, page 79 of the same transcript, she was
getting unsatisfactory food at No. 7 Mason street. It might
be asked, what difference did that make if she took most
of her meals at No. 6 O'Farrell street? It appears that Mrs.
Fagan, her landlady at No. 7 Mason street, visited Mr.
Blythe at his office (as Mr. Blythe told defendant) and said
to him that defendant's health was quite poor, and that he
had better send her up better food than she, Mrs. Fagan,
was supplying her for breakfast and lunch, and also some
wines and ale.
At page 86 of the same volume she states that all she did
at No. 6 'Farrell street was to look after Mr. Blythe 's linen
and clothes. Her counsel then asked her this question: "Q.
While you were living at No. 7 Mason street and going to
No. 6 O'Farrell street, did many persons come to No. 6?
A. During that time I do not remember meeting anyone
but Mr. Blythe."
In her testimony at the bottom of page 86, she states that
at one time she was stopping at Hayes Valley; and at the
top of page 88 she testified she moved from 7 Mason street
in February, 1879, and went to live at 433 Hayes street.
She never saw Blythe at 433 Hayes street (see page 90 of
her testimony). The defendant left 433 Hayes street in
June, 1879 (see page 94). She was asked the following
question (see page 93) : "Q. Now, while you were living
at 433 Hayes street, beyond Miss Firmin, did you see any
other person except Mr. Blythe and this colored woman at
No. 6 O'Farrell street that you can remember? A. I can-
not remember of anyone at present."
At page 94 of the same volume it appears that the de-
fendant left Hayes street and went to the Sisters on Rincon
Hill, She took the furniture she had at 433 Hayes street
and fitted up a room for a colored servant, and she took
the balance to 724i/^ Market street and furnished the studio,
room 15.
Estate of Blythe. 213
She was then asked this question, at the hottom of paj^e
95: "Q. How long did you stop or occupy those rooms at
Sister Mary's; how long did you stay at Rincon Hill? A.
I think until October or November of 1879."
It will be remembered that in November, 1879, Blythe
obtained a release from Nellie Firmin, and it might be sug-
gested that if the defendant was married to Mr. Blythe that
she would then have gone to live with him at No. 6 O'Farrell
street.
The defendant was asked the following question by Mr.
Highton, at page 98: '*Q. Where did you remove to from
Rincon Hill? A. My mother came up in November, 1879;
I went with her to Jones street. Q. To whose house? A.
To Mrs. Herson's. Q. Who? A. Mrs. Herson's, formerly
Mary Markley." (This is Mrs. Clara P. Ford.)
At page 98 of her testimony the defendant was asked
whom she saw during this time, and the only persons she
saw were some people around the office; that was in the fall
of 1879 ; after she went to her studio, in June, 1879, at 7241/^
JMarket street, and she says, "I saw a great many people
coming and going about his office."
She remembers Mr. De la Montanya, a clerk of Mr.
Blythe 's, and Mr. Dain, thereabouts, or soon after that time,
and sometime afterward Mr. Elias.
It appears that her mother came up in November, 1879,
and the defendant and her mother went to Jones street to
live, to 305 Jones street (page 99).
If Mr. Blythe had desired the association and company of
the defendant, as stated by her on page 100 of the same
volume, it might be asked why she did not take her mother
to Mr. Blythe 's house instead of keeping from her mother
the fact of her marriage, for at this time Mr. Blythe kept
roomers at No. 6 O'Farrell street.
At page 101 of her testimony it appears that the defend-
ant was living on Jones street, and considered it her home.
This would be a portion of November, the whole of Decem-
ber, 1879, and a portion of January, 1880. It seems, as
shown on page 102 of the same volume, that defendant's
mother left Jones street first. Now for the first time, as
shown on the same page, she speaks of meeting Mr, Andrade
214: Coffey's Probate Decisions, Vol. 4.
while at 6 O'Farrell street, but is not sure about it or the
date. It seenis to her that about that time, she says, she
saw Mr. Andrade and a number of Mexican gentlemen whose
names she has now forgotten. She thinks one was Consul
Pritchard. During this time her mother did not know any-
thing about her relations with Mr. Blythe. One page 103 of
her testimony in the same volume it appears that she re-
moved from Jones street to 72-1% Market street and occupied
three rooms, 15, 16, and 17; this was in 1880; she had three
rooms there for a studio, and she furnished two rooms at
11 Geary street. At page 104 of the same volume she states
that she occupied the rooms at 7241/2 Market street until the
beginning of April, 1880. It might be claimed that the only
occupancy of those rooms w^as that of a studio, but as she
kept one of those rooms as a studio up to the time of Mr.
Blythe 's death, it would seem that the occupation she re-
ferred to was that of living there. That is to say, according
to her own evidence, she did not go away from 724l^ Market
street until April, 1880, for in that testimony she says, in
speaking of Mr. Blythe: "He told me to make myself com-
fortable there for a few months; by that time he thought
he would have all his affairs fixed in such a way with this
Miss Firmin that it w^ould be possible for me then to perma-
nently reside at 6 O'Farrell street." Now, this statement is
certainly inaccurate; for during the month of November,
1879, previous to the time of which she speaks, Mr. Blythe
had fully fixed and disposed of all matters with Nellie
Firmin, as is shown by the release on file and in evidence in
this case. (Wright Exhibit 89 A.) At page 105 of her tes-
timony, it further appears that she left 7241/^ IMarket street
about the 1st of April, 1880, and went to No. 6 O'Farrell
street permanently. Before doing so she had a conversation
with Mr. Blythe about her removal. The conversation took
place at No. 6 ; he simply told her he wished her to get rid of
her furniture and come over there to No. 6, permanently.
He said that it was absolutely necessary that she should go
over and take complete charge of the house, as he was troubled
with the servants, and that the time had come when it was
necessary for her to go.
Estate of Blytiie. 215
The witness, speaking of the next person whom she met at
O'Farrell street (page 110 of her testimony), says it was
Mr. Gershom P. Jessup, and this was soon after April, 1880,
or may have been in May or June, 1880.
From this time on the witness mentions various persons by
name seen by her at No. 6 O'Farrell street, but prior to that
time only mentioned Mr. Andrade, and of that she was not
sure,
THE WRITTEN EVIDENCE AS TO THE CLAIM OF ALICE EDITH
BLYTIIE.
Written evidence is of the highest dignity, and is to be
considered of greatly more consequence than oral; and in
this case this legal truism is particularly impressive in con-
nection with the writings produced in relation to the defend-
ant's claim of wifehood.
There is in this case a collection of writings which nega-
tive her allegation ; among others her letters to Mr. Blythe
while he w^as in Mexico; these letters are of vital import as
affecting her claim to the title of the wife of Thomas H.
Blythe. The counsel for defendant says that these writings
constitute the strongest argument in favor of the opposition
of this claim, but to his mind they constitute a strong argu-
ment in favor of the assumption of marital rights, duties and
obligations; but even, he continues, if they could be tortured
into evidence against her, they could not change the status
assumed on May 19, 1878. Are such letters, queries counsel,
to overcome the evidence of defendant herself, of sixty-four
(64) witnesses, and of the fact of the consent-marriage it-
self, and of Blythe 's own declarations? One declaration that
he was married, asserts counsel, is worth a hundred that he
was not married. This assertion of counsel depends for its
validity on the quality of the evidence that sustains the claim
that Blythe made any declaration or admission.
Let us now consider the letters, pertinent e"xcerpts from
which are here given. There is one point not controverted,
that Blythe left for IMexico on his first trip on the fifth day
of November, 1882. On Tuesday night, November 7th, 1882.
she wrote a letter to Thomas H. Blythe (Wright's Exhibit
44), as follows:
246 Coffey's Probate Decisions, Vol. 4.
"San Francisco, Tuesday Night, 8 P. M.,
November 7, 1882.
"Dear Uncle: I am going to write you without knowing
what about. The block is all right and everything quiet.
Mr. Varney seems to be busy. He has nothing to tell me to
write you excej^t 'everything is lovely.' Mr. Andrade called
to see me this afternoon. I looked so fierce and dusty (for
Louis and I have been raising things already) that he did
not remain long; his call was short and pleasant. I thought
I Avould be nervous and lonesome, but strange to say I am
neither. I have not felt afraid. I have such perfect faith
in Grant; he is worth his weight in gold. I am now so glad
I did not bother with any strange old woman; I want noth-
ing better than Grant. Monday I set Louis to washing. I
made out a list of intentions for myself. I put on my hat
and vowed I would not come home until every item was car-
ried out; strange to say I have executed everything I in-
tended to do. Louis has got through nearly all the washing,
and to-day I put down a nice liner on the stairs to save the
stair carpet; I continued it straight along to the bathroom,
for that hall is used the most, and the hall leading to the
kitchen, on that I put the old stair carpet. To-day I bought
my dress, and gave it out to be made ; I was not very anxious
for a new dress, but I was afraid my money would evaporate.
The dress is all l^dy cloth, all wool and black; you will like
it. I told Mr. Varney yesterday to tell Mr. Jeffers of your
instructions respecting the supplies for Mr. Irish's lumber,
etc. Mr. Varney told me to-day that he done so. Oh, the
cats. They miss you so much. Bob wails in such a doleful
way. He makes me annoyed. I have been too busy to miss
you much, but the cats keep busy looking for you."
This letter is unsigned.
On November 8, 1882, the defendant also wrote to Mr.
Blythe (Wright's Exhibit No. 45), and in this letter she
signs herself, "I remain devotedly your niece, Alice." On
the Friday following the departure of Mr. Blythe the de-
fendant wrote to Mr. Blythe (Wright's Exhibit No. 23 A),
as follows: "Dear Uncle: I hope this letter will find you
much improved in health. I have wished every day that I
could know whether you were better or not, but better I feel
Estate op Blythe. 247
sure you are. Everyone is very kind to me. Your friends
have all called in succession and proffered their services. I
feel honored by their kind attention and rest assured I shall
comport myself with the dignity that shonld belong to the
niece of yours." She closes this letter, *'I remain affection-
ately your niece, Alice."
On November 13, 1882 (Wright Exhibit 41a), she writes
to Mr. Blythe as follows :
**San Francisco, Monday, 7:30 P. M., November 13th.
"Dear Uncle: Last night was my evening to write (that
is, if I am to write every other evening), but I had tired my
eyes reading through the afternoon, for Sunday is rather a
slow day to get through with, so I did not feel like writing,
and then I had nothing new to tell you. Mr. Varney has
just left Grant with me. I asked him the usual question, he
reports that everything is all right about the block, and that
you have nothing to worry about, only get well; that is all
you have to do ; the family are well ; Squint has never lost his
appetite, but I have. I begin to miss you about dinner time.
"I have worked hard to-day. Louis washed, I put the cur-
tains up to-day and did various other things. Mr. Andrade
called. My eyes are not strong to-night, so I will cease writ-
ing, I have nothing new to tell you. I am contented.
"Hoping this will find you improved and find you happy,
I remain devotedly your niece, ALICE,"
The next day she adds a postscript to the above and signs
herself Alice.
The defendant again wrote to Mr. Blythe November 16th
(Wright's Exhibit 67), and says:
"Dear Uncle: I wonder if you do not regret giving me
the privilege to scribble to you. I know you want all busi-
ness, and you are getting out of patience reading all this
stuff; but bless you, I don't know of any business to write
of. Mr. Varney promised me the first rainy day to let me
have Mack to carry out all your orders about shelves."
She closes this: "From your devoted niece, Alice."
She again wrote to Mr. Blythe November 19, 1882 (Wright
Exhibit 68), as follows:
"Dear Uncle: As for myself, I hardly know what is the
matter with me, but I have not been feeling over well. I
248 Coffey's Probate Decisions, Vol. 4.
have done all my work and spent all my money, and would
go to work painting if I had five dollars to start in business
with; but Mr. Varney is so stingy he will hardly give me any
money. I will have to wait until Saturday, I suppose ; he
says he won't give me another cent until then because you
said I had money enough to last a month. Varney is very
hard on me. I thought I would have fun spending all your
money while you were gone, but, alas ! there is no show for
me. Devotedly yours,
"ALICE."
The defendant again wrote to Mr. Blythe on November
26th (Wright Exhibit 69) and in this she writes:
"Dear Uncle: Since the last writing Mr. Varney put up the
shelves. Mr. Andrade called upon me, also Mr. Eggleton.
They always beg me to remember them to you, and express
wishes for the return of your health. Mr. Elias was also
here. I gave him some claret. To-morrow I commence to
paint, for all is done to the house that I can do at present.
If I had money I could do more. I expended all of my $20
on myself. Good night, ALICE."
The defendant also wrote to Mr. Blythe on December 1,
1882 (Wright Exhibit 70) :
"Dear Uncle: I was made supremely happy this morning
by the receipt of a letter from your own dear hand this
morning. I have not expected a letter from you because you
did not say you would write me. Alas, I feel used up again
(pardon the expression). Monday I cleaned up the studio;
saw Mr. Rashen in the afternoon ; he gave me a head to copy.
I painted on Tuesday, and got sick on Wednesday and Thurs-
day. As for Mr. Varney, he always seems busy, and always
about the block. Mr. Andrade calls every few days, and
Mr. Eggleton also. Last Sunday Mr. Jeffers sent me some
lovely flowers; yesterday he sent me a flowering shrub. If
I receive much more attention from your friends, I fear I
will become quite stuck up when you return. I have re-
ceived a very nice letter from Mr. Irish this morning, but I
hardly read it good I was so delighted with your letter; I
wanted to kiss you so bad for being so good, but alas, I must
wait. Your niece,
"ALICE."
Estate op Blythe. 249
On December 4th the defendant again wrote Sir. Blythe
(Wright Exhibits 71 and 72), and writes among other things
as follows :
"Dear Uncle: I expected to be painting this morning, but
I have had so many things to do before I could think of get-
ting out of this house. Louis called me at 6 :30, so I could
get around. I presume you think we are very lazy, now
that we do not have you to prod us up in the morning, but
we are not. I am quite in business, patched up three pic-
tures last week and have a credit at the Golden Rule Bazar
of $1 for said pictures; this week two more came from the
Bazar for me to fix. Night before last I had Mr. Varney go
out with me a few bloclvs, for I had some business to attend
to. He seemed afraid that you would object, but I assured
him that you would not. I rarely see him for ten minutes
at a time; he brings Grant but soon leaves, and I get pro-
voked, because a lone woman likes some one to talk to.
Thanksgiving evening Mr. Varney called and gallantly went
to sleep in your big chair while I was saying a few words to
him."
In this letter, referring to Mr. Irish, she says: "I don't
know the address of Mr. Irish. I sent his letter the same as
yours. He asked me if he could get that paint by the quan-
tity." And the letter closes, "from your devoted niece,
Alice."
The defendant again wrote to Mr. Blythe on December 7th
(Wright Exhibit 73) and says:
"Dear Uncle: I suppose you must be tired of my letters,
for I know they all sound alike. Mr. Varney has been fix-
ing the roof all day, and looked very dirty and determined
when I saw him this evening.
"From your devoted niece,
"ALICE."
ALICE EDITH BLYTHE 'S CORRESPONDENCE.
The witness explains that she addressed Mr. Blythe as
"dear uncle" because when he went away he told her to keep
a journal of her daily occupation and to send an account of
what was going on from day to day and to address him ia
250 Coffey's Probate Decisions, Vol. 4.
her letters as "dear uncle," because her letters might go
astray and get into other hands, and she obeyed him. (See
judge's manuscript notes, page 594, volume C.)
It is remarkable that Mr. Blythe, if he were her husband,
never wrote a letter to this wife during his absence in Mexico,
except one, which she has not produced and the address of
which has not been proved ; she says she did receive a letter
from him, but as she cannot find it she thinks she must have
destroyed it. This letter, if susceptible of proof, would have
been of some importance either for or against her. Preced-
ing the foregoing there is the letter of October 8, 1882, which
the defendant wrote in Mr. Blythe 's presence to George S.
Irish (Plaintiff's Exhibit 228A). The defendant testifies
that she wrote that letter to Mr. Irish, except the postscript,
which is in Mr. Blythe 's writing and the envelope in his
hand; Mr. Blythe was sitting beside her when she wrote that,
and dictated it to her, he was not in bed but his arm was
sore, and he added the postscript next day in his office; it
was on a Sunday evening when she wrote the letter; Mr.
Irish had been introduced to her by Mr. Blythe as his niece.
(See judge's manuscript notes, page 583, volume 6.)
In this letter she says she writes it at Mr. Blythe 's request,
and after writing about Mr. Blythe, his condition of health,
business, etc., she continues by saying for him: "The new
building and things are going as well as can be expected,
and although Uncle feels indisposed for office work regularly
until within the last few days. The 'City of Paris' moved
into the new building three weeks ago. It is expected the
interior of the building will be completed in three weeks and
with all the trouble and drawbacks. Uncle is tolerably well
satisfied with the building as a whole. Uncle is going to make
every effort to arrange matters here with a view to leave for
Lerdo within sixteen or eighteen days. Do not be alarmed,
Uncle's health is excellent, never better except for his arm,
which pains him so severely at night that it interferes with
his sleep. I remain your friend, Alice E. Dickason."
To this she adds a postscript: "We are going to move this
week to No. 27 Geary street. Uncle is fitting up the upper
story for his own use. A. D."
Estate of Blythe. 251
the irish letters.
The following papers and letters were found in Mr. Blythe 's
possession which referred to the defendant as "Miss Dicka-
son," and of the existence of which Mr. Blythe had actual
notice and knowledge, and notwithstanding his knowledge
did not contradict them:
Mr. Irish wrote to Mr. Blythe under date of July 26, 1882
(Plaintiff's Exhibit 441), in which he referred to the de-
fendant, Alice Edith Blythe, in the following language:
"P. S. Kind regards to Miss Dickason,"
Again Mr. Irish wrote to Thomas H. Blythe, under date
of August 3, 1882 (Plaintiff's Exhibit 442), and referred to
the defendant as follows:
"I left Colton last Sunday, and was surprised as well as
pleased to find Mr. Andrade on the cars. We dashed into a
regular business conversation at once, and though it was very
hot on the desert time flew rapidly, and it was soon noon and
I began looking for the eating station. Mr. A. said, 'why I
have a basket here.' I at once suggested opening it; motion
was carried, porter called, and table brought out, and we had
a royal feast. I was very hungry and enjoyed it so much.
We drank to your health and Miss Alice's, and said how lit-
tle she thought when putting the lunch up who would help
to eat it."
Mr. Irish also wrote Mr. Blythe under date of September
25, 1882 (Plaintiff's Exhibit 443), in which letter defendant
is referred to in the following language:
"My health is indeed good, and I am feeling well and
strong, and how glad I shall be Vv^hen in due time we have
finished the canal and brought 310 to a successful close, so I
can go down with you to Mexico, for there I know we shall
have a happy home, and in the evening after our daily work
is over Miss Alice will cheer us up with some music, and
little Flora with her pretty childish sayings."
Mr. Irish again wrote to Mr. Blythe under date of October
26, 1882 (Plaintiff's Exhibit 444), and in speaking of the de-
fendant in this letter says :
"Kindly thank Miss Alice for writing and tell her never
to hesitate, for at any time you feel tired or weary always to
lend a helping hand, for I know she is willing."
252 Coffey's Probate Decisions, Vol. 4.
In a postscript to the same letter Mr. Irish says:
"P. S. I hope you are nicely settled and comfortable in
your new quarters. So glad things are running well ; very
encouraging. Best wishes to Miss Dickason and also to Mr.
Jeffers when you see him."
LETTERS FROM YBERRI AND ANDRADE.
There was also found in Mr. Blythe's possession a letter
from W. Yberri, under date of February 27, 1883 (Wright
Exhibit 70), which in the postscript refers to the defendant
in the following language:
"I beg you to give my respects to Miss Dickinson. I am
very much obliged to her kindness, notwithstanding I have
been informed what a poor idea she has of my heart."
This letter the defendant, Alice Edith Blythe, admits was
read to her and that she knows its contents, yet she never
complained to Mr. Blythe nor anyone else that she was re-
ferred to as "Miss Dickason."
Under date of March 6, 1883 (Wright Exhibit), Mr. An-
drade wrote to Mr. Blythe, and referred to the defendant,
Alice Edith Blythe, in a postscript, in the following lan-
guage :
"Unless Miss Deckenson change her ideas about me I will
insist to expect her friendship with Mr. Yberri. He is al-
ready very mad and withers for days; he will be still worse.
Your friend, Andrade."
In another letter, under date of March 30, 1883 (Wright
Exhibit 63a), Mr. Andrade, writing to Mr. Blythe, mentions
the defendant in the following language:
"Please tell Miss Dickerson I brought a little Indian Ceris
dog to make her a present. He is not fierce, but very curi-
ous."
The defendant had knowledge of this letter and, on cross-
examination, admits that it was shown her, and yet it ap-
pears she did not find fault that she was referred to by Mr.
Andrade as "Miss Dickason."
In this connection may be considered the letter from de-
fendant to J. C. Perry, San Francisco, May 7, 1883 ; envelope
marked Plaintiff's Exhibit 208.
Estate op Blythe. 253
PLAINTIFF'S EXHIBIT 208A.
San Francisco, May 7, 1883.
Dear Mr. Perry; I have intended to write you more fully
and more often, but I have been quite prostrated and ill. I
have had a very severe cold, so severe that I have had to keep
in bed the most of the time. I have nothing new to com-
municate. I am not well enough to give you an account in
detail of what has been done thus far, so I have requested,
or rather my lawyer read to me yesterday a very concise and
clear letter he had written you, explaining to you fully and
clearly everything that had occurred thus far; he will send
you this letter which will explain everything much better
than I can do, for my poor head is quite worn out. We ex-
pect, Mr, Perry, that you will come here with Florence, to
her dear father 's home, and we will send you the means to do
so. I hope you will trust me fully and co-operate with us;
if you do so it will be right. Nothing on earth can alter my
position toward Florence. I love her because I loved her
father; I will protect her, first, because I love her; second,
because I have on my bended knees solemnly promised her
father to do so. I have his wishes and his orders to fulfill.
To me he is not dead, but with me. I am always acting un-
der orders from him, and for that reason, Mr. Perry, I do so
hope you will act with me and trust me. I want Florence
with you and me and with her father, but not separated.
I wish you to be so careful about giving any one power to
act but ourselves, for we know what we are to dear Florence
and to her beloved father; therefore, no one can, in reality,
be nearer to her than we, and no one can better guard her
or protect her interests than we. I so fear, through mis-
judgment on your part, you may fall into the hands of un-
principled and selfish people, who may even misrepresent
me to you; but surely you will trust me before people you
have never known, for I can never possibly have any selfish
motives or interest; but others will have, for they vvish and
are determined to make something, and they will not proffer
their false friendship for nothing; they will want money, and
want it out of Florence 's fortune ; I can never be in that posi-
tion, for I am not working to gain anything from Florence.
254 Coffey's Probate Decisions, Vol. 4,
I love her; I am her true friend; I will work for her and
protect her and help her to gain whatever is to be hers. I do
it all for love of her and for love of her father. My aid and
co-operation is hers; I expect nothing; I want nothing from
her that is hers, unless it would be her trust and confidence^
I will work for, nothing, but you know others will not.
I have written you two letters ; I have sent a small picture
of myself; I also sent a cablegram to you, informing you of
my dear husband's death. Again I allowed Elias to send
you another cablegram for me. Mr. Elias was my husband's
clerk at one time; he is very earnest in his wish to serve
Florence and I, but he cannot be of much assistance, and I
would advise you not to communicate with him, lest he might
wish you to delegate some power to act for you, which would
not be necessary. I have three lawyers and the most re-
spectable element of the city to act with us and work for us;
therefore you need not delegate power to any one outside of
my lawyers and myself. You may trust the names of Alice
Bhi;he (in receiving cablegrams and letters), of Henry High-
ton (one of the foremost lawyers of our city), of Judge
Wheeler and Mr. Plunkett, but distrust the names of Maurice
Estee and Hart and Tyler, and a man by the name of Jef-
fers or Jefress. These last four mentioned are hungry for
money, so I think. I have reason to think so. I have reason
to distrust them; especially do I distrust the sincerity of Mr.
Jeffers. I will tell you why. At one time he assumed to be
the dear friend of my husband, Mr. Blythe. After his death
I discovered that his friendship beyond a doubt was really
assumed and hypocritical. Little things tell a woman's heart
who are really earnest and true. I had asked him to look
after the flowers on my husband's casket, to see that they
were taken care of, for I had an idea to preserve them for
dear Florence; it is enough to say that he promised to do so
but never did. To him Mr. Blythe was dead ; his hypocritical
friendship was at an end; he did not even care to look after
the flowers on his bier, for I was too prostrated to look after
anything, and he promised to do so. Other matters followed,
other breaches of trust which truly opened my eyes to the
true character of the man. I cannot enter into detail, but
believe me, I know they are not to be trusted. If you ever
Estate of Blythe. 255
come here you will know what I tell you is true, you will see
for yourself. They will proffer their friendship and services,
and they will want to be paid. They will serve themselves,
but not Florence. That I feel sure of. I can work for you
and help you ; the lawyers who serve me can serve you. Our
interests are one. I don't want to be paid. I am Florence's
stepmother and her friend, so trust me first.
Anyway, I have the wreaths preserved for Florence. I
only had the few preserved that were given by friends, not
enemies or hypocritical friends. I have tried to keep the
dogs together (and such a fight I've had for them. Some
day I can tell you). I am so anxious that Florence should
see "Grant and Alf and Fanny and Topsy." Thomas has
Topsy, but Florence can see her, for she is near us. Then
I have Florence's bird, for the bird I gave to Florence's papa.
He told me he had written Florence that he would give the
bird to her. In fact, I have kept everything together except
some old-fashioned jewels Mr. Blythe had given me, saying
some day I was to make earrings out of the turquoise studs
for Florence, because she is light. He thought a pair of the
turquoise studs would make up nice for Florence's ears. The
administrator — temporary administrator — took them from me.
I had just finished a large picture of Mr. Blythe when he
died. I was going to try and send it to Florence, and he ob-
jected, saying it was too large to send away to England, so
he told me to make a smaller one, and send it to Florence. I
have many pictures of him. I keep many of them for Flor-
ence. I have Bob and Squint also. About Mr. Elias I can-
not say anything I think. I believe he wishes to serve us,
but I cannot see in what way. If you delegate any power to
him you must pay him, and that is not necessary. I in-
dividually is all the aid you want, and my lawyers, you may
implicitly trust Highton. He is the man. He also sent you
a cablegram with my consent and approval. I received your
reply, in which you stated your co-operation with us. That
reply took a mountain of weight from my mind. I was so
afraid some unprincipled parties or lawyers would get hold
of Florence and you, really I could not sleep at night worry-
ing about poor little Florence. After receiving your cable-
256 Coffey's Probate Decisions, Vol. 4.
gram I felt so relieved. I have been sick under the strain
of waiting for words from you. I only wanted to know that
Florence was safe and with you, and hoping you would trust
me, last night for the first time for weeks, I retired to soundly
sleep until morning — that one good sleep has so restored me —
the reason I'm^able to write quite composed this morning.
All I can see for you to do for the present is to co-operate
with us completely, trust Alice and Highton, keep Florence
strong and well. I've got a curious idea in my head about
some one might steal her from you, so be so careful. It
seems for the present I would keep her at home; she can
study at home ; and during the present state of affairs she is
better close to your side. The means will be sent you to
come here with you. Use your own judgment, but I would
say come as comfortable as possible — have everything neces-
sary. I wish I could get a letter soon, to know what you
need. Let me know.
Don't let Florence out of your sight; keep by her.
Dear Mr. Perry: Please excuse this letter; I have written
the latter part of it while suffering a headache, and amidst
interruptions. I am also worried to death because you don't
give me the right to protect Florence b}' answering my cable-
gram. I am so afraid some one might steal Florence from
you. I worry, so keep her at home with you. Trust all
cablegrams signed Alice E. Blythe and Henry Highton. Be-
fore my marriage my name was Alice Edith Dickason ; after
my marriage, Alice Edith Blythe; so trust me.
Dear Mr. Perry: I have this moment finished reading your
reply to my first letter; also dear Florence's sweet and con-
soling letter. I received it while sitting here writing you.
I can hardly see to finish this for weeping over Florence's
letter; poor child, I pity her. My father died suddenly and
hundreds of miles aM^ay from us in a wild and isolated place.
My grief was great; I thought if I could only see his face
once more, but to never look upon him again, to be deprived
of even knowing his resting place, that almost killed me ; poor
Florence, none can know better than I her grief, for I have
been through the same suffering. I have now before me a
cablegram I am going to send you, telling you to come, and
I will send you the means and advising you of a necessary
Estate of Blythe, 257
step to take. You will have it to-day, but not this letter
for weeks. I wish to state this to you, Mr. Perry, I am Mr.
Blythe 's wife, I am Alice, the one he always speaks of in his
letters to you. I married him in May, 1878. I think it was
the third Sunday in May. I've lost my papers or notes of
the day. I gave Mr. Jeffers my strong-box for safe keeping
during my prostration; they burst open my box, broke the
lock and notes that would be so important to me now were
stolen from me by people, namely, I won't mention names
here, but people who received our hospitality and called them-
selves Mr. Blythe 's friends, so my notes and many proofs
were stolen from me. I have been to him all these years a
faithful, and God knows a loving wife. It was I Mr. Perry,
who urged him (to in every way possible) to acknowledge
Florence at the time of her baptism, I made him give her
his name, he thought Florence Perry would be better for
many reasons. The reasons I combated, and he gave her his
name then, May 9th.
I have had so many interruptions that it has been difficult
to finish this letter. I must now finish it hurriedly, so it will
reach you about the same time that Mr. Highton's reaches
you. I have done always, all I could for Florence. Mr.
Blythe (to some people) kept our marriage secret. I knew
he had his own reasons for doing so, on account of some mat-
ters in England and on account of some matters here, he
feared for his own bodily safety; also feared for mine. We
were to go to Mexico to live there. "We were to have Flor-
ence with us. Our marriage was no longer to be kept secret.
I am not his niece, but I am his wife. You must trust me,
for I am ever^^thing to Florence. I wish to do everything
for her; I stand by the right; I wish to see the right done.
To-day, the 9th, I am much worried, for Mr. Highton and I
sent you a cablegram you have not answered. I wished you
to appoint me guardian or representative of Florence.
Dear Mr. Perry : I will send you some more clippings. My
head aches so I cannot look the papers over. This makes
the third letter I send; Mr. Highton's makes the fourth. I
think I have sent and approved of five cablegrams to you.
Trust to Henry Highton and to me. Give me authority to
Prob. Dec, Vol. IV— 17
258 Coffey's Probate Decisions, Vol. 4.
represent Florence's interests until you come. Do as I ad-
vised in mj^ cablegram to you sent the 7th of May, signed by
myself and Mr. Higbton. It gives us authority to protect
her interest until you come, compromises no one, and helps
us to protect her interests. Consult with your adviser. I am
sure he will telLyou it is the best course to pursue. Did you
receive clipping in the paper where I asserted my wish to
protect Florence? Send letters to Alice Bl5i:he, 27 Geary
street,
Mr. Perry : You can use your own discretion about explain-
ing to Florence about her father.
I have had him embalmed; he looks as natural as in life
I have been quite determined that if it is possible, Florence
shall look upon the features of her noble and beloved father.
The embalming promises to be quite perfect. You ask me
the cause of my husband's death. The cause was determined
and examined into the next day — by post-mortem examina-
tion, three eminent physicians presiding, I cannot explain as
a physician would, so I will send you a report of the post-
mortem examination. The aorta of the heart was diseased,
some imperfection in its action.
THE FOREGOING LETTER A CONTRADICTION AND CONDEMNATION
OP THE CLAIM OF WIFEHOOD,
This letter is strongly and strangely at variance with the
testimony of the defendant and with the allegations of her
answer and cross-complaint in this action; as it is carefully
read it seems to contain a contradiction and condemnation of
her claim of wifehood.
Incidentally may be remarked the lack of unity in the re-
cital in defendant's cross-complaint and her story in evidence
of her first meeting with decedent and the subsequent pro-
ceedings down to and including the transaction of May 19,
1878.
There is no written declaration of decedent in any way
countenancing the claim of the defendant to be his wife, but
there is any quantity of written evidence that he did not
regard her in any such light, including what has been here-
inbefore quoted. The letters to the plaintiff, Florence, show
Estate of Blythe. 259
that he considered Alice Edith in another than a spousal re-
lation; "your cousin Alice," is the expression he used in
Plaintiff's Exhibit 60a, May 8, 1882, Plaintiff's Exhibit 62a,
May 22, 1882, Plaintiff's Exhibit 64a, October 27, 1882, Plain-
tiff's Exhibit 65a, December 28, 1882, letter to Mr. Perry.
These letters seem to show conclusively that the decedent re-
garded the defendant Alice Edith as niece, and not as a wife.
WHAT THE letters SEEM TO SHOW.
There are some letters appropriately inserted here, from
the decedent, in San Francisco, to Andrade, in Mexico, re-
spectively marked Plaintiff's Exhibits 281, 282, 283, in the
following order:
PLAINTIFF'S EXHIBIT 281.
San Francisco, Nov. 3, 1882.
My Dear Mr. Andrade: Your favor dated Guaymas, Octo-
ber 10, just received.
Real glad to hear is still on the improve, I hope you will
give a wide berth, as far as you can, to the sections of the
country where the cholera prevails, and that you will be able
to make a quick conclusion to all your business in the City
of Mexico and soon be in your full vigor and health on the
banks of the Colorado river. Mr. Egleton drops in now and
then to make enquiries about you. Egleton is a good old
Boul. The only party who called to see me about the Gulf
business since my last letter was Captain Evensen. He
brought with him a Dr. Tucker. Dr. Tucker, it appears owns
a vessel and they seem prepared to go into the oyster busi-
ness on their own account and wishing me to give them a
guarantee to go and get a few loads upon paying to us the
amount of royalty due the Government — one-half a dollar per
ton. I said to them that they had better wait a month or
two, until your return. There was no doubt but that they
would get liberal terms from you. I said further, that I did
not wish to take upon me the responsibility to enter into a
contract and that it was you alone who was authorized by
the Mexican company to make terms. I told them that most
likely you would be back here early in the month of Decem-
ber. They appeared satisfied and will probably wait your
260 Coffey's Probate Decisions, Vol. 4,
return. I have before me a telegram received last night from
the Messrs. Ginocchio, stating that Mr. Bateman was at
Yuma waiting for me. To-morrow, Nov. 4th, Mr. Reed and
myself start for Yuma. The understanding with Mr. Reed
is that I pay his expenses down there and that he will give
me 10 or 14 day's of his time to examine and go on the lands,
and if it is decided to go to work then to make our final ar-
rangement down there. However I shall try to postpone final
arrangement until your return, or arrival in colony. I remem-
ber well the fervor of your expression when you said, some
months ago, that it would be the happiest day in your life
when you can say that the great struggle is over and hand
me the titles for the long and hard contested issues in our
land matters. After all the fight I hope you will be pleased
to work with me in this grand enterprise and help me to
carry it out to its full magnitude. The Gulf enterprise and
the Colorado river enterprise are grand enough for one earth
life to satisfy the most stupendous ambition. Let us let
everything else go and give our v^'hole soul to those two great
schemes. I made no improvement in health until within
the last 13 days. Now under the treatment of a rubbing doc-
tor, I am slowly getting better and I trust to get well alto-
gether down on the river. It is now late and I am tired.
God bless you and hope to see you soon in perfect health.
Miss Dickason thanks for your kind mention of her in your
letter, and joins me in wishing you all success and an early
return to your friends.
Ever yours,
THOMAS H. BLYTHB.
PLAINTIFF'S EXHIBIT 282.
San Francisco, March 30, 1883.
My Dear Mr. Andrade: I am anxiously waiting your next
letter. As you directed, I send a certified copy of your eon-
tract with the railroad people to Mr. Gonzalez, also by request
of Mr. Pomeroy. I sent him an official paper containing
your first contract with the Government for building a rail-
road to Port Isabel. Just received a letter from Mr, Bate-
man, saying he feared he would not be able to build the
levee agreed to be built when I left Lerdo. He said that the
Estate of Blythe. 261
Indians wonld not come over the river owing to another case
of smallpox having broke out. Mr. Bateman is a good man,
but too slow for Superintendent. In ten days from date I
will be able to start for Guaymas. Let me know, either by
letter or telegram, and I will start for Guaymas, and then
we can go to Lerdo together. Have been quite short of
money this month, but have deposited on account Mr. Yberri
with Cabrera Roma one thousand dollars. Will write to
Mr. Yberri and enclose the receipt for the same. I went
down to the bank and saw Mr. Carmana. It was all straight,
and I handed the instrument to Mr. Ahumada. Mr. Varney
is getting on nicely; he was out on the sidewalk yesterday
for a short time. Everything is moving about right here,
and the main canal is finished for the present at the Upper
Ranch. The mocking bird is sick with pulmonary troubles,
and Miss Dickason is in great tribulation. It is very im-
portant that I should go to Lerdo as soon as possible, and I
feel uneasy at not being there this very moment. The per-
sonal presence of either you or I at our colony all the time
is highly imperative, and things will not go on right if we
are not there.
Very truly your friend,
THOS. H. BLYTHE.
At what price could we purchase about 200 good cows at
Sonora, to be sent to the colony ? It is too bad that our com-
pany should not utilize the fine cattle lands we have below
Lerdo.
PLAINTIFF'S EXHIBIT 283.
San Francisco, April 4, 1883.
My dear Mr. Andrade: Glad you are home from island
safe. I am not much surprised that you have met with a
disappointment in regard to the mines of the island. Sliuing
reports are, as a rule, wild, extravagant and unreliable.
However, the fine capacity of the island for the cattle busi-
ness will tell in the long run, I should like to meet you at
Guaymas as soon as possible, and from Guaymas go together
to the Colorado river. Mr. Bateman and Mr. Howe writes
that the work on the levee has been started and is going on
with vigor, and will be finished in time. Mr. Devoto, the
Italian, is hard at work preparing the nur.sery and planting
262 Coffey's Probate Decisions, Vol. 4,
grape and other trees. Howe says that the wheat and bar-
ley are looking well. Have this day engaged seven more
Italians for the Upper Kanch ; they leave here this afternoon.
I am very anxious to get things arranged in Sonora so as to
get down to the ^Colorado river before the hot leather sets
in. There is a fight already at 27 Geary in regard to the
dog you propose to bring to Miss Dickason. Miss Dickason
reports this morning that the mocking bird is convalescent.
"We have a chicken ranch on the roof at 27 Geary street,
and get three fresh eggs a day.
Hoping you are well, your friend,
THOS. H. BLYTHE.
blythe's last letter.
This last letter to Andrade, dated April 4, 1883, would
seem to show that almost up to the very hour of his death,
under his autograph and sign manual, he repudiated any
such idea as being married to defendant; he always men-
tions her in writing as "Miss Dickason." There is not a
scrap of his handwriting in the entire body of evidence in
which she is alluded to except as "Miss Dickason," "cousin
Alice," or niece.
Among the other writings there is Naphtaly Exhibit 1,
certain certificates of stock in the "Mammoth Gravel Min-
ing Company," in the name of "Alice Dickason," concerning
which, in her cross-examination, the defendant says: "That
used to be my name ' ' ; but according to the claim here prose-
cuted by her it was not her name July 14, 1881, the date of
its issue, in the name of Alice Dickason, and its indorsement
in her own w^riting, for at that time, according to her coun-
sel, and for some time previous, her marriage had been full
and complete.
the sign on the studio door.
There was also the sign on the door of the rooms occupied
by her at 7241/0 Market street, "Miss Dickason 's Studio,"
put up in 1879, and the card. Plaintiff's Exhibit 284, written
in January, 1883, on one side the invitation: "My dear Mr.
Varney: I have succeeded in making some very nice eggnog.
Come in and have a glass. It is better than your whisky.
Estate of Blythe. 263
Cordially yours, A. Dickason"; and on the other side con-
taining the card-written address, "Miss Alice Dickason."
There was also the entry in the Court Exhibit 1, identi-
fied by the defendant as in her handwriting, on page 33 :
"Novr. 20th, took care of office part of afternoon, Dickason."
Her name is also on the roll of the Art School for the years
1880-81 as "Miss Dickason" (see testimony of John Ross
Martin, on page 717, volume 8, of judge's manuscript notes) ;
she paid her fees of tuition and was given receipts in the
name of "Miss Dickason," and was known there only by
that name. In the contract — for furnishing 28 Dupont
street — with Goldberg & Stamper, which defendant said she
had not preserved, her name was inserted as "Mrs. A. P.
Villette," which she claimed was done at request of dece-
dent; explaining that after the mistake was made in the first
rent receipt Mr. Blythe thought she might as well continue
to use that name, and so it happened that the bill was made.
(See page 573, volume 6, judge's manuscript notes.)
THE RENT RECEIPTS.
As to the rent receipts for May 17, June 17, July 17 and
August 17, 1878, defendant testified that all she remem-
bered of those is that Mr. Vamey gave them to her from
time to time ; they ran in the name of ' ' Mrs. A. P. Villette. ' '
She says that she told Mr, Blythe that the cottage was for
her grandmother, Mrs. Gillette, and he simply got the name
down wrong; she told him he got the name wrong in the
receipts, and he replied, "Never mind; let it pass." He
said it would be better to assume the name in the present
circumstances, as her life was in danger, as her lately divorced
husband had attempted to annoy her, and the woman Nellie
Firmin was annoying him, and it would be better for the
present to keep the marriage secret. (See page 553, volume
6, judge's manuscript notes.) This explanation seems some-
what in conflict with the recital in her cross-complaint, which
is as follows (see supra, page 12, lines 7-21) : "(d) At the
time of the ceremony aforesaid (i. e.. May 19, 1878), the
said Thomas H. Blythe, as he informed this defendant and
claimant, was having some litigation and much personal
difficulty with one Nellie Firmin, who falsely claimed to Jje
264 Coffey's Probate Decisions, Vol. 4.
his wife, and who was a woman of violent temper and con-
duct; and, until this litigation and this difficulty were set-
tled, it was mutually agreed between the said Thomas H.
Blythe and this defendant and claimant that their marriage
should be kept as secret and private as possible, and that
they should not'^ ostensibly and openly live together. By
agreement with him at that time, and for a considerable
period afterward, she went by the name of Mrs. A. P. Vil-
lette; and in order to disarm suspicion and to avoid any
question of propriety, for several months he gave her re-
ceipts for rent of the cottage aforesaid, made out in that
name."
THE CARD GIVEN TO CAPTAIN JAMES M. MCDONALD.
On the rent rolls of decedent she is set down as "Mrs.
Villette" and "Miss Dickason"; on the card she gave to
Captain McDonald, a most important writing, she writes her
name "Dickason." It is true she denies the writing, but
the card itself and the circumstances connected with the in-
cident testified to by McDonald are strongly opposed to the
truth of her statement. She denies in toto the facts related
by him, and for the purpose of just comparison and con-
trast the substance of the two statements may be set side
by side. On page 706 of the judge's manuscript notes, vol-
ume 8, on March 24, 1890, James M, McDonald testifies in
connection with this incident: "I swear positively as a matter
of fact that that lady sitting there [indicating the defend-
ant, Mrs. Alice Edith Blvthel wrote that word 'Dickason'
on the card (Plaintiff's Exhibit 287), as I have testified;
my recollection on that point is perfectly definite; cannot
be mistaken on that point; am sure that it was not written
by any other person or by any other lady." This was at
about 2 or 3 o'clock in the afternoon of the day after the
death of Mr. Blythe. (See page 591, volume 6, and pages
644, 688 and 689, volume 7, judge's maniLscript notes.)
The defendant testifies that she did not see Captain Mc-
Donald on that day, nor did he offer his services to her nor
ask her name, nor did she tell him it was "Alice Dickason,"
and she did not write the name "Dickason" on that card.
(See pages 739, 740, volume 8, judge's manuscript notes;
also pages 585, 590, volume 6.)
Estate of Blythb. 265
a point blank assertion and denial.
Here is a point blank assertion and denial; but the court
is of opinion that the testimony of the witness IMcDonald is
true and that the defendant has failed to recall the incident
and its attendant circumstances. A comparison of this card
with her signature to the letter to Irish (Plaintiff's Exhibit
228a) shows a similarity amounting to identity between the
"Dickason" there and the "Dickason" on the card (Plain-
tiff's Exhibit 287). This is very strong corroborative evi-
dence of his testimony even in the teeth of her positive
denial. There is no assignable motive for perjury on the
part of the witness McDonald ; he has no interest in the result
of this controversy and no perceptible bias against defendant
or for those in antagonism to her claim. Her testimony and
his are presented upon these pages, side by side. It is im-
possible to reject his sworn statement, and contrasting her
evidence with his there is no alternative but to deny credence
to her testimony. The attempt to impeach him was utterly
unsuccessful. The counsel for defendant claims that Mc-
Donald was contradicted and in most essential particulars in
many ways, directly and inferentially. This contradiction
in the manner indicated by the counsel is not apparent to
the court; but, says the counsel, even if he were not contra-
dicted, his evidence in no way affects the credit of her claim.
She was not bound to declare herself to him, and she has
told the truth now. She may not have been hound to declare
herself, but, if McDonald has sworn to the truth, she did
so declare herself and she is bound by that declaration, what-
ever may be its legal effect.
THE defendant's VARIOUS PLACES OP ABODE.
Her counsel has endeavored to show the consistency of
defendant's story as to her places of living from May 19,
1878, until she finally and permanently took up her abode
with decedent, at No. 6 O'Farrell street, in April, 1880, and
claims to have shown, as against the contrary contention, that
during this period she was at No. 6 O'Farrell street, and
spent much of her life there, and sustained there to him
the relation of wife; she spent much of her time there, both
day and night; and her counsel stoutly maintains that she
266 Coffey's Probate Decisions, Vol. 4.
not only shows, in contradistinction to the Sharon case, that
from May, 1878, to April, 1880, she not only furnished many
evidences of the assumption of marital rights, duties and
obligations, but there are many analogous circumstances
showing that the agreement for temporary secrecy was ob-
served.
WAS THERE MORE THAN A SECRET INTERCOURSE?
There was very much more than a mere secret intercourse,
says counsel for defendant, between her and decedent from
May 19, 1878, to April, 1880. There was an assumption prior
to 1880. (See page 955, volume 9, judge's manuscript notes.)
The circumstances of the first meeting of the decedent and
the defendant, and their relations at 6 O'Farrell street, were
entirely within their own knowledge, and she might have
given any version she pleased, if she were disposed to be
untruthful. She did not yield without a struggle — without
a struggle and a contract. Shall the court divorce her now?
asks her counsel, after the preceding statements.
\Yhat are the many analogous circumstances showing that
the agreement for temporary secrecy was kept? The agree-
ment was, as laid down in the cross-complaint, "that their
marriage should be kept as secret and private as possible, and
that they should not ostensibly and openly live together,"
and this secret was kept even from her mother, who came
to town in November, 1879, when defendant, as she testifies,
went with her to Jones street, near Eddy (page 536, volume
6, judge's manuscript notes) to the house of Mrs. Herson,
formerly Mary Markley (Mrs. C. P. Ford), described in her
complaint as "the house of Mrs. Captain Robinson." Her
mother knew nothing at that time of her relations with Mr.
Bljrthe; and yet, while the "temporary veiling" was not
withdrawn for her own mother, we find that the landlady of
the Jones street house, once Mrs. Herson, now Mrs. C. P.
Ford, formerly Mary Markley, claims to have known de-
fendant as Mrs. Blythe for about ten years prior to the
date of her testimony (January 9, 1890), having been intro-
duced by the defendant to Mr. Blythe at 6 O'Farrell in the
fall of 1879, having called at that house because the lady
defendant had invited her to call, having come to her house
on Jones street and told her she was married to Mr. Blythe
Estate of Blythe. 267
and invited her to visit, whereupon she called, and being
introduced, had champagne consequent upon congratulations.
(See pages 484, 487, volume 5, judge's manuscript notes.)
the pledge of secrecy.
Certainly the pledge of secrecy was not Icept in this in-
stance, if this witness is to be credited, and she is one of the
witnesses to prove assumption and existence of marital rela-
tions in 1879. Thomas Dain testified to the bare fact that
he occupied a room in 6 O'Farrell street, above the rooms
occupied by the decedent and this lady, whom he knew as
Mrs. Blythe first sometime in the fall of 1878.
H. Tosteman testified that he always knew her as Mrs.
Blythe; he occupied the grocery store under 28 Dupont
street, and speaks of 1878 particularly.
L. Oestterreicher was introduced to her in 1878 as "Mrs.
Blythe" by Joe Harris, and never saw her subsequently
until the morning of the day of his testifying (February 19,
1890), when the defendant refreshed his recollection about
the matter. (See page 608, volume 6, judge's manuscript
notes.)
William Clayton's deposition refers to two incidents, first
in 1879, second in 1881. If the first be true, it shows on
the part of Blythe a breach of the covenant to keep secret
their marriage, if "Missus" be the equivalent of "wife" in
popular parlance. The testimony of M. S. Whiting is ob-
noxious to a like criticism, if the witness has not erred in his
recollection. George A. Bates' testimony (see page 494,
volume 5, judge's manuscript notes) is void of significance
as to the claim of defendant ; indeed, if it have any force, it
is against her, as his employer, Burnett C. Brown, testifies
the plumbing work must have been done in 1881, and not,
as Bates uncertainly said, in 1879 or 1880. (See page 734,
volume 8, judge's manuscript notes.)
Mrs. Anne C. Joice's testimony may be taken in connection
with her conduct in declining to answer whether her daughter
had gone away to avoid service of subpoena, and that of her
husband and the absence of their daughter, who would have
been a material witness, as operating against, rather than
in favor of defendant's claim, if, indeed, it be worthy of
2G8 Coffey's Probate Decisions, Vol. 4.
serious consideration as containing any fact of consequence.
(See page 5151/^, volume 6, judge's manuscript notes.)
W. B. Webster's evidence does not show any introduction
by decedent of defendant as his wife; the only notable inci-
dent he recollects is one that occurred when he was coming
downstairs on '^the 1st of January, 1881. Blythe met him
and grasped him cordially by the hand, and opening the
door of the dining-room, there was Mrs. Blythe standing by
the sideboard, and Blythe asked Webster to have a glass of
wine, saying, "It is unnecessary for me to introduce you,
you know Allie, " and Webster said, "Yes, I know her very
well," and they took a glass of wine. It is straining a point
to predicate a status upon such an introduction; the letter
of condolence of this witness may be placed with that of
C. W. Beach, neither of any consequence, entirely gratuitous,
and based upon no adequate assumption.
TRANSACTIONS WITH TRADESMEN.
N. U. Hyman's testimony only goes to show certain com-
mercial transactions in which he chose to accept without
question the name given by a customer.
John McGuire was clearly off in his reckoning, as he said
he served this lady defendant, whom he knew as Mrs. Blythe,
as a regular customer, for six and seven years, and more
than that, before the death of Mr. Blythe, whom he did not
know at all. This would make his acquaintance begin with
her in that name in 1876; he had destroyed his books; he
marked the packages for Mrs. Blythe, and his boys delivered
them.
It may be remarked here that it is not shown that a
single package from the tradesmen said to have been ad-
dressed to her as "Mrs. Blythe" came while Mr. Blythe
was present, or that he ever knew anything of such transac-
tions with the tradesmen, and it is curious that she retained
so few of her bills with those with whom she claims to have
dealt as "Mrs. Blythe." She says she cannot recollect why
she destroyed those bills that she did not preserve, and she
has no bills for dress goods purchased in 1880, 1881, 1882
or 1883. She generally bought for cash, and if she had any
Estate op Blythe, 2G9
bills she destroyed them. (See pages 584, 585, volume 6,
judge's manuscript notes.)
The testimony of Gilfillan and Mulvihill (page 501, volume
5, judge's manuscript notes), may be passed without com-
ment, also that of IMedovich, who testified to Blythe 's coming
in occasionally for a cup of coffee to be sent up to Mrs.
Blythe, witness "always knew her by that name." Jacob
Ward Smith's deposition is explained by his own statements
toward its end concerning his mental condition, and his allu-
sions to the defendant as Blythe 's "woman" showing his
understanding of their relation. On the whole this witness'
testimony may be dismissed without further allusion to its
contents; it is self-condemnatory. Mrs. Sophie Koerner and
her husband. Max Koerner, may have testified truthfully as
to purchases made by Mrs. Blythe in their store, but they
fail to connect Mr. Blythe, except in a manner that does not
convey conviction (see testimony of Max Koerner, pages 500,
501, volume 5, judge's manuscript notes), and there is some
significance in the convenient loss or destruction of account-
books by the Koerners, McGuire and Berkowitz, (See page
733, volume 8, judge's manuscript notes.)
SOME FLAGRANT CONTRADICTIONS.
Mrs. Margaret Hamilton, formerly Mrs. Hugh Elias, may
have been introduced as she states, but the probability of the
fact is somewhat impaired by her statement that defendant
was always spoken of by Mr. Elias and herself in her pres-
ence as Mrs. Blythe, as Elias himself testifies in his deposition
that prior to Blythe 's death he knew her as "Miss Dicka-
son," "Mrs. Blythe," and other names, and addressed her
sometimes by one name and sometimes by the other; gener-
ally in conversation with Blythe he called her "Miss Dicka-
son," and this witness shows her partisan bias despite her
denial when she testifies at the conclusion: "I have no bias
or interest in this case; Mr. Blythe never spoke to me about
the girl Florence; have strong doubts about the girl being
his child." (See page 604, volume 6, judge's manuscript
notes.) Mrs. Gutierrez and Mrs. Pietra Doyle are two sis-
ters, and their testimony should be read together to empha-
size the fact of their relationship; neither is to be credited
270 Coffey's Probate Decisions, Vol. 4.
upon the point to which she is called, (See page 490, volume
5, and pages 513, 514, 515, volume 6, judge's manuscript
notes.) John Doyle, husband of Mrs. Pietra Doyle, who tes-
tified that he met Blythe one day while the witness was going
to catch the train for San Jose to attend the Democratic
State Convention (which was held in June, 1882, although
witness testifies it was October, 1882), and Blythe stopped
him, and pointing over his shoulder, said, "Mr. Doyle, this
is my wife, Mrs. Blythe." At about that time Blythe was
sick in bed, if it were June, 1882, and if October witness
could not have been going to catch a train for the Democratic
State Convention. Either way the witness is caught in a
falsehood of a most material and flagrant kind ; his testimony
also should be read in immediate connection with that of his
wife.
John F. Bernal's testimony is to be treated in connection
with that of Mrs. Sanchez, his aunt, with whom he claims to
have been introduced by Mrs. Gutierrez to the defendant as
"Mrs. Blythe" in Blay or June, 1881, or 1882. He testified
that once when he called at 6 O'Farrell street to deliver a
bundle of clothes from Mrs. Gutierrez, who used to do wash-
ing for Mr. Blythe, he rang the bell and the Chinese servant
opened the door and motioned him upstairs and he went up,
and Mr. Blythe was in a little room sitting at a desk writ-
ing, and Bernal asked Blythe for "Mrs. Blythe" and he
called "Alice," and she came forth and took the bundle.
Even if any fact were to be established by such testimony,
what does it amount tol Why did not the witness deliver
the bundle to the servant? How did he know the man whom
he assumed to be Mr. Blythe? It does not appear that he
ever made his acquaintance in any manner. Such testimony
is of a piece and is cut out of the same cloth with that of
Mrs. Maria Antonia Peralta, also John F. Bernal's aunt,
who testifies to an introduction (page 606, volume 6, judge's
manuscript notes). She says she was introduced also by
Mrs. Gutierrez, at the house of the latter to an elderly gen-
tleman, who came there with the defendant as "Mr. Blythe,"
and at the same time she was introduced to the lady defend-
ant by the same person in these terms: "I introduce to j'ou
a friend of mine, Mrs. Blythe." She never saw them to-
Estate op Blythe. 271
gether again, because Mr. Blythe died; she knows this of
her own knowledge, because Mrs. Gutierrez had prepared a
dinner for both of them — a Spanish dinner; it was already
made, witness assisted in its preparation. The gentleman
was a large, tall, thick man; he may have been taller than
the lady; don't recollect whether he had a beard, mustache,
or goatee, or whether he had a smooth face; did not pay
much attention for witness went away almost immediately;
do not remember whether the name was "Blythe" or
"Beach." After a pause witness remembered that it was
"Blj^the. " Bernal was at her house the night before witness
testified, and told her she would be wanted to testify to
what she knew; the introduction took place about five years
ago (witness' testimony was taken February 19, 1890, and
Blythe died April 4, 1883, nearly seven years before) ; the
introductory ceremony was in English; the introduction took
place before 12 o'clock, noon. Witness in redirect examina-
tion says she understood the introduction in English, be-
cause it is not so difficult ; she can understand a very few
words; from the appearance of the body in the photograph
(A. E. B.'s Exhibit R3) she thinks that it is the same person,
but cannot say as to the features; this witness was examined
through an interpreter.
THE CHARACTER OF EVIDENCE AS TO INTRODUCTIONS.
Such testimony as this is difficult to treat seriously. Earn-
estly as the court deprecates animadversion upon witnesses,
it is hard to forbear in such a case as this, but the strongest
censure, perhaps, is implied in the simple statement of their
story without note or comment signifying the judicial impres-
sion that it is fabrication on their part or on that of a
suborner.
The introduction, if it may be called such, to the witness
Herman Kohn, in the latter, part of 1881 or the fore part
of 1882, may be true, but when the whole story of this
witness is read over much doubt is cast upon his credit. He
swears that at one time he made up a buggy robe for Blythe
(who does not appear ever to have possessed or used a buggy)
from some skins that he had brought up from his ranch;
the robe was not finished before his death, but when the
272 Coffey's Probate Decisions, Vol. 4.
skins were dressed and plucked he said Mrs. Blythe would
be pleased with it; witness had a charge against "Mrs.
Blythe" for the buggy robe; the charge was made after his
death; witness sold this buggy robe for $45; up to six
months before testifying Herman Kohn did not think he
would be called as a witness; thought he would be let out
of coming at all. Witness cut up the buggy robe into trim-
mings and sold it as "trimming" for about $45; sold it to
different customers who wanted beaver trimmings; witness
brought into court such books of his business as he had re-
tained; there is an entry May 14, 1833, of a tag of purchase
made December, 1882; witness had no charge against her
between 1879 and 1883, a bill (Kohn Exhibit 1) was made
out by him dated May 14, 1883, items of charges for pur-
chases on December 22, 1882, and January 10, 1883.
Now, why should this witness enter upon May 14, 1883,
over a month after Blythe 's death, purchases made December,
1882, and January, 18831 And why, in all the years previ-
ous having made no entry whatever, should he, at this post-
mortem date, make any entry at all against her of a bill
incurred by Mr. Blythe? It was properly a claim against
the estate of decedent and could easily have been collected
if verified.
The testimony of Dr. W. S. Halpruner, chiropodist and
orthopedist, of 850 Market street, who operated on the feet
of defendant in presence of decedent, who, in answer to the
inquiry, "Who is my patient?" pointed to the lady who was
sitting on his knee, said, "my wife," can hardly be construed,
in the circumstances, as an introduction ; such a remark at
such a time and place is scarcely weighty enough to affect the
true quality of their relations one way or another.
The testimony of Jeremiah F. Sullivan, painter, 510 Mar-
ket street, whom counsel (Hon. E. D. Wheeler) describes,
while commenting upon the appearance of his witnesses, as
a frank, outspoken, good-looking man, a man beyond re-
proach, may be true; but he is liable to be mistaken in his
recollection, and even if not, the circumstances may have
justified Blythe in making the remark, as another counsel
says, "to preserve the decencies of the occasion." This oc-
curred in January or February, 1882. Mr. Sullivan is a
Estate op Blythe. 273
witness who impressed the court as a truthteller and one who,
making allowance for the fallibility of memory as to details
after the lapse of years, related the incident as it occurred;
but his evidence must be taken as a single item in a vast
volume of testimony of a contrary character.
WHAT MUST BE CONSIDERED EST SUCH A CASE.
But an isolated instance of introduction does not make
manifest the claimant's case; the whole conduct and be-
havior of the parties must be considered.
Ferdinand Falck, called in her behalf, knew the defendant
claimant, who was a customer of his, but never heard her
called by any name before death of Blythe, whom he did
not know.
Edward Maldonado, called for the defendant, shows that
she was not in his store until after the death of Mr. Blythe,
April 23, 1883, the first and only entry in his boolcs. Edward
Neumann, who was engaged in the "Maldonado Pharmacy,"
is uncertain as to dates between December, 1882, and June,
1883, and his testimony is subordinate to that of his employer,
who kept the books and made the entry of April 23, 1883.
THE "terrapin" TESTIMONY.
Philip Scattiny and David H. Wallace, who was employed
by Scattiny in the "Terrapin," must be considered in con-
junction, and one item shows their common want of credit.
Wallace testifies that he knew the defendant, Mrs. Blythe ;
she was a customer of the "Terrapin," where he was a
waiter; she was living at 6 O'Parrell street and afterward at
27 Geary street; he served them with oysters at the latter
place; he saw Mr. and Mrs. Blythe there on one occasion;
there was some company there; witness put the oysters down
and Mr. Blythe asked to be allowed to assist her and she
turned to witness and said: "This is my husband, Mr.
Blythe." Witness made out the bill, dated, "San Francisco,
April 1, 1883, Mrs. Alice Blythe to P. Scattiny, Dr.," contain-
ing charges for oysters, etc., from October, 1882, to March,
1883; and took it up to Mr. Blythe 's place, 27 Geary street,
for payment, and ascertained for the first time that he died on
that same day; witness does not recollect the date nor how
Prob. Dec, Vol. IV— 13
274 Coffey's Probate Decisions, Yol. 4.
long it was after the bill was made out; copied the items
from the "Terrapin" account book from an account headed,
"Mrs. Alice Blj^the"; does not know where that book is now
nor what became of it; left that restaurant in 1884, but did
business in the pie line with Mr. Scattiny afterward.
When witness made out that bill, took it by direction of
Mr. Scattiny to 27 Geary street, and went upstairs; knocked
at the door; Mrs. Blythe opened the door; witness asked for
Mr. Blythe; she said "he is dead"; witness begged her par-
don and withdrew without saying more.
It does not appear that witness ever before made out or
presented a bill to Mr. Blythe, or that he ever came in con-
tact with him except casually at the time of the introduction,
so to call it; and it will be remembered that the decedent
died at about 6 o'clock in the evening of April 4, 1883.
Now, what says Scattiny concerning the same matter?
(See pages 492, 493, volume 5, judge's manuscript notes.)
Began business at 15 Stockton street first part of 1880, and
continued there until 1887. David Wallace worked there for
about four years from the time witness began; witness first
knew the lady defendant as "Mrs. Alice," and afterward he
learned that her name was "Mrs. Alice Blythe"; she was a
frequent customer of his, and gave orders to be delivered
at 6 O'Farrell street and 27 Geary street; witness' books
are now destroyed; sometimes they charged "Mrs. Alice
Blythe" "Mrs. Alice B." and "Mrs. Alice"; the book of
final entry from which the bills were made out contained the
charge to "Mrs. Alice Blythe"; those bills were made out
by Mr. Wallace; was told that her former name was Mrs.
Alice Dickason; saw her once at 6 O'Farrell street; did not
burn his books because anyone suggested their use in con-
nection with this case; that hill was presented on the day it
teas made out; Mr. Wallace took it and hroiight it hack,
saying that Mr. Blythe was dead; it is dated April 1st, but
it was the 3d of April when he took it to collect. Comment
is superfluous.
evidence op MADAME LAPARIAT AND OTHERS.
The testimony of Madame Blaise Lapariat is strongly sug-
gestive of sinister arts in procuring evidence. This lady
Estate of Blythe. 275
did not know the decedent nor the defendant; the name
"Mrs. Blythe" on A. E. B.'s Exhibit J3 is not in her hand-
writing; she did not put in the final figure "2" in all or
any of the dates; it is stamped, not written; the witness had
no stamp; if the figure "2" were not there, she would have
written it in; never saw the figure before moment of testify-
ing; does not recognize it; cannot account for its being there;
in the name "Mrs. Blythe" the letter "r" in "Mrs." was
written by witness, but not the rest of it; the printed "M"
and the "r" after it were there, and the rest of the line was
blank; witness cannot remember that she ever had the name
of "Mrs. Blythe" on her books or the name of "Mr. Blythe."
Lucien Condrotte was one of the bread-carriers. In A. E.
B.'s Exhibit J3 the "r" is in witness' handwriting, but the
rest is not; in the other bills the "Mrs. Blythe" is in her
writing; cannot state from whom the information of her
name was received; the carriers never inserted the name of
the person; sometimes they receipted the bills, but they had
no right to insert the name; they had no right to do so.
It is quite open to inference from Madame Lapariat's evi-
dence that the bill A. E. B.'s Exhibit J3 and some of the
others were tampered with in the interest of defendant.
The testimony of Joseph H. Hammond, the tailor, a man
who was too deaf to hear ordinarily audible conversation in
a room, must be taken subject to the admission of witness'
physical infirmity and incidental liability to mistake in the
word used by decedent.
Fergus Hanson, formerly a butcher in California Market,
called for defendant, understood her to be the niece of Mr.
Blythe until she told him that she was Mrs. Bh'the; she
frequently made purchases of him; had a bill in his "blotter"
against her (A. E. B.'s 03) ; never presented that bill to
Mr. Blythe; there are only two items there, December 27,
1882, and January 16, 1883, contracted before Mr. Blythe 's
death,
I. N. Choynski knew the decedent, Thomas H. Blythe; be-
came well acquainted with him in 1875, about the time wit-
ness built his house opposite Blj^the's, on Geary street; knew
the defendant for ahont the same time; she used to come in
and buy articles at his store; collected from Blythe; charged
276 Coffey's Probate Decisions, Vol. 4.
the articles; she said, "Present those bills to Mr. Blythe";
cannot recall any remark made in paying them; the bills
were made out to Mrs. Blythe; there were at least three or
four bills in the j^ear preceding Blythe 's death; witness is
sure that it was in 1877 or in the fall of 1876 that he moved
into his store on Geary street.
It appears in evidence that Blythe did not move to 27
Geary street until October, 1882 ; no books of witness con-
taining charges are produced, and no bills. It is clear that
witness Choynski errs.
The Chinese servant, Wong Louis, is not to be depended
upon; "he proves too much"; among other things, he swears
that Mrs. Blythe used to stay at home evenings and "sew,"
read the newspapers; yet the lady herself says (see page
738, lines 29, 23, 24, volume 8, judge's manuscript notes in
her rebuttal testimony) : "I never did any work as a seam-
stress at 6 O'Farrell street, that is one thing I can't do —
SEW." In other respects the testimony of this witness may
be discredited by other evidence from the source whence it
is produced.
THE EVIDENCE OF HODGE AND ANDRADE.
Other evidence given on behalf of defendant fails to
strengthen her claim. There is the very important testimony
of the elderly gentleman, Benjamin 0. Hodge, the guardian
of the defendant when she was a child. He was introduced
to Mr. Blythe at 27 Geary street about two months before
his death (see pages 503-505, volume 6, judge's manuscript
notes) ; he did not meet her often enough in the few years
before Mr. Blythe 's death to know what relation she occu-
pied; always called her "Alice"; did not know Blythe at
all, in any shape, and yet the defendant swears that she
introduced Mr. Blythe as her husband to Mr. Hodge. (See
page 579, volume 8, judge's manuscript notes.)
It is likewise with General Guillermo xindrade, to whose
evidence her counsel (Mr. Highton) particularly calls the
attention of the court, who was friendly with the defendant,
by no means hostile in his attitude toward her as a witness;
he knew her only as Miss Dickason; he was so introduced to
her by Mr. Blythe; he never knew she had any other name
Estate of Blytiie. 277
than the oue bj' which he was introduced to her; heard her
introduced by Mr. Blythe to Mr. Pomroy, of Arizona, as
"Miss Dickason, my niece." (See page 564, volume 6,
judge's manuscript notes.)
Here are persons not casual acquaintances, not chiropodists
or painters in search or discharge of a transient job or con-
tract, but familiar friends, welcome visitors and even inmates
for a period of the very household of decedent, to whom she
was not known except as "niece," and never alluded to in
any other or more intimate relation. This applies with es-
pecial emphasis to such witnesses as General Andrade and
George Eggleton, who appears to be a man of very kind
heart, very friendly to the defendant, whose disposition evi-
dently was to say everything he positively could in her favor,
and yet he never heard her addressed otherwise than as
"Alice," and was introduced to her by decedent, Mr. Blythe,
in these terms: "Mr. Eggleton, my niece, Alice" (see page
719, volume 8, judge's manuscript notes), and defendant's
counsel claims that Andrade and Eggleton really turned out
to be strong witnesses in her favor.
DOCTOR DE GROOT'S EVIDENCE.
There is also the testimony of Dr. Henry de Groot, a wit-
ness friendly to defendant, whose evidence her counsel claims
strengthens her case. This witness testifies that in course of
conversation with Blythe in the summer of 1881 about his
mode of living decedent was very anxious to dispose of his
Trinity river property at that time, and he wished Dr. de
Groot to give him an account and opinion in detail, and they
went over the different claims until they came to the claims
named "Nellie No. 1" and "Nellie No. 2," and witness,
knowing the circumstances under which they came to be so
named, said, in a jocular way, that it was unfortunate, from
a business point of view, that they were so named; Blythe
said, "Yes," that the person after whom they were named
was unworthy of the distinction, but that his experience had
made him careful in his alliances; witness asked him if he
was married, he said no, but that he had met a very comely
young person, a Miss Dickason, whom he had taken into his
service or as his housekeeper; that she was something of an
278 Coffey's Probate Decisions, Vol. 4.
artist, and lie thought by aiding her she might be able to
take care of herself; that she was a person of rather high
temper but amiable, and he thought they would get along
together; witness went there again subsequently to present
report on mining affairs, remained upward of an hour, con-
versed about domestic affairs; Blythe seemed to be in greater
distress than before; witness suggested that in view of the
contingency of death he ought to have his affairs in good
shape; Blythe acquiesced and said he had an impression or
foreboding that he would not live long; seemed very much
depressed on that account, he said that lately since he had
become ill he had a strong desire to send for his daughter;
that he would like to have what he never had had, a home of
his own, but that his domestic arrangements seemed to pre-
sent a difficulty about bringing out his girl; witness said he
thought a moneyed consideration, a few thousand dollars,
might cause a good-looking young woman to prefer her free-
dom and take her chances of marrying a younger man in
preference to keeping house for an older one; Blythe said
impatiently that he had thought of that, but he did not want
to terminate those relations abruptly and an expedient had
occurred to him of adopting her as his niece, and he had
done so ; witness remarked to Blythe that he thought it was
an excellent expedient; witness said to Blythe, in connection
with the claims "Nellie No. 1" and "Nellie No. 2," that it
was unfortunate in a business point of view they were so
named, because the miners up there made remarks to his
prejudice on account of her having accompanied him to the
estate, and the names necessitated explanations; witness did
not so state to Blythe, but it occurred to him; Blythe said
he did regret the naming of the claims, as the person (Nellie
Firmin) had proved ungrateful and had caused him a great
deal of trouble, and he said, not mentioning her name, how-
ever, that he believed some women v/ould poison a man to
get his property, and he said his experience with her had
made him more cautious since in his alliances with women;
witness then said he supposed he was living a bachelor's
life; he replied that the Scriptures say "it is not good for
man to be alone," and "not exactly married"; then he said
he had met a comely young woman; he said that at their age
Estate of Blythe. 279
marriage was a dangerous experiment, especially in Califor-
nia, where there were so many scheming adventuresses; he
said he had met a comely young person, Miss Dickason, whom
he had taken into his service or under his protection or as his
housekeeper; in the course of conversation he used all of
these expressions.
TESTIMONY OP LIEBES, FUR MERCHANT, COMPARED WITH THAT
OP HERMAN KOHN.
The deposition of H. Liebes, the fur merchant, examined in
behalf of defendant, shows that, whatever may have been his
intention as to the future, Blythe did not at that time regard
this claimant as his wife. Mr. Liebes furnished a sealskin
coat to defendant in 1880, and her credit was guaranteed
by Blythe, who said, "This lady is going to be one of these
days my wife." The coat was furnished on installments of
$30 per month; the transaction was entered in the name of
"Mrs. Dickason (Villette), one seal dolman, $270"; the bills
produced in connection with deposition run: "Miss Dickason,
€ O'Farrell street, October 12, 1881, in account with H.
Liebes & Co., Importers of Skins and Manufacturers of Fancy
Furs, 111-117 Montgomery street." (See page 742, volume
8, judge's manuscript notes.)
Now, it is surpassing strange that the deponent should on
such an occasion deny to Mr. Liebes, when he was called upon
to speak to the fact, in her presence, what he declared to
young Herman Kohn at about the same period (see page 505,
volume 6, judge's manuscript notes). He said to Kohn, cor-
recting him reprovingly: "Mr. Kohn, excuse me, Mrs.
Blythe," and Kohn charged goods in name of "Mrs. Blythe,"
so he swears; but during or about the same period this mil-
lionaire husband guarantees credit of the same lady to
Liebes for a $270 sealskin coat, to be paid for in $30 a month
installments, charged to "Mrs. Dickason (Villette)" in hig
books, bill rendered December 17, 1880, and on the bill ren-
dered October 21, 1881, to "Miss Dickason, 6 O'Farrell st."
This was long after the necessity for retaining the "tem-
porary veiling" of the relations of decedent and defendant
had passed; why, then, say, "This lady is going to be my
wife," while countenancing her credit for such purchases.
280 Coffey's Probate Decisions, Vol. 4.
Liebes testifies that the names on the books and on the bills
rendered were given at the time by the defendant.
THOMAS DRAKE MATTHEWSON.
In the summer of 1882, according to his testimony (see
page 718, volume 8, judge's manuscript notes), Thomas
Drake Matthewson had a conversation with Blythe about art
and artists at 7241/2 Market street, and Blythe took Mat-
thewson across the hall to a room where there was a young
lady engaged in painting pictures, and he introduced wit-
ness to her as "Miss Dickinson." Blythe said she was an
orphan or half-orphan, or something of that sort, and that
he was assisting her.
GARRISSERE, THE HAIR DRESSER,
The testimony of Frank Garrissere, examined in behalf of
defendant, needs only to be read to show that the witness
erred egregiously, if he thought he was telling the truth ; he
swore that in 1882-83 he was doing business at 113 Dupont
street; that he knew the defendant, Alice Edith Blythe, for
about fifteen years, and worked for her since 1875 or 1876,
first when he was at 40 Geary street in 1874 or 1875; first
worked for her when she sent for him to shampoo her hair,
and went over to her house above the barroom on Gear}-
street, and saw her there, and also Mr. Blythe; she sent the
witness a note to come and dress her hair, and the note was
signed "Mrs. Blythe"; knew her by the name of Mrs. Blythe
and never by any other name; her house was at 27 Geary
street, over Radovich's saloon; witness was positive it was
there in 1875 or 1876, and Mr. Blj^the was there all the time,
walking up and down and making some remarl?s on the
style of dressing the hair; witness kept no books and made
out no bills. The fact is, as clearly appears, that Garrissere
was not doing business on Geary street when defendant and
decedent occupied 27 Geary street.
Elliott's error.
The young man, Stephen Vincent Elliott, who testified
that he was born in Stockton, September 6, 1860, and yet
was only twenty-six years old on February 19, 1890 (date of
testifying), can scarcely be held accountable for his state-
Estate of Blythe. 281
ments, insignificant though they are ; he testifies that he often
delivered poultry, dead and alive, to Mrs. Blythe at 27 Geary
street in 1881; that the packages were directed to Mrs. Blythe,
and that Mr. Blythe was there one time and expressed him-
self as pleased with some live poultry, and at his request
witness put it on the roof. Of course, as the decedent and
defendant did not go to 27 Geary street until the fall of
1882, witness must have made a mistake when he said 1881.
MRS. pique's testimony.
Mrs. Frances Pique, called by the defendant, testified
direct against her claim (see pages 510, 511, volume 6, judge's
manuscript notes). This venerable lady was on good terms
with the defendant, having known her from her childhood,
and asked the decedent, with whom she was and had been
in cordial relations for many years, why he did not marry
Alice, and he answered that he could not marry her. "You
know I cannot marry her by the name of Blythe; it would
not be legal." He had no fault to find with her; she was a
good housekeeper and he was happy with her; witness de-
clined to accept his invitation to take apartments with her
husband and daughter in the house at 27 Geary street "be-
cause he was living with Alice in that way," and so told him.
THE "golden RITLE BAZAAR " EVIDENCE.
Wm. F. Hanson, superintendent of the "Golden Rule
Bazaar," testified that he knew the defendant since, prob-
ably two years before Blythe 's death, when she first dealt
with him and bought a fancy card-receiver and gave her
name as "Dickason," because witness wrote it as "Dickin-
son," and she said it was not so and corrected him. (See
pages 708-711, volume 8, judge's manuscript notes.)
Andrew M. Davis, proprietor "Golden Rule Bazaar," knew
defendant as "Miss Dickason"; identified an entry on a
book of his firm: "Petty Cash D. B. 1882," page 168, "Miss
Dickenson March 17, 1883, $4," referring to cash received
from defendant.
QUADE, THE GROCER.
A. Quade, the grocer, formerly with C. J. Hawley & Co.,
215-217 Sutter street, from 1869 to 1883, knew the defendant
282 Coffey's Probate Decisions, Vol. 4.
as a customer of that firm, prior to the death of Blythe, but
did not know her by any name.
JOHN K. LUTTRELL's STATEMENT.
John K. Luttrell testified that decedent spoke about mar-
riage to him; Blythe was talking about his cats and dogs and
how he spent his evenings, and witness jestingly said to him
that he ought to get married; Blythe said he was too old,
that anyone who would marry him then would do it simply
for his money; that he never had been married and conse-
quently never would marry; Blythe urged witness to visit
him and remain at his house instead of going to the hotel,
that he had no one but his housekeeper, whose name he did
not mention, and that they would spend their evenings pleas-
antly together; but witness did not accept the invitation;
this was in the early part of 1883. (See page 731, volume
8, judge's manuscript notes, and pages 116-119, volume 2,
same.)
MILO SYDNEY JEFPERS ON SAME SUBJECT.
Milo Sydney Jeffers testified that the first time he met
the defendant was at a lunch at 6 O'Farrell street to which
he was invited by Mr. Blythe to meet Geo. S. Irish. The
lady was addressed as Miss Dickason, and witness always
knew her subsequently by that name. Jeffers had a conver-
sation with Blythe about the defendant in July or August,
1882, in Blythe 's room; witness asked him if he intended to
marry "Alice"; Blythe said, "No, but I will make her my
legal niece." That was all that was said on the subject;
she was not in the room at the time, but was in the house.
(See page 694, volume 7, judge's manuscript notes.)
JOHN T. GRAY, THE PLUMBER.
John T. Gray, plumber, did plumbing work for decedent
at 27 Geary street, had conversation with him in reference
to defendant; he simply said: "Go there and Miss Dickason
will show you what is to be done." Mr. Blythe always said
"Miss Dickason"; that was his general way; witness did
work for Blythe for several years at 6 O'Farrell street and
27 Geary street; from the time witness first saw the defend-
Estate of Blythe. 283
ant until the death of Blythe knew her only as "Miss Dicka-
son."
JOHN A. WRIGHT, THE ADMINISTRATOR'S ATTORNEY.
John A. Wright, attorney, testified that he first saw the
defendant the day after Mr. Blythe died, in the rooms at
27 Geary street, in the afternoon; there were present W. H.
H. Hart, Mr. Jeffers, the late Philip A. Roach, public ad-
ministrator, and one or two ladies, besides defendant; it
was in a room facing Geary street ; there was in it a bed and
a desk or secretary and some other articles of furniture.
"Witness stated to those present his purpose in being there;
Jefi'ers said he desired the public administrator to know that
the deceased had given the furniture of the rooms to this
lady; witness asked, "Which lady?" Jeffers answered, point-
ing to the defendant, "This lady, Miss Dickason," and in
response to witness Wright's question as to where the papers
of the deceased were she pointed to the desk, and the wit-
ness and his client sealed it.
Geo. S. Irish testified that he was introduced to defendant
by Mr. Blythe as "Miss Dickason, my housekeeper," in Feb-
ruary, 1881, at 6 'Farrell street.
varney's version.
The counsel for the defendant says that he does not think
there is any substantial conflict between the testimony of
the witness Varney and that of the defendant on any material
point.
Varney 's testimony, as taken from the judge's manuscript
notes, is as follows : I was general superintendent for Mr.
Blythe 's Block; first saw defendant in May, 1878, when she
came to me to hire rooms ; she said that Mr, Blythe sent her to
me as he was busy; I gave her the key and inspected the in-
terior of the cottage at 28 Dupont street with her, and made
certain alterations at her request ; I first knew her as Mrs. A.
P. Villette; I did not give up the key until the house was re-
paired; she gave me her name on a card as "A. P. Villette";
I kept the card for a while, but I have been unable to find it ; I
told her the rooms were $25; she made no objection but said
284 Coffey's Probate Decisions^ Vol. 4.
she would take the rooms if I would make the repairs; she
moved in May 17, 1878; she paid the first month's rent and
that is the receipt (A. E. B.'s Exhibit 3) ; that is all in my
handwriting ; I handed it to her at the time ; I knew her by the
name in the receipt, ' * Mrs. A. P. Villette ' ' ; she gave me the
amount, $25; that other receipt (A. E. B.'s Exhibit X3)
was made out by me about the time it was due, June 17,
1878, and presented by me to the lady; I did the collecting
myself at that time and for all that year; she paid me $25;
I knew her at that time by the name "Mrs. A. P. Villette";
same answer as to A. E. B.'s Exhibit Y3, July 15, 1878; the
ink portion is in Mr, Blythe writing, the pencil initials "L.
H. V." under the signature are mine; can't say when it was
paid; the writing on the back, "paid $20," is not mine; I
have a cash-book containing entries of rents collected; here
it is (produces book; counsel Highton examines witness as
to the authenticity of the book; Plaintiff's Exhibit 293) ; this
book is a complete record of all rents received by me during
the period it covers, and entries were made at the times made
and set down in the book, it is full and accurate. (Counsel
asks that witness turn to entry "May 17, 1878" in Plain-
tiff's Exhibit 203 ; objection ; overruled ; exception.) Q, When
did you make that entry? Objection on various grounds:
overruled; exception. A, I generally always entered the
names of the parties on the first of the month; in that case.
May; entered the names of the parties from the receipts fur-
nished by Mr, Blythe, and the date of the month opposite the
name was entered when the rent was paid, and in the columns
on the right of the name the amount paid; without any ref-
erence to that book, and from my independent recollection, I
can say that the rent for July, 1878, was paid in two dif-
ferent portions; in the book it appears in one payment. (A.
E. B.'s Exhibit V3 shown to witness, receipt dated August
15, 1878.) The body of that is in Mr. Blythe 's handwriting;
the signature is his; the initial "L" in pencil under it is
not mine, but the "H, V." looks like mine; the indorsement
in pencil "A. P. Villette, paid August 24, $15.00," is minej
Estate of Blythe. 285
it is entered in the cash-book the same, except as to the date
of the month ; in September, 1878, there is an entry on page
21 of the book, "Sept. 17-20, Mrs. A. P. Villette, $15";
the name was entered on the first of the month ; her rent was
due on the 17th, and so that date was put down, and the
only way in which I can explain the "20" after the verti-
cal curve or dash separating it from "17" was that she paid
the $15 on that day; she left the fore part of September;
knew her then as "Mrs. A. P. Villette"; I saw Mr. Blythe
going into the house 28 Dupont street while it was under-
going alteration prior to May 17, 1878, when I was there
supervising the changes; the defendant, Alice Edith Blythe,
was not there at the time; Mr. Blythe had a rent roll of his
property; he kept it in his safe, room 21, 724yo Market
street, at the time of his death. (Counsel hands to witness
Plaintiff's Exhibit 290, and asks him if he ever saw that be-
fore.) I have seen that book before; that is in Mr. Blythe 's
handwriting; I began to do his collecting July 1, 1875, and
after that he used that book as his rent roll; those entries
on page 43 are in his handwriting; I do not know who made
the marks or checks in the six columns to the right of the
names; never saw them before; the cross (x) marks signified
that the rents so marked were paid by me to him ; his custom
was to mark rents paid to him by or through others with a
little zero or cipher (0). (Plaintiff's Exhibit 290 is offered
in evidence; objection on various grounds; exception. Page
43 of the book, Exhibit 290, is admitted in evidence; motion
to strike out; denied; exception.) Mr. Blythe had other
tenants on Dupont street from May, 1878; witness enum-
erates several ; I have seen that page 49 of same book before,
in October, 1878; the figures in the left-hand columns, and
the names in the middle and the months at the top of the
six right-hand columns are in his writing; the marks under
the months were made by him, as on page 43 ; the line was
drawn through the name "Mrs. A. P. Villette" in October,
1878, the last of the month, when he and I settled; it was
drawn by him; page 63 of Plaintiff's Exhibit 290, I first
saw in December, 1878. (Offered and read in evidence un-
der objection, as with pages 43 and 49.) Mr. Blythe moved
into 6 O'Farrell street in December, 1877, and resided there
286 Coffey's Probate Decisions, Vol. 4.
until fore part of October, 1882 ; on or about the 8th of May,
1878, he had a colored servant, a lady, and a Chinese servant ;
the colored woman's name was Mary Williams; she remained
there until April, 1880; I went to 6 O'Farrell street fre-
quently; sometimes to see about the wood and coal used in
the house and sometimes to see if he wanted anj'thing; most
always went up every night to take up a basket of wood
that I had cut for him in the basement of the block from
odds and ends found around the block; that continued as
long as he lived there; sometimes I would see Mr. Blythe,
sometimes the China boy, and sometimes the colored woman
servant; the coal was taken up by Patrick Mulvihill; I would
take up the kindling after I had done my day's work, be-
tween 6 and 7 o'clock in the evening; during that time never
saw her there during 1878, nor did I see her in his office
in 1878; never saw them together that year on the street or
elsewhere; took kindling in 1879 in the same way; in that
year, in July or August, ascertained that defendant had a
name other than Mrs. Villette. After she left 28 Dupont
street next saw the defendant, Mrs. Alice Edith Blythe, about
the middle of 1879, in room 15, of 7241/2 Market street, sec-
ond floor, and then learned through Mr. Blythe that he had
let Miss Dickason have room 15; that was a day or two be-
fore I saw her there in the room. (Page 65 of Plaintiff's
Exhibit 290 shown to witness; objection; overruled; excep-
tion.) I first saw that in the month of April, 1879; witness
testifies similarly as to pages 43, 49, 63; on page 65 the
figures "15" on the left of the name "Alice Dickason," and
on the right three zeroes, "o" meaning tl^at the tenant paid
directly to Mr. Blji;he, and the figure "15" (under head
July) and the figure "10" the amount of rent; during the
first six months of 1879 had frequent occasion to go to 6
O'Farrell street, and was in his rooms, in the bathroom and
in his bedroom, went there every few days to fix the bath-
room, the plumbing was bad, often went with the plumber,
John T. Gray, to fix the bathroom; never saw the defendant,
Alice Edith, during that time; was there very seldom at
meal times, but I was there sometimes ; I saw no one at table
but Mr. Blythe during that period, and the same in 1878.
(Page 69, Plaintiff's Exhibit 290, shown to witness; objec-
Estate of Blythe. 287
tion; overruled; exception.) I first saw that about October
1, 1879. (Witness answers same as to 43, 49, 63, and 65.
Objections same as to the other pages; overruled; excep-
tion. Page 69 offered and read in evidence, subject to ob-
jection and exception; the particular entry being on the line
where is written "Alice Dickason"; the figures in the seventh
column signify the amount of rent paid. Page 75 of Plain-
tiff's Exhibit 290 shown to witness and witness answers:)
I saw that before, about April, 1880; it was in the posses-
sion of Mr. Blythe and is in his handwriting; all of it; the
facts are the same as in the case of the others. (Page of-
fered and read in evidence subject to objection and excep-
tion. Page 81 of Plaintiff's Exhibit 290 shown to witness.)
I have examined all of the writing on that page; first saw
the page in October, 1880; it is all in his writing except one
name, Mrs. M. W. Hutchinson, and I don't think the names
of the months are in his writing; otherwise the witness testi-
fies the same as to the other pages. (Page 81 offered and
read in evidence; objection; overruled; exception.) First
saw page 93 about April, 1881 ; it is all in his writing ; same
answer as to similar previous questions. (Page 93 offered
and read in evidence under objections and exceptions. Same
question as to page 105.) First saw that in October, 1881.
(Offered and read in evidence; same objections and excep-
tions. Pages 111, 119, identified in the same manner and
admitted in evidence. Plaintiff's Exhibit 291, shown to wit-
ness.) I saw that book first on Sunday, April 1, 1883, in
my room 22, at 7241/^ Market street; it was in Mr. Blythe 's
possession; he presented the book to me and asked me to
look it over and see if the names of the tenants were cor-
rect ; the handwriting is that of Mr. Blythe — all of it ; it was
then in its present condition ; that was his rent roll begin-
ning from the first of April, 1883. (Book offered in evi-
dence; objection on general and specific grounds; overruled;
exception; admitted in evidence.) I once had a conversa-
tion with the defendant, Alice Edith Blythe, about her leav-
ing 28 Dupont street, at the time of leaving, when she paid
fhe last rent; she said the rent was too high and she would
leave on that account ; I have known her by three names :
"Mrs. Villette," "Mrs. Peters," and "Miss Alice Dickason,"
288 Coffey's Probate Decisions, Vol. 4.
about the middle of 1879, in July; I addressed her by name
other than "Mrs. Villette"; had a conversation with Mr.
Blythe in room 20 of 7241/2 Market street, in July, 1879,
and he said to me that he had let the room 15 to Miss Alice
Dickason; from 1879 up to the middle of June, 1882, I al-
ways knew her 'as Miss "Alice Edith Dickason"; from that
time until the death of Mr. Blythe knew her as "Cousin
Alice" and "Miss Dickason"; never knew her during that
time by any other name; Mr. Blythe occupied the third floor
of 6 O'Farrell street, and he hired out to others the fourth
floor; I collected the rents; some of the names of the tenants
were Tasch, Weil, Hoffman, G. P. Jessup, Webster, Mrs.
Staples, Lightner, Porter, J. H. Woods, A. Goertz; first saw
the defendant, Alice Edith Blythe, in the latter part of
April or the first part of May, 1880; do not remember what
occurred; after that saw her most every time I called there;
I did some work there; put up some clothes-hooks in a little
room off the hall; she asked me if I would put up some
hooks to hang her clothes on ; there was a three-quarter bed
in the room ; the room was about eight by ten feet ; after-
ward they took down the bed and made a storeroom of it;
one morning in July or August, 1880, Mr. Blythe came over
to the office and said he wanted me to take a bed from the
fourth floor and put it in what was called the "Jessup"
room, and that Miss Dickason was going to occupy that room ;
this was on the extreme west end. of the building, and Mr.
Blythe 's room on the extreme east; I went over with Thomas
Dunn, and we took the bed from the upper floor and put it
in the Jessup room in place of another one; she said noth-
ing except that she was very much pleased that she was go-
ing to have such a pleasant room ; the room had one single
bay-window; the room was about twelve by fourteen; there
were two entrances, one was by folding-doors opening into
another room, used for a library room; I paid rent for my
room at 7241/^ Market street at the rate of $12.50 per month
up to the time of Mr. Blythe 's death; I saw the defendant
at Mr. Blythe 's office in 1879; I remember Mr. Blythe 's ill-
ness in 1882 ; the nature of his illness was such as to pre-
vent his coming out to attend business until some time in
July; I frequently visited him during his illness; he was then
Estate of Blythe. 289
at 6 O'Farrell street, where I also saw the defendant, Mrs.
Blythe. (Book marked Plaintiff's Exhibit 294 shown to wit-
ness.) The entries in that book were made by me; it is my
account-book, showing my accounts with Thomas H. Blythe ;
on page 139 are entries made by me, among other items one
of money paid to defendant, "1882, June 7, Miss Dickason,
for Mr. Blythe, $10." I paid it to the lady defendant here,
Mrs. Alice Edith Blythe, she said Mr. Blythe had sent her
over for $10 and I gave it to her, and in the same way gave
her $10 again, both times it was on the sidewalk in front
of the "City of Paris" building, the second time was June
16, 1882; on one or the other of those times she asked me to
take a walk with her, as Mr. Blythe had requested her to
ask me to take a walk with her that evening, and I agreed
to do so after my work was over ; she wanted to go down in
front of the Russ House to see the electric lights in front
of that hotel, that was the object she said of her going out,
and we went down there ; and then we took a walk and
finally we went into the "Ichi Ban," on Geary street, and
were looking at some rugs and skins, bear and lion skins,
and other wares in that store ; she said that Mr. Blythe was
going to build a house in Mexico, and he would have no car-
pets but cover the floor with skins and rugs; after leaving
the store she told me that the reason why she took the walk
was that Mr. Blythe was going to adopt her as his niece, and
he wanted her to tell me and Thomas Dunn, the watchman ;
we addressed her -as "Cousin Alice"; heard Mr. Blythe in-
troduce her to Dr. S. S. Kahn as his niece; the doctor was
attending me when I had broken my legs; Mr. Blythe said,
"Dr. Kahn, this is my niece. Miss Alice Dickason"; Mrs.
Blythe was in the room when Dr. Kahn came into my room ;
Mr. Blythe had a settlement on March 25, 1883; I know that
Mr. Blythe went to the Colorado river on November 5, 1882,
because I went down to the boat with him; it was Sunday,
two days before election; Thomas Dunn also went with us
and helped to pack Mr. Blythe 's traps; Mr. Blythe returned
on the twenty-second day of December, 1882 ; I received that
card (Plaintiff's Exhibit 284) on January 1, 1883, and acted
on it, went over to 27 Geary street and had a glass of egg-
nog, found there Mr. and Mrs. Blythe, whom I then knew
Prob. Dec, Vol. IV — 19
290 Coffey's Probate Decisions, Vol. 4.
as "Alice Dickason," Mr. Blythe occupied the whole of the
top floor; I had something to do with fitting it up for oc-
cupancy; had a window cut out for his bedroom, room 19,
which had no light except through the folding-doors, which
I took out by his direction to make the opening larger; he
had his desk in^room 20, the front room; his rooms were on
the easterly side of the house; I also fixed up the rooms 21
and 22 on the westerly side, and made similar alterations;
the other rooms were not altered; there were four bedrooms
on the floor, 19, 22, 23 and 27; I was in room 23 once in
1876 ; was in that room in September, 1882 ; I was taking
off the blinds, and after painting them put them on again;
had some conversations with Mrs. Blythe while Mr. Blythe
was away in Mexico in the fall of 1882; she pointed out to
me the room she occupied, room 23; Mr. Blythe 's bedroom
was 19 opening into room 20, and 21 opened into 20; there
were nine rooms on the floor; I broke the small bones on
both of my feet below the ankle joint. (Witness describes
how it occurred.) I was confined in my room at 7241/^
Market street; Dr. Kahn attended me and was assisted by
Dr. Rosenstirn; had a day nurse, Mary O'Donnell, and a
night male nurse whose name I do not recall; on the door of
the studio the defendant had a name "A. Dickason"; when
Mr. Blythe and I made out our settlement he would read
over the names aloud twice and we would check them off;
when he came to my name he would say "Yourself" instead
of *'L. H. Varney," when he came to the name of the de-
fendant, Mrs. Blythe, he read aloud "A. Dickason" and he
M'ould say, "paid me," and when the list was finished he
would begin again and go over the names aloud, and I would
call out the amounts paid; I had conversations with the de-
ceased, Mr. Blythe, about the defendant, Mrs. Blythe; once
in the year 1873, and as late as 1882, at the times of our
settlements at different times; I know L. J. Gutierrez; he
occupied rooms at 11 Geary street in the Blythe block; I
do not know whether he was paying rent in 1883 ; the reason
why the names of persons are left blank in some of the spaces
in the seventh column of Plaintiff's Exhibit 291 I do not
know; ]\Ir. Blythe left for Mexico the second time on March
1, 1883, and returned on the 13th of March; remember the
Estate of Blythe. 291
time of his death; when I went to the house on the Saturday
after his death I was accompanied by General James Coey;
he assisted me upstairs, I being lame and on crutches; saw
the defendant there; she was lying on the bed; she said
she was very sorry he died. (Witness relates what she said.)
I saw the remains that day; I was in the rooms fifteen or
twenty minutes; the defendant, Mrs. Blythe, came to my
room on the Monday following and said to me, '*I am Mrs.
Blythe"; I said, "Alice, since when have you been Mrs.
Blythe? This is the first time I ever heard you called
Mrs. Blythe"; she said, **You know how I have been living
with Mr. Blythe, and I expect you to help me prove my
claim," and I replied, "I know nothing about it"; I had
some conversation with her upon one occasion shortly before
he died, in my room; no one was present; she came up to me
to bring my breakfast; she said she thought she would have
to leave him because on the morning at breakfast he got mad
and threw all the things on the breakfast table on the floor;
that she had bought some things on credit while he was away
and the bill from Halpine at 704-706 Market street was
brought in and laid upon his plate and when he looked upon
it he became angry; I have stated all of the conversation
that I think of; during the time that Mr. Blythe was away
I paid her money about every week by the name of "Alice
Dickason" or "Mrs. Dickason." In October, 1882, on the
fourth floor of 27 Geary street Mr. Blythe introduced de-
fendant to a man whose name I do not recall as his "niece,
Miss Alice Dickason."
DR. KAHN's introduction.
Dr. Samuel S. Kahn, who attended Varney in his sickness,
after the accident happened to him at room 22, 7241/2 Market
street, testifies that he saw defendant in that room and was
introduced to her by Mr. Blythe, who said, "Dr. Kahn, my
niece, Miss Alice Dickason"; she bowed, but said nothing;
at that time the witness was present about fifteen minutes;
on another occasion in the hall outside of Varney 's room, in
the morning two or three days afterward, the witness met
Blythe in the hall conversing with this lad.y, and as was
witness' custom he stopped to tell Mr. Blythe how Mr. Var-
292 Coffey's Probate Decisions, Vol. 4.
ney was getting along, and Blythe again said, "Dr. Kahn,
Miss Dickason ' ' ; about ten days afterward another compli-
cation was added to Varney's injury by pneumonia attack-
ing him, and witness told Blythe of the gravity of the illness
and the necessity^of the nourishment, and Blythe said, "That
is all right; my niece attends to that."
THE FOREGOING A FAIR VIEW OP THE CASE.
The court has striven to give a fair view of the case as
presented in evidence for and against the defendant ; if some
witnesses have not been specificially treated, it is because
their testimony was not essential to inform or instruct the
judgment of the court; but I think full and faithful atten-
tion has been given to all the points of importance.
Counsel for claimant contends that upon this body of tes-
timony, tested by the standard of reasonableness, which the
court is bound to apply, the preponderance is indisputably in
her favor, and insists that the evidence of defendant herself,
of sixty-four witnesses, and of the fact of the consent mar-
riage itself, and of Blythe 's own declarations, must deter-
mine the issue in favor of the claimant. If the court assume
the existence of the agreement and take the sixty-four wit-
nesses, as counsel has enumerated and classified them, the
conclusion is inevitable — she was the wife, she is the widow,
established under section 55 of the Civil Code of California.
THE RULE OF EVIDENCE.
If mere numbers are to prevail, the case of defendant is
as 64 to 33 — the number of witnesses which the counsel said
have testified orally against her, but the rules of evidence
favor quality rather than quantity, even assuming numerical
superiority in this case. The rule as given by the Code of
Civil Procedure, section 2001, is that the court, sitting as a
jury, is not bound to decide in conformity with the declara-
tions of any number of witnesses, which do not produce con-
viction, against a less number or against a presumption or
other evidence satisfying the mind; and the same section of
the code also prescribes that in civil cases the affirmative of
the issue must be proved, and when the evidence is contradic-
tory the decision must be made according to the prepon-
derance of evidence.
Estate of Blythe. 293
Counsel says that decedent's first idea may have been that
of a liaison, but he was not accustomed to have his purposes
thwarted, nor even postponed for a time; he for the first
time met a woman who was not to be easily overcome, but
who resisted his advances until they came in the honorable
guise of matrimony.
the probability of the story of the consent marriage.
Now we come to the consent formulated in the cottage at
28 Dupont street, May 19, 1878.
Is it probable that the agreement or consent alleged by her
was ever undertaken? Was the decedent then in a situation
to engage in such a contract?
The defendant's counsel says that his proposition is that so
far as decedent's agreement with the defendant is concerned,
he was justified in considering himself an unmarried man, as
the result turned out in the Nellie Firmin litigation, and
free to undertake a matrimonial alliance, for before that time
an application for alimony was denied in the nineteenth judi-
cial district court by his honor, Judge Wheeler, and subse-
quently the decree was entered that there had never been a
marriage.
Counsel says that at the time of the defendant's first in-
terview with decedent she was of absolutely stainless charac-
ter, a young woman of twenty-three years of age, who had,
it is true, been knocked about this western world, but who
had preserved a spotless name: she was not without experi-
ence, but she had shown herself able to protect herself against
improper advances; she was ambitious, as her endeavors to
acquire an education to make herself self-supporting proved ;
she was of a domestic turn, unusually so, as her subsequent
life demonstrated ; she had an ambition to secure a perma-
nent home, and her whole life behind her forced her to de-
sire it; it was natural that she should have acted as she did.
How was it with Blythe at that time? Counsel for defend-
ant thinks he may have been contemplating an alliance with
the defendant to extricate himself from the impending diffi-
culties with Nellie Firmin. How does this position of coun-
sel consort with the assumption that the denial of alimony
presaged a decree against Nellie Firmin, and consequently
there were no practical difficulties on that score in his path?
294 Coffey's Probate Decisions, Vol. 4.
But counsel says her story is presumptively true ; it is not
capable of direct contradiction; it is confirmed by all the
circumstances of the case; it is consistent with all the con-
duct and declarations of the decedent; and it is not contra-
dieted by any fact in proof in this case. All of these are
strong statements and uttered with the force of conviction,
and the good faith of counsel is not to be questioned. Is
the story of the defendant credible or probable as to what
took place at the time of the consent marriage sworn to by
her? Is it consistent with the circumstances of this case, or
corroborated by the facts in proof? As to the situation of
the decedent, the circumstances surrounding him at that time
were such as to make it imprudent for him to engage in
such a contract; he was then in the midst of the Nellie Fir-
min litigation, for notwithstanding the denial of the appli-
cation for alimony, he could not foretell the event of such a
suit. There is no evidence here that he was more highly
gifted than other mortals with respect to the course of law
or the current of justice in human tribunals, and it is in the
highest degree improbable that he would precipitate himself
into another alliance before he had emerged from the Fir-
min trouble, which might possibly have terminated in a deci-
sion against him and thus make himself a bigamist. We
have seen that he said to Dr. de Groot that his experience
with Nellie Firmin taught him caution in contracting alli-
ances with other women. Why should he in the full tide of
that experience contract such an alliance as is here alleged
with defendant?
THE alleged betrothal AND MARRIAGE.
Her story of the betrothal and marriage is very interest-
ing, but it is entirely dependent upon her own testimony.
It is incumbent on the defendant to prove the fact of mar-
riage on the 19th of May, 1878; they were either married on
that day or they were never married; and this fact, the con-
sent marriage, is wholly dependent upon the evidence of the
defendant. It is remarkable that a person with the princi-
ples she professed and the determination to be involved in
no entangling alliance capable of being misinterpreted, who
wanted it to be a matter of life and death, who told him if
Estate of Blythe. 295
she should accept him she wanted some ceremony or contract
made; wanted the matter to be permanently fixed, if it were
to be done privately or secretly, because she had had a great
deal of trouble in her life, and she wanted it so arranged
that it would be a matter of life or death forever, it is re-
markable that in such circumstances she should not have
insisted on some authentic and express evidence of so solemn
a compact. Her counsel says she did not yield without a
struggle and a contract. Where is the contract? She was
a woman of experience in the world, had been married and
divorced, and married by a minister of a denominational
church; was fully alive to the situation in which she had
either placed herself designedly or found herself placed; she
had ample knowledge of men, and keen sense of the im-
portance of preserving in permanent and indelible form the
proof of marital relations; she says herself she wanted it
fixed for life by "ceremony" or "contract." What was the
ceremony? Where is the contract? She professed belief in
the creed of a church that regards marriage as an institu-
tion of divine ordinance, and yet she accepted this ' ' formula ' '
dictated by Blythe as lawful and binding as if they M'ent to
church. If she were in earnest in wanting a ceremony or
contract, why not put it in writing? Was such a formula
to possess the sanction and wear the honorable guise of matri-
mony to this young woman who resisted the less worthy
advances of a man who was not accustomed to have his pur-
poses thwarted, nor even postponed for a time? Was it
natural that she should have acted as she did in consenting
to such a marriage?
WHAT DEFENDANT SHOULD HAVE DEMANDED AS HER DUE.
At the time of this transaction, if she were, as her counsel
claims, "a woman who was not to be easily overcome," she
could and should have demanded and insisted upon some
sort of authentication of the fact of so serious consequence
to herself; but she did not. Her own evidence shows her
intense appreciation of the necessity of having the matter
so consummated that the tie binding them should be indis-
soluble, and yet she was content with a "formula" the proof
of which is impossible except by her own bare statement.
296 Coffey's Probate Decisions, Vol. 4.
It is said that her testimony must be taken as true because it
is uncontradicted; manifestly in its nature it does not admit
of contradiction by direct evidence, yet is it not contradicted
by reason of its inherent improbability and the antecedent
and subsequent facts and circumstances as related even in
her own story as told in her pleading and proofs?
Her counsel says a man cannot use a woman for five
years, the best years of her life, and arrange matters that
after his death she shall be relegated to the condition of
mistress; the law does not allow this. At the same time
counsel strenuously insists that her claim of wifehood is con-
firmed by all the circumstances of the case, and is consistent
with all the conduct and declarations of decedent.
WHAT IS THE LAW OF THIS CASE ?
What does the law allow in cases of this character? What
is the law of this case?
So far as the immediate interest involved is concerned, al-
though important, it matters little compared with the inter-
ests of organized society. Marriage is more than a contract ;
it is a status ; an institution of society and its foundation ;
it does not come from society, but contrariwise; it is the
parent of society, and it is supremely important that its
stability shall be secured ; its contraction must be surrounded
with safeguards and its sanctity upheld. Every solemniza-
tion of marriage must be in the face of the public; and the
statute says where there is no solemnization there must be
consent followed by mutual assumption of marital rights,
duties or obligations : Civ. Code, sec. 55.
consent THE PERVADING PRINCIPLE OF THE LAW.
The defendant here claims marriage by contract or con-
sent, folloAved by mutual assumption under this section. Con-
sent is the pervading principle of the law; marriage 'is
derived from consent duly authenticated, independent of the
conjunctio corporum ; publicity is the publication of that con-
sent; and that consent must go right up to the moment of
their taking up life as husband and wife; it must coexist
with the assumption of marital rights, duties and obligations :
Kelly on French Law of Marriage j Carmichael v. State, 12
Ohio St. 560.
Estate of Blythe. 297
the law of california solely dominant.
This case must be governed by the law of California and
by that alone, and however interesting may be the discussion
of the origin of the institution of marriage, it is foreign to
the purpose except to explain the law as it stood when our
statute was framed and adopted. We are aided but little
(as was said by Mr. Justice McFarland in the first Sharon
appeal, 75 Cal. 69, 16 Pac. 345) in determining this ques-
tion by inquiring what the law of England was upon the
subject fifty or a hundred years ago. It is the law here and
now that we are to deal with, and the code treats of marriage
fully and establishes the law upon that subject ; and the pro-
visions of that law presently considered are as follows:
WHAT CONSTITUTES MARRIAGE?
**Sec. 55. Marriage is a personal relation arising out of a
civil contract, to which the consent of the parties capable of
making it is necessary. Consent alone will not constitute
marriage; it must be followed by a solemnization, or by a
mutual assumption of marital rights, duties or obligations.'^
MINORS CAPABLE OF CONTRACTING MARRIAGE.
*'Sec. 56. Any unmarried male of the age of eighteen
years or upwards, and any unmarried female of the age of
fifteen years or upwards, and not otherwise disqualified, are
capable of consenting to and consummating marriage."
MARRIAGE, HOW MANIFESTED AND PROVED.
"Sec. 57. Consent to and subsequent consummation of
marriage may be manifested in any form and may be proved
under the same general rules of evidence as facts in other
cases."
Consent must be followed by assumption : ' ' follow ' ' means
here "succeed," "as day succeeds to day and night to night,"
as "wave follows wave": Webster's Dictionary.
Such an assumption should be immediate or at least within
a reasonable time.
COHABITATION NECESSARY.
There cannot be an assumption of marital rights without
cohabitation. What is cohabitation? That a marriage may
298 Coffey's Probate Decisions, Vol. 4.
be inferred from cohabitation seems to be the settled law of
most countries. Mr. Justice Thornton quotes approvingly
the language of Fraser in his work on Husband and Wife,
who sa3^s in the opening sentence of chapter eight of the
first volume: "If a man and woman cohabit together as hus-
band and wife, and are held and reputed by their neighbors
and friends as married persons, they are presumed to have
entered into marriage." The learned author adds by way
of explanation: "Cohabitation and repute do not make mar-
riage; they are merely items of evidence from which it may
be inferred that a marriage had been entered into." In the
case at bar there is no evidence of repute and none was of-
fered: White V. White, 82 Cal. 430, 23 Pac. 276, 7 L. E. A.
799.
WHAT IS COHABITATION?
Cohabitation is the act or state of dwelling together, or in
the same place with another; the state of living together as
, man and wife: Webster's Dictionary; Bouvier's Law Diction-
ary; Worcester's Dictionary.
It must be at bed and board as husband and wife. Con-
stancy of dwelling together is the chief element of cohabita-
tion. It is therefore totally incompatible with the notion of
matrimonial cohabitation, if the parties were to live in sepa-
rate houses; and as it is one of the most obvious and best
understood consequences of marriage that the husband com-
municates to his wife his station in society, so where he asso-
ciates with friends and acquaintances to whom he never
speaks of his wife, it is not cohabitation or the behaving to
each other as husband and wife: Fraser Husband and Wife,
401.
LIVING TOGETHER AS HUSBAND AND WIFE.
Cohabitation, which is evidence of the assumption of
marital rights, duties or obligations, must be a "living to-
gether as husband and wife." At common law and under
statutes authorizing marriage by consent without formal cere-
mony, if the parties agree to take each other for husband and
wife, and from that time live together professedly in that
relation, proof of these facts is held to be sufficient to con-
stitute marriage. Certainly nothing less than this can be
Estate op Blythe. 299
held to be sufficient under the latter clause of section 55 of
the Civil Code. The proof of the contract is not enough,
even if it were proved in this case. There must be evidence
to show that they assumed the relations of husband and wife,
which calls for the same degree of proof, if cohabitation be
depended upon, as was required at common law to establish
the marriage: Sharon v. Sharon, 79 Cal. 699, 22 Pac. 26, 131.
The mere fact that parties who have agreed to become hus-
band and wife thereafter have sexual intercourse is not suffi-
cient of itself to show a consummation of the marriage, or
that they have assumed toward each other marital rights,
duties, and obligations within the meaning of the section :
79 Cal. 670, 22 Pac. 26, 131.
In this case the parties did not live together at all, accord-
ing to the evidence as it is presented in the foregoing pages;
they had separate habitations for two years; she never as-
sumed his name; and even when in the same habitation they
did not assume marital rights, duties, or obligations, as those
words have received judicial definition and interpretation ;
they did not hold forth to the world by conduct, demeanor,
and habit that they were man and wife : 79 Cal. 663-668, 22
Pac. 26, 131.
There can be no stronger nor more apposite authority than
the one last cited; upon the question of assumption, it fits
to the facts of this case and in so far must be considered as
conclusive in and upon this court.
It is claimed in the case at bar that the consent-marriage
took place on May 19, 1878, and that the assumption of the
marital relations was undertaken as soon as practicable; to
some extent, the counsel for claimant says, it was immediate ;
on the same evening they assumed such relations. He ad-
mits that under the Sharon case secret intercourse is inade-
quate to establish marriage, but asserts that it is unnecessary
that every conceivable element should coexist. Consent and
assumption are sufficient, and he says that there are no au-
thorities cited that the assumption must be immediate, but
as a matter of fact counsel claims that in this case the as-
sumption was immediate; the assumption here was progres-
sive and scarcely interrupted.
300 Coffey's Probate Decisions, Vol. 4.
consent and consummation should be consequent and
complete.
As to the meaning and effect of the words employed in the
statute, section 55, Civil Code, the court has already cited
from the standard lexicons, and it is clear that consent and
consummation should be consequent and complete. The
counsel in his opening statement did not claim that the mar-
riage was "full and complete," until they began to live
together in April, 1880, at 6 O'Farrell street, and in his clos-
ing argument speaks of a "progressive assumption," which
is a term, so far as the court's research has extended, not
found in the law reports or text-writers, and certainly not in
the statute, where it is "assumption" pure and simple and
unqualified save by the element of mutuality.
WHAT THE EVIDENCE SHOWS.
In the opinion of this court the length of time between
May 19, 1878, and the time of defendant's taking up her
permanent abode at 6 O'Farrell street, in 1880, was not suf-
ficiently close to apply the alleged consent of May 19, 1878,
to the act of April, 1880, for there were two years inter-
mediate the two events, and, therefore, the marriage not hav-
ing taken place in May, 1878, could not have been consum-
mated in May, 1880; the alleged contract of May, 1878, was
in abeyance and must be held to have been abandoned be-
cause not followed by assumption. In the opinion of the
court this is the true expression, intent, and meaning of the
section upon which this claim is based.
The evidence shows, beyond all doubt, that during that
important interval of time she was not known as his wife, or
by the name of decedent Blythe, and that she was known
then and thereafter by their neighbors and friends by an-
other name, and that she allowed herself to be so called,
not asserting what she claims now to have been her true
name and status, and in this connection might be applied
the rule by Mr. Justice Fox in White v. White, 82 Cal. 453,
23 Pac. 276, 7 L. R. A. 799, "whenever a party has by his
own act, declaration or omission, intentionally and deliber-
ately led another to believe a particular thing true, and to
act upon such belief, he cannot, in any litigation arising out
Estate of Blythe. 301
of such act, declaration or omission, be permitted to falsify
it." This is a conclusive presumption: Code Civ. Proc, sec.
1962.
In this case, as appears from the references to the evidence
hereinbefore made, there are innumerable admissions in writ-
ing which show that defendant never considered herself as
his wife until after the decease of Thomas H. Blythe, and
there are numberless oral statements proceeding from • her
in absolute accord with her written admissions.
contradictions irreconcilable.
The contradictions in the case of this claimant are irrecon-
cilable, and cannot be reconciled on the basis that decedent
and defendant were husband and wife. She has not affirma-
tively established her case, much less sustained it by a pre-
ponderance of evidence against the mass of testimony in
opposition to her claim; her own evidence does not har-
monize with her pleading, her witnesses fail to substantiate
her statements in material particulars, and some of them are
so palpably untruthful that the marvel is that anyone has
had the temerity to trade upon their testimony. Of the many
significant incidents that have been testified to in this case,
some may have escaped the attention of the court and thus
passed without comment, such as the mutilation of Windel's
book accounts of the transactions with the defendant, where
the page containing her name as Dickason was torn out by
her, showing that she was not known by any other name un-
til after the death of decedent, but enough has been estab-
lished to cause her claim to be rejected as not supported by
a preponderance of evidence.
A CASE without LEGAL MERIT — NEITHER WIFE NOR WIDOW.
This may be a case of hardship, but with that considera-
tion this court cannot be concerned. It is a case without
legal merit; the court can only regard the facts in evidence
and administer the law as it is found, and so holding the de-
termination must be and it is against the claim presented
and prosecuted by the defendant claimant. She was not the
wife and she is not the widow of the decedent, Thomas H.
Blythe.
302 Coffey's Probate Decisions, Vol. 4.
In the Matter of the Estate op THOMAS H. BLYTHE,
Deceased.
(CASE OF "WILLIAMS HEIES.")
(Oral Decision July 31, 1890.)
Evidence. — Entries of Births, Deaths and Marriages in a Family Bihle
are competent evidence, though such record does not contain every ele-
ment in the history of each member of the family necessary to make it
perfect.
Evidence. — Experts in Determining the Authenticity of a Writing
never go beyond an inspection; they do not do as other people ordi-
narily do — that is, determine the handwriting, not only by inspection
of the document itself, but with reference to concomitant circum-
stances.
Question of Heirship. — The Evidence in this Case reviewed and the
court concludes that the next of kin are here present in the person of
the Williams claimants, and so finds and determines.
Edward R. Taylor, attorney appointed by the court for
certain minors named Williams, claiming to be heirs collateral.
John R. Jarboe, Ralph C. Harrison, W. S. Goodfellow, and
Harvey S. Brown, for adult Williams claimants.
who was " THOMAS H. BLYTHEf"
COFFEY, J. When was Thomas H. Blythe born, and
when was Thomas Williams born? Nothing could be clearer
from the evidence than the birthday and birth year of the
decedent. It is true that he made several contradictory dec-
larations about his birthplace, but the proof is that he was
born at Mold, on the 30th of July, 1822; and the evidence
in this case, as traced in the deposition of Sarah Roberts and
others, gives an account of his childhood and youth up to
the time of his leaving for California. He went to school at
Mold and received an education better than others of his
family; went into a draper's and grocer's shop at Ruthen,
and then into a draper's shop at Denbigh, and after that into
a clothier's shop at Liverpool, in which situations he obtained
that instruction in business which he afterward turned to
account in California. The testimony of William Williams,
solicitor, Liverpool, as to the reason of Thomas Williams
changing his name to Thomas Henry Blythe, because of busi-
ness difficulties in which he became involved as a builder,
is reasonable and credible ; and the testimony of John Breeze
Estate op Blythe. 303
Roberts, although he was not called in behalf of the "Williams
claimants, but produced by their opponents, is yet important
in corroboration of William Williams. John Breeze Roberts
entered the employ of Thomas Williams in March, 1844, as a
milk salesman in the Cheshire Dairy ; and in this case we find
the identical bill of sale from Thomas Williams to John
Breeze Roberts, corroborating in this important point the
testimony of William Williams with respect to that transac-
tion. I think, from the evidence, that Thomas H. Blythe,
or Williams, is traced from his cradle up to the time he was
on the deck of the ship "Antelope," bound for America, in
February, 1849.
BLYTHE 'S BUSINESS CAPACITY.
When I was considering the testimony of Andrew M. Davis
this morning, counsel may have noticed that I paused when
I came to Mr. Davis' sage remark concerning the boast that
Mr. Blythe made as to the insignificance of his estate in San
Francisco compared with his millions of acres in Mexico, and
his speculative enterprises in that country. On Blythe point-
ing to the map of his Mexican possessions, Davis remarked
that he hoped that the map would not cost Blythe the estate
in San Francisco, shrewdly intimating that the Mexican ven-
tures would wreck the entire estate, if not arrested (as they
were subsequently by the court in course of probate adminis-
tration). It is a case in point with this conversation that
it was a singular characteristic of Mr. Blythe that he never
engaged in a business enterprise which did not turn out dis-
astrously — as a builder at Birkenhead he failed, and so he
did here in various speculations in California; and his lack
of business capacity as a manager of his own property is
illustrated by the improvident lease he made with the Gate-
leys, and his mortgage of his San Francisco property to carry
on the Mexican speculation already alluded to. In that re-
spect, in a business aspect, except for fortuitous acquirement
of propert}^ on Market street, his life here was consistent
with his prior life in the old country. His life here is well
known up to the time he went to England in July, 1862. It
is unnecessary to go over it again. The year 1863 is a most
important one in this case, and the history of that year is
very significant, particularly his visit to Mold. The opening
304 Coffey's Probate Decisions, Vol. 4.
statement of Mr. Goodfellow, one of the counsel for the Will-
iams claimants, is borne out by the testimony in the case,
except in one item of it.
THE FAMILY BIBLE.
The whole ^atement was supported by the evidence with
one exception, and that was a slight discrepancy or disparity
which was commented on with great stress and force by op-
posing counsel. Mr. Goodfellow announced that they had
here a family Bible which, of course, was evidence of the
highest dignity — a family record of the births, deaths, and
marriages. There was a slight discrepancy between state-
ment and proof, which Mr. Goodfellow in his argument en-
deavored unnecessarily to reconcile. It was a family record,
even though it did not contain every element in the history
of each member of the family which was necessary to con-
stitute it a perfect one.
THE PARCHMENT DEED,
It was on the visit to Mold, in 1863, that the parchment
deed from Thomas to his brother Charles Williams was exe-
cuted, the signature, Thomas Williams, being in the hand-
writing of Blythe. It was unnecessary to prove that by
expert evidence; it is one of those things which proves itself,
notwithstanding it was shown that people can write on the spot
a letter made to order, and manuscripts that will defy ordi-
nary detection as false. That has been shown. Of course Mr.
Gumpel did demonstrate that. Mr. Gumpel can demonstrate
anything in the way of handwriting. The circumstances of
that deed are entirely consistent with the deed — besides the
fact proved that it was the signature and the act of Thomas
H. Blythe.
The letters which have been introduced on behalf of the
Williams claimants are beyond any question, in the judgment
of the court, genuine; and the court's judgment at this time,
after great reflection and listening to all the evidence, and
after as minute an examination as the experts even have
given to them, without possessing their capacity of simula-
tion, verifies the very first impression that these documents
were genuine — that is, upon inspection, when originally pro-
duced in courL The experts in determining the authenticity
Estate of Blythe. 305
of a writing never go beyond an inspection. An expert does
not do as other people do, or as ordinary people do: deter-
mine the handwriting not only by inspection of the document
itself, but with reference to concomitant circumstances; and
if these writings did not contain internal evidence of their
own genuineness, these circumstances would establish their
authenticity.
THE PARIS LETTER,
The Paris letter to Kyffin Jones, October 19, 1872 ; Exhibit
W. W. No. 2, London, August 26, 1863; Exhibit C. J. D.
No. 2, London, August 26, 18G3, ''P. S. My address in Paris
is intended for yourself only. T. W." That is a very im-
portant factor in connection with other matters, and the
court has not attempted to exaggerate the importance of it.
Exhibit C. J. D. No. 4, Exeter Hall Hotel, Strand, Loudon,
Wednesday, 11 A. M., "Please address as above, and consider
the address as strictly confidential, and in future, should you
permit it, I shall request all my friends in Liverpool and
vicinity to direct any communication they might have for
me to your care, to be forwarded to me at your request.
Thomas H. Williams." That, taken in connection with the
banker's testimony, shows that Thomas H. Blythe was there
at that time, and that he kept that bank account at Monroe's
Bank ; the bookkeeper proves to a demonstration that at that
very time this man Thomas Williams was visiting Paris and
holding himself out there as Thomas H. Blythe.
THE VISIT TO CHESTER.
The visit to Chester of August, 1870, is important. The
testimony of Thomas Williams, one of the claimants, must
be taken as probable. His testimony seems probable in con-
nection with that visit to Chester in August, 1870 (see page
368, volume 4, judge's manuscript notes), and the Exhibit
W. W. No. 4, the Chicago letter, which is a most important
contribution to the literature in this case, and is in itself
sufficient to substantiate the allegation of the claim of the
Williams claimants.
THE CHICAGO LETTER.
This Chicago letter is indubitably authentic. This letter
on its face, at the very moment I saw it, apart from extrane-
Prob. Dec, Vol. IV— 20
306 Coffey's Pkobate Decisions, Vol. 4.
ous circumstances, seemed to me to be a genuine emanation.
It was received by the witness, Thomas Williams, claimant,
through the postoffice, September 19, 1870. Now, we have
the letter, Williams' Exhibit W. W. No. 5, Thomas Williams
to John Williams, no date, blue note paper, and W. W. No.
6, envelope superscribed "John S. Williams," in Blythe's
handwriting, the same as in the letter, ink the same. There
was a very ingenious endeavor on the part of counsel, Mr.
Towle, to show that the superscription and handwriting in
the letter were different. Nobody but Mr. Towle, and per-
haps Mr. Gumpel, could see the difference. The court did
not.
THE THIRD VISIT OF BLYTHE TO EUROPE,
Then we have the third visit of Blythe to Europe in 1872,
in connection with which there is important evidence. W.
W. No. 7, letter to "Dear Charles," Liverpool, no date,
written on Washington Hotel paper, was written on a por-
tion of a whole sheet, a part of which was devoted to another
letter. Blythe was at Mold from September 5 to 9, 1872,
with the exception of a flying visit to Chester. W. W, No. 8,
agreement to assign by Sarah Roberts, filled in with writing
claimed to be in Blythe's hand, unexecuted, and Exhibit W.
W. No. 9, application for annuity, filled in by Williams, or
Blythe, were done on this third visit. That was beyond
question given by Thomas H. Bh'the in the name of Will-
iams ; that was when he was masquerading, so to speak, in
his true name. The testimony of Thomas Williams, claim-
ant, as to the relative height of himself and his uncle Thomas,
at the time of the latter 's visit, August, 1872, was corrobo-
rated afterward in the course of this trial by the safe deposit
book. The letter W. W. No. 7, Liverpool, Monday, "My
dear Charles," is a letter which, when compared with the
letter to Dr. S. F. Elliott, Williams Exhibit 62, Liverpool
August 23, 1872 (Washington Hotel letter) appears to have
been written on the same hotel paper as the latter. There
was an endeavor here, and it was partly successful, to show
that you can manufacture a paper or writing to order. Of
course, that can be done; but the letters upon comparison
will speak for themselves. These things cannot be done so
deftly that an imposition of that kind, in connection with
the rest of it, can be practiced successfully. If this be a
Estate op Blythe. 307
fraud, of course all of these are parts of one stupendous whole.
If so, they are executed with almost superhuman ability and
skill. In the deposition of Deacon, Griffith of Mold, and of
Annie Hughes Morris, sister of Kyffin Jones, are contained
much matter of importance. The deposition of the deacon
goes to this remarkable circumstance, that a stranger from
America should contribute a larger coin that was customary
to be put in the box ; and Annie Hughes Morris relates a
conversation about an annuity for Sarah Roberts, at the
Mold visit, August, 1872.
BLYTHE 'S PROVISION FOR HIS KINDRED.
There is a point in which Counsel, former Judge Boalt, se-
cured a very strong hold on Counsel Dr. Taylor about the con-
tribution to the young woman Florence. Mr. Blythe was not
a very generous provider for his own kin, but I suppose we
could account for the relief extended by him to the indigent
Sarah Roberts, an inmate of the poorhouse, for the same
reason that he endeavored to account, but wdth a less degree
of reason, for his contributions to the support and education
and maintenance of Florence Blythe. She had other sources
of support, but poor Sarah seemed to be dependent entirely
upon Tom, and he out of his abundance made this provision
for an annuity, which was a choice between the outside and
inside of a poorhouse. The counsel passed this by without
remark. It was a very meager pittance. Nevertheless this
meagerness does not disprove the relation of the parties, be-
cause it very frequently happens that rich men do not wish
their poor relations to know of their prosperity, and there-
fore they make scant allowances, and in this case there was
a very good reason for it. Mr. Blythe 's own declaration was
that it would turn the heads of these people if they ever
knew how wealthy he was; therefore, he did not bestow
largely of his bounty upon them. I think it was a wise
resolve, looked at from a worldly point of view.
THE PHOTOGRAPHS IN EVIDENCE.
The Kyffin Jones letter, dated October 19, 1872, from
Paris, in which ^'Thomas Williams^ ^ inclosed four photo-
graphs, "one for your mother, one for Miss Annie, one for
308 Coffey's Probate Decisions, Vol. 4,
sister Sarah and one for yourself," is here with two of the
inclosed photographs, and leaves nothing to be desired as
absolute proof of the case, of the Williams claimants to heir-
ship. Take those photographs, "S. R. 1" and "Annie
Hughes Morris^' Exhibit A," and you will find the same
photographer's mark and ink-written number on the back,
"Cliche, No. 12,794," which you will find on "Wright's Ex-
hibit No. 1," produced by the attorney John A. Wright,
which was produced after the opening of the depositions, and
same as "A. E. B.'s Exhibits F4 and K4," produced in like
manner by the defendant Alice Edith Blythe. Those photo-
graphs are remarkable. I do not think that there is any
feature in this case which furnishes such strong evidence of
the genuineness of the claim of the Williamses to be the
collateral heirs as these photographs. If there is anything
in the case which would emphasize the truth of this remark,
it is the fact that in the case of the "Gypsy Blythes" the
Scotch case, so-called — the little photograph was said to have
been given to the Gypsy Queen. I think the Gypsy Queen is
disposed of; but in this connection it did not need the evi-
dence of photographer Stateler and his partner to prove
that that little photograph was a copy of the Paris photo-
graph. It, as in the other case, proves itself. They would
knock out the spots, as far as they could, on the face of the
negative. There was a resolute, stubborn endeavor on the
part of photographer Watkins. called by the counsel for the
"Gypsy Blythes," to accomplish the purpose, in which he
was aided and abetted by Mr. Burke Holladay most worthily
and ably, but without success. These photographs were
taken previously, and they came from that man "Thomas
Williams," who in 1863 wanted his Paris address to be con-
fidentially kept, and he was the same "Thomas H. Blythe"
who was in Paris in 1872, at the time the photographs were
taken and sent to Kj^ffin Jones. They are his pictures, and
they have marlis of identity, notwithstanding the endeavor
of Counsel Towle to show that one of those pictures, by
reason of a little variation of the ink, was not a genuine one.
Mr. Towle 's endeavor was, as I said in the same connection
before, ingenious, but it was not satisfactory to the court.
The court looked with its own eyes at the same picture and
Estate of Blythe. 309
the same indorsements, and saw identities that could not
have been fabricated in any way. Besides, observe the
sources from which they came; some of them were produced
before the depositions were offered and before these people
or anybody else had a chance to make a simulation.
the personality of the claimants.
Now, with regard to these men, the Williams claimants.
There has been a great deal of animadversion upon different
witnesses in this case and the different claimants, which the
court has striven to avoid noticing, because I assume that all
the persons who have come in as claimants have come in
good faith and with a desire, at least, to demonstrate the
truth of their pretensions. Some of them have come, per-
haps, a little in doubt, but anxious to find out where the truth
lay and to be satisfied with the result even though they were
unsuccessful. There is one thing in this case — the Williams
ease: The personality of these claimants. This man John
Williams, for instance, impressed the court favorably; he
told a plain, straight story, and he looked like a man who
was in the habit of telling the truth. He has not been long
enough in this country to acquire any other habit, perhaps.
but all of them looked like what they claimed to be, honest
and intelligent men, who are habitual church-goers, and who
regularly attend to what duties were enjoined upon them by
their religion. It struck me that there was no affectation
about them; that they were sincere and straightforward men,
and imbued with a religious sense; and, as counsel for these
claimants said, that accounts for what was otherwise unac-
counted for. It is the only case among all the cases that so
accounts for that "devotional Deism," as it is described in
that pious letter of Blythe to old Mr. Perry.
There is not a streak of religion in Mr. Blythe except that
shown in the Welsh case. That accounts for the religious
strain that occasionally cropped out in Thomas H. Blythe.
He got his religion from Wales, where, as Alice Edith Blythe
said, he heard beautiful sermons, prayers rather, and such
nice, such fine hymns, which struck him particularly because
"they seemed to come from the soul." That is the very
strongest evidence. He himself said, as is shown elsewhere
\-
310 Coffey's Probate Decisions, Vol. 4.
in evidence, that in his youth he was accustomed to hearing
hymns.
THE CHARACTER OF WILLIAM WILLIAMS, THE LIVERPOOL SO-
LICITOR,
Now, there was an endeavor on the part of the opposition
to this claim to discredit the testimony of William Williams,
the solicitor, but I do not think it was justified by the facts.
He is not at all a lovable character, but in regard to this
case his statements are borne out by the general force of the
evidence; and John Williams, claimant, struck the key-note,
as counsel suggested, of the character of William Williams,
when he related the result of his interview upon going to his
office to inquire about the White street property, when
William Williams said to him, "Your uncle was a bankrupt,
ran away to avoid arrest, and was a damned scamp ' ' ; and
then John Williams, when he returned home, laughed and
said he had paid eight and sixpence to hear his uncle called
a damned scamp.
William Williams is a crabbed man, close and penurious,
likely to make enemies, of unyielding disposition and natu-
rally of a litigious disposition; but apart from that he is
corroborated, and in various respects. His statement about
Blythe's being at the Washington Hotel on August 23, 1872,
and that he did business with him at that time under the
name of Williams, is corroborated as to the former, and is
evidenced as to the latter, by the extracts from the entries
in his office call-book. William Williams is evidently a very
exact and methodical man, of most minute observation, and
on that very day Blj^the wrote to Elliott the Washington
letter. It is incredible that William Williams' statement
could be false in view of this corroborating letter, of the
contents of which he knew nothing, nor of its existence. In
other respects he is also corroborated, particularly as to the
birthmarks on the face of Blythe. This picture of the corpse
shows that. The photographer Stateler testifies that there
were spots there, although not perceptible even to those who
were intimate with him, because the defendant Alice Edith
Blythe testified that she did not see any spots or did not
observe any; and we had no evidence here except in the
Estate of Blythe. 311
deposition of Dr. Charles Montgomery Wilkins, that inter-
esting gentleman who testified by deposition, and who said
something as to his operating on them with nitric acid. He
called them warts, not birthmarks. What took place be-
tween John Williams claimant, and William Williams, solici-
tor, on April 9, 1883, before either had heard of the death
of Thomas H. Blythe, is a very important circumstance and
startling in its corroboration. On April 9th, in the ordinary
course of events, they would not have known of the death
of Blythe and the circumstances of his death. The fact was
not known to the people in Liverpool on the 9th of April,
although of course it might have been known, just as some-
body else might have been the father of Florence Blythe by
Julia Ashcroft or Julia Perry; it might have been, but it
was not. So here, neither knew at the time of the death of
Mr. Blythe, when the solicitor told him that his uncle Thomas
had gone to America under the name of Blythe (see page 378
of the judge's manuscript notes, volume 4). I have before
me the official stenographer's transcript of the testimony of
John Williams, which is not necessary to go over. The evi-
dence here is as strong as evidence can be that William
Williams did not know of the death of Blythe at the time of
that interview, but first learned of it on the 19th of April,
1883, from an advertisement in the Liverpool "JMercury, "
and the very next day he gave his information to the adver-
tiser. Dr. Hood. The great point on the photographs is their
identity with the original, and on this subject a comparison
may be made of the photographs of Elizabeth Powell,
'' Williams' Exhibits 73 to 76," taken after death, and the
photographs of Thomas H. Blythe taken after death, "Will-
iams' Exhibits 63 to 66." These are matters of resemblance,
and are of frequent occurrence.
THE NATIONALITY OF THOMAS H. BLYTHE.
As to the nationality of Thomas H. Blythe, it is clearly
established that he was a Welshman. The testimony of
Thomas Dain as to the conversation with him shows the dec-
laration of Blythe, also Rev. Aaron Williams, the venerable
pioneer clergj'man. He has been here since 1849, and in his
profession his reputation is high. I think that he told the
312 Coffey's Probate Decisions, Vol. 4.
truth, and it was a perfectly natural story that he told about
■walking up IMarket street. On his way he saw this man,
the decedent Blythe, with his dog there in front of his office;
and he said this great thought occurred to him, and he
preached a little sermon and gave the text to Thomas H.
Blythe: "If e\'^ery man loved his God as this dog loves his
master, what a blessed world it would be"; which is character-
istic and true. His statement and comparison of statements,
about being of a common religion and a common race, and
the relation about these matters, about the place and the
neighborhood of Mold and the old schoolhouse, and that sort
of thing, are certainly facts Blythe could not have known at
that time and have related them to this man, who v.'as
familiar, as he said on the stand, more so, perhaps, than with
some of the places in San Francisco, where he had been for
the last forty j^ears. Bl3'the could not, even with his pro-
pensity for romancing, have invented all these details about
those places, unless he had been there, nor could his memory
have gone to those years and circumstances unless he had
been there at the time ; and therefore I was very greatly
impressed with the strength of the testimony of the Rev.
Aaron Williams. Whatever may be said of other witnesses
and of some of these cases, the Rev. Aaron Williams has char-
acter and reputation; as a citizen in this community he stands
high, and is honored in vocation. It was not suggested on
any side that he was inventing his testimony as he went
along.
Reese Llewellyn is to a less extent in the same situation
as Mr. Williams, his calling is different, but his rating as a
business man is excellent, and his veracity is unquestioned.
Mr. Llewellyn testified as to the Welsh dialects and the dif-
ference in the dialects. He thought that Mr. Blythe spoke
the Welsh dialect of North Wales and was a North AYelsh-
man. Mr. Llewellyn came from the other section. Mr. E.
W. Jones is a Welshman, and a man whose credit is not
impugned; he corroborates Llewellyn. These two gentle-
men are entitled to be considered as supporting the allega-
tion that Blythe was a native of Wales; with reference to the
Rev. Aaron Williams, he did not speak to Mr. Blythe in
AVelsh, and said on the stand he was very sorry he had not
Estate of Blythe. 313
done SO; but he did have sufficient colloquial discourse with
him to show that they came from the same place.
Sarah Roberts' testimony as to her brother Tom's broken
leg, broken early in life, when he was six or seven years old,
when he was going to the works, seems to be supported by
the testimony of Alice Edith Blythe, who makes a statement
about Blythe 's fractured limb. In the judgment of the court,
the evidence is conclusive as to nationality.
THE LETTERS IN EVIDENCE.
As to the genuineness of these documents, the letters : These
letters are established as authentic, in my opinion, apart from
the evidence of the experts, Hickox, Hyde, Grant, and
Schmidt. Only two of these were actual experts in the
professional sense — Hickox and Hyde — and they show, so
far as this class of testimony can show, that these letters were
not fabricated or forged. But when we go over these letters
and examine each with its concomitant circumstances (the
great variety of these letters and the nature of their contents,
the circumstances existing at the dates of their writing, their
early production for inspection and examination, so early as
May, 18&30, the theory that these letters were concocted and
forged by William Williams, solicitor, cannot but be deemed
as utterly improbable. The tracings of Gumpel prove, as I
have already said, nothing as to the facility of fabrication
that was not already known; books of biography and history
are full of f ac-similes made by tracing ; but the task of fabri-
cating the documents in this case is so formidable as to be
simply insurmountable. As to Mr. Gumpel, I do not care to
indulge in any criticism at all, but I do not regard Mr.
Gumpel as an expert in the sense of detecting a false writing
from a true one. He is a very clever calligrapher, but he is
not a student of handwriting. This is shown in his testi-
mony. He comes upon the witness-stand and jumps at a con-
clusion at once. What is the conclusion? A document is
placed before him. Is that true or false? It is false. Why?
Then he proceeds to show it. First he will say, by showing
that a man wrote something like that — illustrating on the
blackboard. I was not satisfied as much with his testimony
as I was with other professional experts, largely, as I have
Y
314 Coffey's Probate Decisions, Vol. 4.
said, because of the way in which he leaps at a conclusion.
As one of the counsel said, Mr. Gumpel seems to have a mania
for denouncing all writings submitted to him as forgeries,
and the court has preserved the record of some cases in court
which would appear to justify this remark. Mr. Gumpel
said the signature "Thomas "Williams" was not made by
Blythe because of the angularity of the letters and the forma-
tion and connection of the "Th" in "Thomas" in the parch-
ment deed; that "C. J. D., 1," is not like any genuine writ-
ing of Thomas H. Blythe; that the "h" is too tall, relatively
higher to the "T" than in his own writing; but this is dis-
proved by the "Paris Wheaton letter," vv'hich is angular
throughout, and the "Th" in the signature is precisely like
the "Th" in the parchment deed in formation and connection
and relative height. The "Thomas" in the Pioneer record
is exactly the third signature "Thomas" in the bill of sale.
That is strictly so. This proves that the signatures in the
parchment deed and the bill of sale were made by Blythe.
Gumpel testifies that the Liverpool-no-date letter was not in
Blythe 's handwriting; that it was doubtful. He had a doubt
because of the stiffness of the figure "7" in the body of the
letter; yet the court in its own handwriting had written
figures precisely like that which he undertook to discredit —
made at the moment, from day to day, and which were taken
from the notes of the court, made precisely like the one which
he considered a characteristic of Blythe 's "7." Again, Mr.
Gumpel said that Blythe never wrote his "J's" below the
line. This is not invariably so. In fifty-two of his letters
to Carr he so wrote his "J's." Gumpel said that in Blythe 's
handwriting roundness and not angularity predominates,
whereas the contrary seems to be the fact in most cases,
although there is an example of a letter written in a strange
hand. Perhaps that letter to Florence, the first letter to her,
shows that he was quite capable of writing a round hand,
and a number of those letters are written in a round hand,
but most of his letters are in angular hand.
The Chicago letter, "W. W. No. 4," September 1, 1870,
is genuine beyond any question, and this case could almost
stand upon that letter, if not entirely stand upon it, and
Gumpel does not testify against it. It is indisputable, al-
Estate op Blythe. 315
though it is not undisputed, and of itself alone is almost
sufficient to establish the case of the Williams claimants so
far as handwriting is concerned.
There are no less than three important documents estab-
lished beyond question in the judgment of the court: one,
the Chicago letter, "Exhibit W. W. No. 4"; the envelope
addressed to Mr. John S. Williams, 19 Parkerfield Terrace,
Birkenhead, containing the letter beginning "My dear John,"
written with blue ink on blue paper; and the '.'Dear John"
blue letter envelope, postmarked "Liverpool, 20th Aug. '70."
Compare the exemplar — the Haskell letter of date New York,
July 29, '62— with the " Paris- Wheaton letter" and the
"Dear Charles" letter of August 26, 1863, and the "Dear
John letter" of London, August 26, 1863, and the character-
istics are all alike, and all made by the same person, Thomas
H. Blythe, as he was known here.
EXPERT EVIDENCE GENERALLY CONSIDERED,
Now, with reference to expert evidence, I desire to say
nothing at all in depreciation of Mr. Gumpel, but assume
that he is to the fullest extent as great an expert, as reliable
a person, and as skillful an artist with the pen, as the coun-
sel introducing him maintained, but he is only one, and there
are four on the other side. Two of them are bank clerks,
accustomed to inspect signatures on checks; but bank clerks
or tellers, who daily look at cheeks, pass them principally
because of their familiarity with the particular signatures
which they have always before their minds, and hence they
do not serve any great purpose in testifying upon signatures
with which they have no real familiarity or actual daily con-
tact. I have noticed this with reference to some of them, be-
cause I have seen them on the witness-stand affirm or deny
signatures with the greatest quickness, almost equal to that
of Mr. Gumpel, and yet not be correct in their conclusion.
But there are two real experts as against Mr. Gumpel — two
persons who are so considered in the community, and who
have come into court twenty or thirty years, or more, whose
opinions are contrary to that of Mr. Gumpel. As to a ques-
tion of evidence, or legal value, there are two to one. The
envelopes, "C. J. D. 3 and 5," addressed "Mr. Drewe, Messrs.
Y
316 Coffey's Probate Decisions, Vol. 4,
Drewe and Sergeantson, attorneys, Castle street, Liverpool,"
and the letters contained in them, went through the mail,
and were undeniably the product of the pen of Blythe, and
could not have been in the circumstances fabricated. Now,
we come to a place where Mr. Gumpel testifies with great
positiveness — as to the letter to Kyffin Jones, dated Grand
Hotel, Paris, October 19th, 1872, of which Mr. Gumpel says
that he does not think that the body or signature of that
letter is in the writing of Blythe, because it is labored and
written with prepared ink. This statement is destroyed when
we compare this letter with any of the Elliot letters from
Paris, the same characteristics being observable in all of
them; take, for example, "Williams' Exhibit 43," 10 Noth-
ingham Place, August 22, 1873, and compare it with the
Ivyffin Jones letter. This letter is proved scientifically. It
is traced right to its source, and is free of all doubt; be-
sides, a comparison of the undisputed letters from Blythe to
Carr with the disputed letters shows similarities which are
very striking. The identities are all in contradiction of
"Gumpel, and the comparison v^hich has been made here dem-
onstrates beyond any doubt that the same hand wrote each
and all of them. That was strongly borne out by the illus-
trations of Mr. Hyde, when he endeavored by a scientific
process to demonstrate the theory opposed to Mr. Gumpel.
Now, there is another proposition, and I adverted to it this
morning, which runs through these letters, and runs all
through the correspondence of Blythe; the characteristics of
his orthography in the admittedly authentic letters and the
singular eccentricities in the disputed letters, the Williams
exhibits ; and sometimes from a very small fact one may prop-
erly draw a large and correct inference. There is one ex-
tremely eccentric instance of spelling, "occation^^ in the
"Dear Charles letter" of London, August 26, 1863, and the
same word in the Haskell letter, New York, July 29, 1862,
"occasion." Here we have the same word misspelled in the
same way, and that way a singularly eccentric one.
This man has been traced all the way through in his writ-
ings, from the earliest letter here produced to the latest, and
his identity and the authenticity of the Williams exhibits
have been established beyond any possible doubt. The same
Estate of Blythe. 317
man that wrote the Haskell letter of 1862 wrote the "Williams
letters. This is demonstrated in every way, by identities of
handwritings, the eccentricities of spelling and grammar, and
many other eccentricities; the identities might be multiplied
in the course of the correspondence, extending over a period
of nearly twenty years, and the inference from these iden-
tities is irresistible. As Counsel Towle said at the commence-
ment of the case of the collateral heirs, the heirs of Blythe
must be in this courtroom here now; some of the claimants
here present must be next of kin; and the court believes that
the next of kin are here present in the person of the Williams
claimants, and so finds and determines.
Estate op THOMAS H. BLYTHE, Deceased.
(THE LIVERPOOL BLYTHES OR "THE BLYTHE COMPANY
CASE.")
Heirship. — The Evidence in this Case examined and held not to estab-
lish the claim of the Liverpool Blythes or "Blythe Company Claim."
H. P. McKoon, Jr., and Geo. W. Towle, for claimants, The
Blythe Company.
COFFEY, J. It is impossible to believe that the legitimate
kindred of the decedent are not before the court ; the presump-
tion of their presence is irresistible ; who they are and which
of them is next of kin is the question.
The next "collateral" case, so called, is that of the "Blythe
Company," in behalf of the Liverpool claimants. This case
was presented with ability and ingenuity, but there is in it
a fatal failure to connect the Thomas H. Blythe of this city
with the "Thomas Blyth," born of Alexander Blyth and
Mary Weaver Blyth, and baptized in the Church of St. Nich-
olas, Liverpool, May 19, 1819 ; the testimony of the Liverpool
witnesses shows that this "Tom Blyth," brother of James
Blyth, baker, left there in 1838 and was never heard of after-
ward; one of them testifies in his deposition that in 1838
Tom promised that he would, be in California before deponent;
some of them testify that the Blythe they knew had a dark
complexion, yet it is well established that Thomas H. Blythe
318 Coffey's Probate Decisions, Vol. 4.
of San Francisco had a very fair complexion; some pretend
that although half a century has elapsed they identify this
Blythe from the ** Pioneer" photograph; there is a failure to
account for his whereabouts from 1838 to 1849 ; and the other
items of evidence are entirely inadequate to identify the
Liverpool Blyth with the decedent.
As Counsel S. W. Holladay said, there was but one man
who could supply the place of Thomas H. Blythe; no two
bodies in physical nature can occupy the same place; no
twp beings in physical nature are precisely alike, no two
grains of sand the same, but character, conduct, mental attri-
butes, distinguish persons who have physical likenesses.
The case of the Bljrthe Company does not present the char-
acteristics of the real Thomas H. Blythe ; it is out of line
with his whole character and career, and there is a fatal
hiatus from 1838 to 1849, which has not been supplied by the
evidence.
WKITTEN RECORD AS TO BLYTHE 'S AGE, IN CHRO-
NOLOGICAL ORDER.
1st. Great Register for 1866.
On June 29, 1866, he gave his age as forty-three years.
This makes his birth year 1822, for he would not be
forty-four until July 30, 1866, if July 30, 1822, be the
correct birthday and birthyear.
2d. Petition of Blythe to California Lodge of Masons for
membership.
This dated October 16, 1866, and in it he states his age
as forty-three, the same as in his registration a few
months ago.
But as he had passed his forty-fourth birthday, he slightly
understated his age.
3d. In Safe Deposit agreement dated May, 1878, he gives
his age as fifty-four.
Here again he slightly understates his age, for he was
then fifty-five, his fifty-sixth birthday being some two
months distant.
4th. Great Register for 1879.
July 8, 1879, he gives his age as fifty-six years.
Now, as his fifty-seventh birthday was yet some three
weeks distant, he was exactly fifty-six, as stated.
Estate op Blythe. 31D
5th. In letter to Florence, of date February 10, 1882, he
says:
"My birthday is the 30th July, and on my next birth-
day I shall be sixty years of age." (Plaintiff's Exhibit
59, page 4.)
6th. In letter to Irish of May 21, 1882, he says:
"I shall be sixty years old 30 next July." (Plaintiff's
Exhibits 225 and 225a.)
Note, — Thus we see that out of six writings we have four
agreeing exactly, while two are but slightly out of the way.
and these two are the least in importance and significance
It is noteworthy that in registering he had to swear to hi?
age, and that the two registrations agree with each other and
with the two letters.
It is quite impossible, with such a record as this, to put
Blythe 's birthyear as 1819 — the year claimed by Blythe
Company.
This case is not established.
Estate of THOMAS H. BLYTHE, Deceased.
(THE "SCOTCH BLYTHES" OE THE "GYPSY CLAIM.")
Heirship. — The Evidence in this Case is found not to establish the
"Gypsy Claim." "It is a Scotch case with a Scotch verdict: 'Not
Proven.' "
S. W. Holladay and E. Burke Holladay, for claimants
Henry T. Bh^he et al.
COFFEY, J. The case, which is called for convenience the
"Gypsy Claim," was based upon the proposition that Thomas
Henry Blythe was the true name of deceased and that he was
never known by any other name ; that he was the son of Adam
Blythe, the only child of Adam aforesaid, born in Scotland,
or in the border country, of Gypsy stock, descended from
Charles Blythe and Jane Gordon (who was the original, it is
said, of "Meg Merrilles" in Scott's novel of "Guy Manner-
ing"), who had children three, John, David, and Walter
Alexander, the last named the father of Adam, the direct
lineal ancestor of Thomas Henry Blythe, deceased, whose
320
Coffey's ProbxVte Decisions, Vol. 4.
estate is here in controversy; David had two sons, David and
Charles; the third son of Charles Blythe and Jane Gordon,
John Blythe, came to America one hundred years ago, more
or less; he had two sons, John and Solomon, from whom
came claimants^ Charles and David, sons of David, had
numerous progeny, as may appear from the annexed and
appended family tree:
/■Walter Alexander — i Adam •
o
a
c6
o
o
<
X. i David .
•4
td
X
><
n
00
N
•J
OS
•<
X
^barlee ■
^DavUl-
/John-
>.John-
■{ Thomas Hesrt,
/Helen Blythe.
Charles -
William •
John—
/Elizabeth Shfltan,
Acbarles.
/William.
-< Esther Douglau,
VJane Uiythe.
-<CharIe»
David ■
/Joh*.
1 Esther
Esther Faa B.
ord /
f < Ellen Rutherford.
\ John Rutherford
David •{ EUen McDonald,
Jane McManut,
Rachael Jackson.'
/■William Jones —
^ John F.
rjohn W. Blythfc
•< Wallace Vi.
^Penola E. Newport,
-< William 3.)
Joseuh A.
.Henry Thomas.'
LSolomoo-
-■< Jamet T.
These Blyihes were Scotch; they did not speak Welsh;
they were Presbyterians; they \vere Scotch "Gypsies."
This case had a creditable appearance when first produced;
the claimants are persons who have impressed the court favor-
ably as to their appearance and character, and there is no
Grand Lodge A. 0. U. W. i-. Miller. 321
-doubt that they started in with the honest hope of establish-
ing their title to this estate, but to them, as to some others,
''hope told a flattering tale" at the beginning, and if they
retained it to the end of the trial "disappointment must now
follow."
It was a plausible case, well presented, with every coigne
of vantage quickly seized and vigilantly guarded by the
counsel, but if anything were necessary to condemn it, it was
the testimony of the man who was described by the counsel as
"the last and most important witness," James Duflfley ; his evi-
dence sealed its doom. It is a Scotch case with a Scotch ver-
dict: "Not Proven."
Note. — No opinion or memorandum was written by the
judge in the case of the other collateral heir-claimants, as
none of those cases possessed sufficient merit, in his judg-
ment, to warrant separate treatment.
GRAND LODGE A. 0. U. W. v. MILLER.
In the Matter op the Estate of MATILDA PEACOCK,
Deceased.
[No. 18; decided May 8, 1907.]
Death — Presumption of Survivorship. — Where a husband and wife
perish in a common calamity, such as an earthquake, both being
between the ages of fifteen and sixty, he is presumed to survive
her.
Interpleader to have the court determine who is entitled to
$1,000 due under a policy or beneficial certificate issued to
William Peacock.
William Peacock held a beneficial certificate issued by plain-
tiff, by which it agreed to pay his beneficiaries the sum of
$2,000 upon his death. He nominated his wife, Matilda F.
Peacock, his beneficiary. The constitution and by-laws of
plaintiff provided that upon the death of a designated bene-
Prob. Dec, Vol. IV — 21
322 Coffey's Peobate Decisions, Vol. 4.
ficiary, in default of a new appointment b}' tlie holder of a
certificate prior to his death, then upon the death of the holder
of such certificate, the amount should be paid to the children
of such deceased, share and share alike.
Both William Peacock and Matilda F. Peacock were killed
at Santa Rosa m the great earthquake disaster on the morn-
ing of April 18, 1906, while at the Occidental Hotel, which
was razed to the ground. They left surviving them their
daughter, Ada Baptist; and William Peacock left surviving
him Ida Miller, a daughter by a former marriage. These
two daughters are the only surviving children of William
Peacock, deceased, and Ada Baptist is the only surviving child
of Matilda F. Peacock, deceased.
The plaintiff issued two drafts for $1,000, one payable to
Ada Baptist, the proceeds of which she has received ; the other
payable to Ida Miller. The draft which was made payable to
Ida Miller was not delivered to her. The amount was and is
claimed by Ada Baptist, as executrix of the estate of her
mother, Matilda F. Peacock, deceased. In other words, Ada
Baptist received $1,000 of the amount due by reason of her
father's death, and claims that her sister of the half-blood
should receive nothing from the beneficial certificate, but that
the other $1,000 belongs to the estate of her mother. Her
claim is based upon the contention that her mother survived
her father, and hence that immediately upon the death of her
father the amount became due by plaintiff to her mother.
The evidence shows that the bodies of both William Pea-
cock and his wife were found by a rescuing party about 9
or 10 o'clock on the morning of the earthquake, after remov-
ing the debris, timbers and mortar, on the same bed in the
room in which they had retired the night before, cold in death,
and that there was mortar and debris on the bed and over
the bodies. There is evidence to the effect that his body was
lying flat in bed with one hand under the back of his head;
that there was a cut near his temple; that his skull was
crushed; that he had a wound in his stomach; that the bed-
clothes were off his shoulders and off part of one side of his
body; that the bedclothes were off, or rather, at the foot of
the bed on the side where Mrs. Peacock lay; that one of her
Grand Lodge A. 0. U. W. v. Miller. 323
legs was out over the side of the bed; that her body was
pretty badly bruised ; that there was mortar through her hair,
under her eyelids and in her nostrils ; that there was a watery
substance or foam in her mouth ; that her face and body were
somewhat discolored. Ada Baptist and her husband, Joseph
Baptist, each testified that when they saw Mrs. Peacock's body
ten days after death, when she was buried at Petaluma, her
hair was gray from a quarter to half an inch from the scalp,
extending from the forehead pretty much over the entire
scalp. Ida Miller testified that about three weeks before the
death of Mrs. Peacock she saw her sister, Ada Baptist, put-
ting some hair restorer on Mrs. Peacock's hair. John Pea-
cock, a brother of William Peacock, deceased, testified that he
saw the body of Mrs. Peacock the next day after the earth-
quake, and that he noticed no difference in the color of her
hair after death from what it was before. None of the wit-
nesses who assisted in taking out the bodies on the morning
of the earthquake testified as to any rim of gray hair near
the scalp.
W. F. Williamson, for Grand Lfodge A. 0. U. W.
For Miller and others, Bishop & Hoefler, L. F. Hart and
A. A. Sanderson.
COFFEY, J. The presumptions are all in favor of the
survivorship of the husband in such a case as this. I think
the statute is pretty plain upon that. The California stat-
ute is but an expression of the law as it existed in the Roman
law and the civil law. We will look at the statute for a mo-
ment — section 1963, subdivision 40, of the Code of Civil Pro-
cedure:
"When two persons perish in the same calamity, such as
a wreck, a battle, or a conflagration, and it is not shoAvn who
died first, and there are no particular circumstances from
which it can be inferred, survivorship is presumed from the
probabilities resulting from the strength, age and sex, accord-
ing to the following rules : . . . .
"Fourth — If both be over fifteen and under sixty, and the
sexes be different, the male is presumed to have survived."
324 Coffey's Probate Decisions, Vol. 4.
Now, is there any evidence to rebut these presumptions?
There is something in the evidence here about the wife's
hair turning gray. The argument from which, I understand,
is that that is an evidence of survivorship, because the hair
must have turned gray by sheer fright or suffering on account
of the calamity, fright and suffering being suggestions of
vitality.
On the other hand, there is also evidence here that there
had been a solution used on the wife's hair to restore the orig-
inal color and to obscure the evidence of grayness, which
would probably counteract any argument that might be based
upon this fright or suffering turning the hair gray. It is
also in the proof that there were streaks of gray hair there.
There is some testimony that it was in rather a ragged rim,
about a quarter to half an inch above the temple. One of
the witnesses testified it was just above the temple that it
turned gray. That was not the original color. There is also
testimony from a source which ought to know, that the wife's
hair was gray before she went to Santa Rosa, and had been
gray for some time, and that that was a common character-
istic of both herself and her sister. It is not necessary to
disparage the witnesses here, nor to discredit Stearns or
Townsend, but the extent of their acquaintance with the de-
ceased husband and wife, as well as that of Gilliam, may be
called in question. Gilliam did not know the decedents at
all, except by sight; once or twice he saw Mr. Peacock. He
was not acquainted with him. Wilcox, on the other hand,
was very well acquainted with him, and had been his particu-
lar friend and associate, and had been with him until very
late at night and early in the morning on the night and day
preceding the earthquake.
Those persons who saw the two bodies after death did not
testify with any certainty or with any positiveness. Their
testimony is meager and somewhat vague, and is not of that
degree of positiveness that entitles it to be considered evi-
dence which should rebut the statutory presumption which
gives to the male and the elder and the stronger person the
inference of survivorship. The male is presumed to survive
the female; the elder to have survived the younger; the
stronger to have survived the weaker.
Grand Lodge A. 0. U. W. ik Miller. 325
Now, what are the facts in this case, with respect to the
support of these presumptions? This lady was frail phy-
sically, was some thirteen or fourteen years younger than the
husband, weighed about one-half his weight. The evidence
is that she weighed, one witness said eighty or ninety, another
witness says about eighty-five, and another, one hundred and
one, one hundred and fifteen to one hundred and twenty-five.
The other witnesses say she was delicate, or, at least, "frail"
is the word that was used; slight, slender, infirm, light in
weight. The husband was a man robust and strong, weighed
two hundred pounds, was of the age of fifty-six, in the prime
of life as far as age was concerned. He had no trouble phy-
sically, except that it was suggested he had a slight stomach
ailment. As far as physical health was concerned, both the
legal presumption, the presumption of law, as stated in the
statute, and also the presumption of fact, would be entirely
in favor of his survivor.ship. He was under sixty. If he
were over that age the presumption would be otherwise. But
he was under sixty — several years under. I do not see any
facts in this case that were shown by the testimony of Mr.
Steams, or Mr. Townsend, or Mr. Gilliam, that would weigh
at all against these presumptions, that could be considered
even if there were no legal presumptions against the presump-
tions of fact. I do not think that there is any case in the
books that would justify me in saying anything to the con-
trary. The case of Sanders v. Simcieh, 65 Cal. 50, 2 Pac. 741,
does not seem to be analogous to this. The Estate of Helena
Howard (tried in this Department and reported in the San
Francisco Law Journal of September 14, 1896), to which I
referred the other day, was the case of two persons who were
quite well advanced in life — they were both over sixty. As
to the case of Hollister v. Cordero, 76 Cal. 649, 18 Pac. 855,
Mr, Williamson says there were no facts in that case. I did
not read the case exactly as he does in that respect. There
was evidence in the case.
Mr. Williamson: In that case they found the body of one
in the yard and the other in the house, and the court held
there was nothing to indicate from the mere fact that one
was in the yard that necessarily he had survived. He might
have been killed first in the yard.
326 Coffey's Probate Decisions^ Vol, 4.
The Court: Yes, sir.
Mr. Williamson: They say, I think they use these terms,
when there is nothing to show which died first, the theory is
that where, as here, that condition exists, the presumption
ceases to exist and it becomes a question of the weight of evi-
dence, and upon that statement of facts the judgment is asked
for.
The Court: The supreme court said, in Hollister v. Cor-
dero, that the evidence is without conflict, so there was evi-
dence there. Now, it undertakes to give the substance of the
evidence. It does say that there is nothing to show which
one expired first, and then it proceeds to deal with the prob-
abilities arising from the evidence as to which one might have
expired first, and then it discards the evidence altogether, the
evidence as far as the facts are concerned, and deals only with
the presumptions.
In this ease there is not, in my judgment, any evidence to
show that this lady survived her husband. They both ex-
perienced the effect of a common shock. There was nothing
to show that there was any particular writhing or torment,
or any movement of the limbs of the body after the earth-
quake occurred. Townsend testifies as to something that
might be frothing at the mouth, or saliva, or something exu-
ding — at least he says something to that effect. Some mortar
was deposited seemingly under the eye, and some lime, or
something of the kind, under the lids. That particular tes-
timony was, I must say, rather a suggestion of the examiner
than the original and independent testimony of the witness.
It was Mr. Williamson that suggested that this was under
the eyelids, and the witness assented to that.
Mr. Williamson : I think, your honor, he spoke of it in the
eye, and that the question was whether it was under the eye-
lids.
The Court: It might have been deposited in the eye.
Of course, when the building collapsed, there was some debris,
some portions of the mortar or cement — there were no bricks,
as far as could be seen. Mr. Peacock had the side of his
head crushed, it seems. It does not seem, however, that death
immediately ensued, nor does it seem that there was a com-
plete fracture. Townsend said first, the skull was cracked,
Grand Lodge A. 0. U. "W. v. Miller. 327
that there was a crack there. Then I asked him if there was
a fracture, but he did not assent to that. He said it was a
gash and it seemed to penetrate to the bone. The gash might
have penetrated to the bone without the 'skull being fractured.
There is a great difference there. So, as far as that is con-
cerned, there is no evidence.
Mr. Williamson : The next question brought out the fact
from the witness that the bone was crushed in.
The Court: Well, hardly so. I do not know that it is
necessary to refer to the notes for that. He said there was
a deep gash there, about two and a half inches deep, that it
went to the bone. The point is that it did not seem that death
was naturally inferable as immediately consequent upon that
wound. He might have survived that wound for some time.
There was testimony of the deputy coroner, speaking from
his experience with bodies — it was not particularly notice-
able how far his experience extended — that the man had
died from smothering. No doubt he did. No doubt the lady
died also from that species of asphyxiation. Both conclu-
sions are probable. That helped them both, as far as caus-
ing death was concerned. But I do not think that there is
evidence, that I can regard as such, that shows that this
lady survived her husband. The presumptions are very
strong against that conclusion. As far as I can judge the
evidence now, I shall say that Mr. Peacock survived his wife.
The court will make an order denying the application of
Mrs. Baptist for partial distribution, and giving judgment
in favor of the defendant, Ida Miller, in the case of Grand
Lodge V. Miller et al.
The Principal Case was before the court of appeals in 8 Cal. App.
25, 96 Pac. 22. See the note on presumption of death to Estate of
Kustel, 2 Cof. Pro. Dec. 3.
328 Coffey's Probate Decisions, Vol. 4.
Estate op MARY CROCKETT, Deceased.
[No. 28,411; decided December 29, 1903.]
Special Administrator — Who Entitled to Appointment. — When a
testatrix leaves all her property to her husband, whom she names
executor, but he dies before the return day of the application for
the probate of the will, the sister of the testatrix, who is the sole
heir and who is contesting the probate, is entitled to special letters
of administration as against the public administrator.
Application for special letters of administration.
Carlton W. Greene, for public administrator.
David I. Mahoney, for Catherine A. Wake, sister of dece-
dent.
COFFEY, J. Mary Crockett died in the city and county
of San Francisco, leaving her surviving, as her only heirs,
her husband, Charles Crockett, and her sister, Catherine A.
Wake. After her death Benjamin Healey filed with the clerk
of this court a document purporting to be the last will of
deceased. To the probate of this document a sister, Catherine
A. Wake, filed opposition and also filed her petition pray-
ing to be appointed special administratrix of the estate. The
public administrator also filed an application for special
letters.
In the document purporting to be the last will of the de-
ceased, all decedent's property is left to the husband, Charles
Crockett, and he is named executor. There is also a state-
ment that decedent purposely omits to make provision for
her sister, Catherine A. Wake, as she is sufficiently provided
for. Charles Crockett, the husband, died before the return
day of the application for probate of will.
Catherine A. Wake claims the right to special letters of
administration as sister and only living heir.
The public administrator bases his claim upon his inde-
pendent statutory right, claiming that the purported will
cutting off the sister deprives her of the right to succeed to
the personal estate of deceased, and consequently destroyed
her right to administer.
Estate of Crockett. 829'
The only question arising upon these facts is, Does the
filing of the instrument, purporting to be a will, deprive the
sister of testatrix of a right conferred upon her by the
statute. The public administrator concedes that in the
absence of the will the sister of decedent would be entitled
to letters special and general ; but insists, inasmuch as the
law provides two methods for determining succession to the
property of a deceased person, both methods are of equal
dignity and, as a source of title, neither is higher than the
other, so, if any preference is to be shown judicially, it
should seem that the wishes of the testatrix, the person who
accumulated the estate, should be regarded.
The public administrator denies, however, that the sister
had any statutory right, although prior to the death of testa-
trix she had a possibility of acquiring such right, but its
acquirement rested upon the death of decedent without mak-
ing a will. The leaving of a will, in which decedent disin-
herited her sister, disposed of the possibility, so that the
sister, through the testamentary act of the decedent, never
acquired a right of succession to the personal or any estate
of the testatrix, and consequently no right, statutory or
other, was ever vested in her to administer upon that estate.
The statute establishing the order of persons entitled to
administer provides that administration of an estate of a
person dying intestate must be granted to some one or more
of the persons therein specified, the relatives of the deceased
being entitled to administer only when they are entitled to
his personal estate or some portion thereof; and they are
respectively entitled thereto in this order: "1. The sur-
viving husband or wife, or some competent person whom he or
she may request to have appointed 5. The sister
8. The public administrator": Code Civ. Proc, sec. 1365.
Section 1411 provides for the appointment of a special ad-
ministrator when there is a delay in granting general letters.
Section 1413 provides that in making the appointment of
a special administrator, the court or judge must give prefer-
ence to the person entitled to letters, testamentary or of ad-
ministration.
The document here propounded as a will is in contest;
the contestant is the sister of the decedent, and if she sue-
330 Coffey's Probate Decisions, Vol. 4.
eeeds in establishing her grounds of contest, her right will,
by reason of the destruction of the document, relate back
to the death of decedent, and she will be entitled to full letters
of administration, she being the sister and sole heir at law.
Pending this (jontest it is claimed by the public administra-
tor that the court should assume the validity of the pro-
pounded paper in all its parts and deny the asserted right
of the sister to special letters, because, taking the instrument
to be valid, she is ousted of her inheritance; and he argues
that as for some purposes the legislature has provided that
a document filed as a last will shall be considered to be prima
facie evidence of what it purports to be ; as, for instance, by
section 1373, Civil Code, it is provided that the executor
named shnll have the power before letters issued to him to pay
funeral charges and take necessary measures for the preserva-
tion of the estate, and in section 1413, Code of Civil Pro-
cedure, it is made incumbent upon the court in appointing
a special administrator to give preference to a person en-
titled to letters testamentary; so in this case, in the absence
of an executor named, the control of the estate should be
placed in the hands of one or more of the persons to whom
the deceased intended it should go, and, in default of such,
letters should be granted to an officer elected by the people
for that purpose.
In the case of an executor named in the will offered for
probate, or otherwise competent, the court would have no
discretion to deny the application; but the executor here
named is dead ; he was the husband and sole devisee of dece-
dent, who left no children; the sister is, consequently, the
only next of kin, and, were it not for the will, would unques-
tionably be entitled to letters of administration, as succeed-
ing to the personal estate under section 1365 of the Code of
Civil Procedure, and, therefore, to special letters under sec-
tion 1413.
Does the profert of this paper suspend or destroy her title
to letters? Until the paper propounded be established as a
will by a judgment of the court she has a claim to be con-
sidered as a statutory succedent; she has a title to assert
and maintain of which she may not be deprived primarily
by the act of another, to which she is not a party, until that
Estate op Crockett. 331
act shall be validated by a judgment; non constat it will
ever be so determined ultimately in this case, for it is yet to
be tried and adjudicated. This is not the time at which
nor the manner in which to settle the question of succession.
And it would be tantamount to an attempt in that direction
if the sister's application for special letters were denied. I
think the sense of the authorities sustains this view, which
I am satisfied is right in principle.
The principle is correctly and concisely stated by Judge
Myrick in the Estate of Haskell, Myr. Rep. 204. The accu-
racy of that statement as matter of law is conceded by
the public administrator; but he says that when a person on
application for letters deliberately puts in issue his right for
distribution and seeks an adjudication upon that point as a
fact essential to the establishment of his right to administer,
he is upon distribution held to be estopped from attacking
the finding of the court made upon the decree determining
his right to letters of administration; and in such a case.
the finding as to heirship is a material and necessary element
and issue; but that is not this case, and the answer to the
proposition is supplied by the text of Myrick on page 205
of his reports. The entire opinion in that case may be read
into this and applied with advantage.
"The object of the petition for and the grant of letters
was to have an adjudication that the deceiised had died,
and that she left estate subject to administration in this court.
The existence and allegations of these facts, the requisite
notice being given, gave the court jurisdiction. The ques-
tion as to who should be the administrator is quite another
matter. The administrator is but an officer of the court. The
object of alleging that the petitioner was the husband, was for
the purpose of showing that he had a right to administer over
all others. The court could have granted letters to him, even
if the petition had not alleged the relationship. The ques-
tion of relationship and the consequent right to succeed to
a portion or the whole of the estate was not then in issue, and
would not arise for purposes of succession until distribution
be asked for. By the notice which was given on application
for letters, the attention was not challenged as to who should
succeed or had succeeded to the estate ; it was challenged only
332 Coffey ^s Probate Decisions, Vol. 4.
to the matter of having administration. Suppose a creditor
should apply for and obtain letters, would the grant be con-
clusive as to his debt, and he be under no necessity of having
it allowed before payment? By no means."
The right to ^icceed to the estate of a decedent is derived
from the statute of succession : Civ. Code, sec. 1386.
In this section are enumerated the persons and classes en-
titled to succeed to the estate of a decedent, and whether
they ever do so or not finally, they are entitled to succeed, and
as we look to this section, as a source of their title, the provi-
sion of the Code of Civil Procedure must be construed in its
light.
In this case there is living neither husband, children, father,
mother, or brother; the sister only survives as the sole heir
at law. In the case of Butler v. Perrott, In the Matter of
the Estate of John Butler, Deceased, 1 Demarest, 9, Surro-
gate Rollins declared that a present right to participate in
the distribution of an estate was not an essential qualification
for an administrator claiming as a relative of the decedent.
The right of any person of the decedent's blood is superior
to that of the public administrator.
This doctrine was laid down in Lathrop v. Smith, 35 Barb.
64, and afterward reaffirmed by the court of appeals of
New York, 24 N. Y. 420, and has never since been questioned
in that state; and it is in line with the case of Anderson v.
Potter, 5 Cal. 64, decided at the January term, 1855, in which
Mr. Justice Heydenfeldt, speaking for the court, decided that
under the statute regulating estates of deceased persons, the
seventh classification of persons entitled to administer, com-
prising "any other of the next of kin who would be entitled
to share in the distribution of the estate," must be construed
to mean the next of kin capable of inheriting, or who would
be entitled to distribution if there were no nearer kindred.
But the public administrator denies the authority of these
cases, because the New York statute as well as the statute as
it stood in California at the time of Anderson v. Potter differ
from the law as it now reads, which was construed in the
Matter of Eggers, 114 Cal. 465, 46 Pac. 380, wherein it was
said that the decision in 5 Cal. 63 was based upon the statute,
Estate of Crockett. 333
the language of which has been materially changed by the
code and is, therefore, not in point.
In the Eggers case, Estate of Davis, 106 Cal. 453, 39
Pac. 656, was cited, and the public administrator claims that
these two cases are determinative of the issue of the case at
bar. In the first of these two cases it was proved at the
hearing that one applicant was a second cousin of the
deceased, who had no other relatives in this country, but had
a father and brother living in Germany. Clearl}'-, as the
supreme court said, in such circumstances the second cousin
was not entitled to succeed to the personal estate of the
deceased or to any portion thereof, and was, therefore, not
entitled as against the public administrator to letters; but
that is not this case, nor at all analogous to it ; nor is the case
at bar affected by the verbal changes in the statute which,
however applicable in the matter of Eggers do not affect
this application, which stands squarely upon the statute of
succession, of the benefit of which she cannot be deprived
until distribution ; for she remains an heir until then, no
matter what the will may provide. In Estate of Davis there
was a contract between husband and wife, and the latter
was held to have waived thereby the right of administration.
There is no analogy here; Catherine Wake never waived her
rights; on the contrary she has been constantly and sturdily
asserting it; she is the sister, and there is no one nearer in
blood to the decedent; and she is claiming nothing in this
proceeding save the right to special letters, to Avhich she is
entitled, notwithstanding the document propounded as a will.
The application of the public administrator is denied and
that of the sister granted; the bond to be fixed in the order
of appointment to be drawn and presented by counsel.
In Appointing a Special Administrator the court must give prefer-
ence to the person entitled to letters testamentary or of administra-
tion, but no appeal lies from the order of appointment: Cal. Code
Civ. Proc, 1413; Estate of Carpenter, 73 Cal. 202, 14 Pac. 677;
Estate of Ohm, 82 Cal. 160, 22 Pac. 927. In postponing the consid-
eration of an application for letters of administration until the
validity of an alleged will of the decedent can be determined, the
court may appoint a special administrator: Estate of Edwards, 154
Cal. 91, 97 Pac. 23.
334 Coffey's Probate Decisions, Vol. 4.
The appointment of a stranger as special administrator in prefer-
ence to an heir and devisee, if error, is not in excess of jurisdiction,
and hence cannot be annulled on certiorari: Dahlgren v. Superior
Court, 8 Cal. App. 622, 97 Pac. 683.
Estate of AUGUSTE BERNARD RICHET, Deceased.
[No. 1501; decided April 6, 1909,]
Wills. — ^Precatory Words are Expressions in a will praying or
requesting that a thing be done; they are words of entreaty, request,
desire or recommendation at distinguished from direct and impera-
tive words.
Wills. — Precatory Words Addressed to a Devisee or legatee make
him a trustee for the person in whose favor they are used, pro-
vided the testator has pointed out with sufficient certainty both the
object and subject matter of the intended trust.
Wills — Cutting Down Fee by Subsequent Words. — Wben an abso-
lute estate has been conveyed in one clause of a will, it is not cut
down or limited by subsequent words except such as indicate as clear
an intention therefor as shown by the words creating the estate.
"Words that merely raise a doubt or suggest an inference will not
affect the estate thus conveyed. This rule of construction controls
the rule that an interest given in one clause of the will may be quali-
fied or limited by a subsequent clause.
Wills — Subsequent Precatory Words Cutting Down Fee. — Under a
clause in a will providing that "all the rest and residue of my estate,
real or personal, wheresoever situate, of which I may die seized or
possessed, I give, devise and bequeath to my beloved wife
It is my wish that my wife pay a monthly pension of ten dollars to
my sister during the latter's lifetime" — the wife is entitled to the
entire residue of the estate, free from any limitation or trust.
P. A. Bergerot, for Sarah Richet, widow of testator.
S. J. Bnin, for Bertha Richet, sister of testator.
COFFEY, J. The clause of the will to be construed is as
follows :
"Secondly — If any posthumous children should be born. I
give and bequeath to them the sum of $5,000 each. To my
Estate of Richet. 33^
stepchildren, Thomas and Mathilda London, I give and be-
queath $100 each.
"All the rest and residue of my estate, real or personal,
wheresoever situate, of which I may die seized or possessed, I
give, devise and bequeath to my beloved wife, Sarah Richet.
.... It is my wish that my wife pay a monthly pension of
ten dollars to my beloved sister during the latter 's lifetime."
The question to be determined in this matter is whether or
not the words of the will do or do not create a trust for the
payment of a monthly pension to testator's sister. After
granting all the residue of his estate to his wife, testator uses
these words: "It is my wish that my wife pay a monthly
pension of ten dollars to my sister."
If these words created a trust, there is no doubt that the
sister is entitled to the monthly pension.
Precatory words as defined by Bouvier are expressions in a
will praying or requesting that a thing be done. Burrill says
that they are words of entreaty, request, desire or recommen-
dation employed in wills as distinguished from direct and im-
perative words. Such words when addressed to a devisee or
legatee will make him a trustee for the person in whose favor
they are used, provided the testator has pointed out with
sufficient certainty both the object and subject matter of the
intended trust: See Harrison v. Harrison, 2 Gratt. 1, 44 Am.
Dec. 365.
In Bohon v. Barrett, 79 Ky. 378, the court, speaking of
precatory trusts, says: "His (the testator's) wishes and de-
sires as to the disposition of his property after his death con-
stitute his will (Burt v. Herron, 66 Pa. 402), and although
such desire is not expressed in mandatory language, yet, if
from the language used it can be inferred, with reasonable
certainty, what the desire of the testator is, it will be treated
by the courts as his command and executed accordingl}'. "
In the leading English case of Knight v. Knight, 3 Beav.
172, the court says: "As a general rule, it has been laid down
that when property is given clearly to any person, and the
same person is by the giver, who has power to command,
recommended or entreated or wished to dispose of that prop-
erty in favor of another, the recommendation or entreaty
or wish shall be held to create a trust. First, if the words
336 Coffey's Probate Decisions, Vol. 4.
are so used that upon the whole they ought to be construed
as imperative; second, if the subject of the recommendation
or wish is certain ; and thirdly, if objects or persons intended
to have the benefit of the recommendation or wish be also
certain,"
In Lines v. Darden, 5 Fla. 51, the court said: "The words
'will and desire,' when addressed to an executor, are, as con-
tended, imperative, and it is his duty to carry out the wishes
of his testator, if possible and when consistent with the will. ' '
In Eberhardt v. Perolin, 48 N. J. Eq. 592, 23 Atl. 501, the
word "recommend" was given an imperative meaning. For
instances of cases where the word "wish" has been construed
in a mandatory sense, see Phebe v. Quinllin, 21 Ark. 490 ;
Bohn V. Barrett's Exr., 79 Ky. 378; Pratt v. Trustees etc., 88
Md. 610, 42 Atl. 51 ; Blivea v. Seymore, 88 N. Y. 469 ; Phillips
V. Phillips, 112 N. Y. 197, 8 Am. St. Rep. 737, 19 N. E. 411 ;
Meehan v. Brennan, 16 App. Div. 395, 45 N. Y. Supp. 57.
In Phillips V. Phillips, 112 N. Y. 197, 8 Am. St. Rep. 737,
19 N. E. 411, where an olographic will after a devise of
all the estate to the wife provided: "If she find it always
convenient .... to give my brother E. W. during his life,
the interest on $10,000 (or $700 per annum), I wish it to be
done " — it was held that the provision did not refer to the
choice, or preference of the devisee, but to her pecuniary con-
dition each year, and hence that the intent of the testator
was to charge the annuity upon the devisee or the wife, pro-
vided that the payment in any one year would occasion her
no inconvenience.
In Murphy v. Carlin, 113 Mo. 112, 35 Am. St. Rep. 699, 20
S. W. 786, it was held that a precatory trust was created by
the following words: "It is my wish and desire that my wife
continue to provide for the care, comfort and education of
T. J. M., now aged nearly five years, who has been raised
as a member of my family since his infancy, and to make
suitable provision for him in case of her death, providing
that he continue to be a dutiful child to her and shows him-
self worthy of consideration."
In Knox v. Knox, 59 Wis. 172, 48 Am. Rep. 487, 18 N. W.
155, the will contained the following: "I give, devise and
bequeath unto my wife, M., her heirs and assigns forever,
Estate op Kichet. 337
all my real and personal estate .... having full confidence
in my said wife, and hereby request that at her death, she
will divide equally, share and share alike, in equal portions,
as tenants in common between my sons and daughters (nam-
ing them) all the proceeds of my said property, real and
personal, goods and chattels hereby bequeathed." The court,
after a thorough discussion of the subject, held that the wife
obtained under the will a life estate coupled with a trust as
to the remainder in favor of the children.
In Bull V. Bull, 8 Conn. 47, 20 Am. Dec. 86, it was held
that a trust was created by a devise of "All the rest and
residue of ray estate, both real and personal .... to my
brothers (naming them) whom I appoint my executors, with
full confidence that they will dispose of such residue among
our brothers and sisters and their children, as they shall judge
shall be most in need of the same ; this to be done according
to their best discretion," it was held that a trust was created.
In Blanchard v. Chapman, 22 111. App. 341, it was held
that a trust was created in favor of a brother by a testament
saying: "Having and reposing implicit confidence in the
goodness and kindness of my dear wife, I rely on her to
make all needful provisions for the future wants of my
brother. ' '
• From the foregoing cases counsel for the sister argues that
a trust is created by the will of the testator in her favor; but
the question in this state is disposed of by the decision in
Estate of Marti, 132 Cal. 666, 61 Pac. 964, 64 Pac. 1071, in
which Mr. Justice Harrison, speaking for the court, said:
The testator had, by a previous clause in his will, given and
bequeathed to his wife "all the other property, real and per-
sonal, and wherever situated, of which I may die possessed."
This gift is explicit, and without any words of limitation or
qualification. Considered by themselves, they create in her
an absolute estate in the propert}^ given by him. The author-
ities all agree that when an absolute estate has been con-
veyed in one clause of a will, it will not be cut down or
limited by subsequent words, except such as indicate as clear
an intention therefor as was shown by the words creating
the estate. Words which merely raise a doubt or suggest an
Prob. Dec, Vol. IV — 22
338 Coffey's Probate Decisions, Vol. 4.
inference will not affect the estate thus conveyed, and any
doubt which may be suggested by reason of such subsequent
words must be resolved in favor of the estate first conveyed.
This rule of construction controls the rule that an interest
given in one clause of a will may be qualified or limited by a
subsequent clause: Thornhill v. Hall, 2 Clark & F. 36; Hess
V. Singler, 114 ]\Iass. 56 ; Clarke v. Leupp, 88 N. Y. 228 ; Free-
man V. Coit, 96 N. Y. 63; Clay v. Wood, 153 N. Y. 134, 47
N. E. 274; Fullenweider v. Watson, 113 Ind. 18, 14 N. E.
571. The rule has been formulated in this state, in section
1322 of the Civil Code, which declares that a clear and dis-
tinct devise or bequest cannot be affected by any other words
not equally clear and distinct, or by inference or argument
from other parts of the will.
Upon the foregoing considerations it must be held that the
applicant is entitled to the entire residue of the estate of
her husband, free from any limitation or trust.
Precatory Words in wills are discussed at length in the note to
Estate of Whitcomb, 2 Cof. Pro. Dec. 282. The tendency of the
decisions is to construe the first gift as a fee, and subsequent words
which appear to be repugnant as merely precatory or as expressive
of a subordinate intent which must fail as an attempt to deprive
the estate given of its legal attributes: Allen v. Herlinger, 219 Pa.
56, 123 Am. St. Eep. 617, 67 Atl. 907. And words of command
addressed by a testator to devisees are as ineffectual to reduce a fee
to an estate for life as -precatory or explanatory words: Estate of
Hale, 2 Cof. Pro. Dee, 191.
If aji Estate in Fee is Devised in One Clause of a Will in clear and
decisive terms, it cannot ordinarily be cut down or taken away by
raising a mere doubt in some subsequent clause, or by some other
inference therefrom: Piatt v. Brannan, 34 Colo. 125, 114 Am. St. Rep.
147; Gannon v. Albright, 183 Mo. 238, 105 Am. St. Eep 471; Sevier
V. Woodson, 205 Mo. 202, 120 Am. St. Rep. 728. However, a devise
in fee may be restricted by subsequent words in a will: Hill v.
Gianelli, 221 111. 286, 112 Am. St. Rep. 182. Thus a devise and
bequest in favor of the testatrix's brother and her nephew and niece,
share and share alike, accompanied by a direction that the share of
the brother be invested for his benefit during his natural life and
for the benefit of his wife and his issue after his death, does not
give the brother a fee in his share, but cuts his estate down to one
for life: Mee v. Gordon, 187 N. Y. 400, 116 Am. St. Eep. 613.
Painter v. Painter. 339
PAINTER V. PAINTER.
[No. 18,351; decided October 1, 1887.]
Surviving Partner — Claim Against Estate. — A surviving partner
cannot collect from the general assets of his partner's estate a debt
due by the decedent to the partnership, without first complying with
section 1585 of the Code of Civil Procedure and ascertaining if the
firm assets will pay the firm debts.
Wills. — Where a Testator Bequeaths His Partnership Interest, in-
eluding "moneys out at interest," when he has during his lifetime
drawn moneys from the firm which it is claimed he merely borrowed
from it, paying interest thereon, it is held that "moneys out at
interest" do not include moneys drawn by him from the firm.
Wills. — Where a Testator Leaves Certain Property to His Children,
and in a subsequent clause provides that his wife shall share with
them in all property, the second clause relates to and is controlled
by the first, and the word "all," underscored in the second clause,
refers to the property specified in the first clause.
Wills. — Inasmuch as the Testator had No Power of Disposition over
his wife's share of the community property, it is held in this case
that she takes half of all the estate as survivor, and half of the
remainder under the wUl, which latter gives her half and the
children half.
Jerome B. Painter died in San Francisco, on February 6,
1883, a resident thereof, and leaving estate therein. He left
a will, dated March 11, 1864, and a codicil, dated March 11,
1874. Theodore P. Painter (testator's brother) and R. B.
Dallam (testator's brother in law) were named as executors,
and Caroline A. Painter (testator's wife) as executrix. On
April 13, 1883, the will and codicil were admitted to probate,
and the above-named persons appointed executors and execu-
trix, and letters testamentary issued to them.
At the time of his death the testator was in partnership
with his brother Theodore, under the firm name of Painter
& Co. Under the first clause of the will (quoted in the
opinion of the court) the testator bequeathed his entire inter-
est in this firm to his surviving partner and to the plaintitf
herein, who was also his brother.
Plaintiff brought this bill against the representatives of
the estate of the decedent, and a portion of the legatees and
340 Coffey's Peobate Decisions, Vol. 4.
devisees, on August 26, 1886. A demurrer for want of
parties, filed on September 6, 1886, was sustained, and on
October 22, 1886, an amended bill was filed, bringing in those
legatees and devisees who were not originally made defend-
ants. The bill alleged the foregoing facts, and also that
since March, 18^, the testator had not withdrawn any money
from the firm of Painter & Co., but had borrowed money from
it from time to time, repaying and borrowing again, and pay-
ing interest, and that at the time of his death he was indebted
to the firm in some thirty-odd thousand dollars.
Plaintiif further alleged that the surviving partner was
liquidating the affairs of the late firm, for the purpose of
accounting for and delivering the interest of the decedent
therein to decedent's representatives, and that in order to
settle the affairs of the firm it is necessary that the amount
due to it by the testator be repaid, but that the representa-
tives claim that said indebtedness was not a loan from the
firm to the testator, but a withdrawal of capital, and that
ademption has been made of the legacy to the plaintiff and
the surviving partner, and that the surviving partner claims
that it is necessary to sell the stock and goodwill of the firm
to repay the amount due hy the decedent's estate to the firm.
Plaintiff claims that b}' the true construction of the will no
ademption has been made, and that plaintiff, as legatee, is
entitled to demand and receive his legacy, and that the real
estate of the decedent should be first sold, and that by a sale
of the partnership assets plaintiff's legacy will be wholly
defeated ; hence he asks for an injunction and a construction
of the will.
The first clause of the codicil provided that the testator's
children should share alike in certain specified property. The
second clause of the codicil provided that testator's wife
should share with his sons, and they with her, "in all prop-
erty, she one-half and they all the other one-half equally
among them." By the fifth clause of testator's will (made
ten years before the codicil), he made certain bequests to the
Protestant Orphan Asylum and certain relatives, other than
his wife and children. The decedent's estate was community
property.
Painter v. Painter. 341
E. J. Pringle, for the complainant.
Warren Olney, for the executors.
Selden S. Wright, for the minors.
B. A. Hayne, for Protestant Orphan Asylum.
Seth Mann, for certain other defendants.
COFFEY , J. (sitting by consent in place of Hearden, J.)
This is a suit in equity brought to obtain a construction of
the will of Jerome B. Painter, deceased. The plaintiff also
asks that the surviving member of the firm of Painter & Co.
be enjoined and restrained from selling assets of the firm
claimed to have been bequeathed by the will to the plaintiff,
and for a general marshaling of the assets of the estate of J.
B. Painter, and of the partnership of Painter & Co. ; also for
an accounting of the assets and liabilities of the firm, and of
all debts due to the firm, and moneys of the firm out at inter-
est, and of the respective interests of the several partners
of the firm, and for a complete adjustment and settlement
thereof; and for a sale of certain described real estate, and
that the interest of the said Jerome B. Painter therein be
applied toward the repayment of the amount claimed to be
due by him to the firm.
The paragraph of the will upon which the complaint is
based is as follows :
1st. "I give and bequeath to my brothers, J. Milton
Painter and Theodore P. Painter, all my share, right, title
and interest of and in and to the co-partnership of Painter
& Company, the stock thereof, its business, good will, and all
interest of whatsoever nature connected with them as part-
ners (except real estate), debts due us, and moneys out at
interest, for their own use and benefit ; upon the express con-
dition that they assume all debts standing against the con-
cern, and pay off that certain mortgage on property S. W.
corner of Washington and Sansome streets."
It is claimed on behalf of complainant that when Jerome B.
Painter died he was indebted to his firm in the sum of $33,000,
or thereabouts. This claim and all the other allegations of
342 Coffey's Probate Decisions, Vol. 4.
the complaint, after admitting the execution of the will, are
all denied by the different defendants, and it is asserted that
the subject matter of the claim having been adjudicated, it
is no longer open for consideration by this court. The action
in which that ajljudication is asserted to have been made is
entitled Theodore P. Painter, Plaintiff, v. The Estate of J.
B. Painter, Deceased, R. B. Dallam, Executor, and Caroline
A. Painter, Executrix of the Estate of J. B. Painter, De-
ceased, and J. M. Painter, Defendants, No. 9,964, 68 Cal.
395, 9 Pac. 450.
In response to this claim, counsel for plaintiff here con-
tends that that cause was not between the same parties; it is
not in that sense "the law of this case"; it is only authority
so far as the facts are similar ; and that the only effect of that
decision was that the suit was premature. To resolve this
question, we must consider what the supreme court decided
in that case. In that case Theodore P. Painter, now a de-
fendant, as executor, was plaintiff, as surviving partner. J.
M. Painter, now the plaintiff in this case, was originally a
defendant, but the action was dismissed as to him.
The best statement of what the supreme court decided is
in its own language, which reads as follows :
"The plaintiff, at the time of the death of the decedent,
Jerome B. Painter, against whose estate and the executors of
whose will this action was brought, was his partner, doing
business under the firm name of Painter & Co. J. B. Painter
died on the sixth day of February, 1883, leaving a will, which
was admitted to probate on the 13th of April of the same
year. The will was of date March 11, 1864, a codicil being
added thereto ten years after.
"The plaintiff, by the will, was named one of the executors.
He was also made a legatee thereunder, and appropriated to
his own use, it seems, without waiting for the probation of
the will, the property claimed by him as a legacy.
"Afterward the will was admitted to probate, and he and
R. B. Dallam and Caroline A. Painter qualified as executors
and executrix under it. An inventory of the estate was made,
sworn to, and filed. The decedent's estate, as appraised, was
of the value of $82,713.94, consisting of real estate to the
amount of $75,000, and personal property valued at $4,615.94.
Painter v. Painter. 313
The interest of the estate of the deceased in the said partner-
ship property and assets of the firm of Painter & Co. are in
the inventory valued separately at $4,152.94; this was made
under section 1445, Code of Civil Procedure.
"Under section 1585, Code of Civil Procedure, the interest
of a decedent in a partnership must be included in the in-
ventory of his estate, and be appraised as other property. The
surviving partner must settle the affairs of the partnership
without delay, and account with the executor or administra-
tor, and pay over such balances as may from time to time be
payable to him in right of the deceased. But that duty plain-
tiff, as surviving partner, did not perform. He took posses-
sion of all the assets of his decedent in the partnership, claim-
ing them as a special legacy under the will, and propounded
a claim for many thousand dollars against his decedent's
estate, which claim consisted of monej's which his decedent,
as partner, had drawn of the partnership funds in excess of
that which the plaintiff had drawn. It appears, however,
that the partnership was solvent, and the decedent's share
of its assets at his death sufficient to pay this debt to the
brothers, executor and partner, and still leave due the estate
the sum of $4,615.94, as per the inventory.
"But the contention of the plaintiff was that he had a right
to all the decedent's interest in the partnership assets, abso-
lutely, and that the amount of the decedent's overdrafts on
the partnership funds must be paid to him by the general
estate, even although, as shown, the decedent's interest in
those assets exceeded his liabilities thereto."
"This claim was not allowed by the judge to whom it was
presented. Thereupon this action was commenced, and a
second amended complaint being demurred to and the de-
murrer sustained, and plaintiff declining further to plead,
judgment passed for the defendants, and the plaintiff ap-
pealed.
"Without closing up the partnership affairs and striking
a balance, or settling with decedent's estate upon that basis,
plaintiff took all the partnership assets, and now desires the
estate of his brother, from its general assets, to pay him near
$58,000, when his decedent's interest in the partnership assets
would more than satisfy this debt, which it is claimed he
344 Coffey's Probate Decisions, Vol. 4,
owed the partnersliip. In this action the construction of
the terms of decedent's will is not pertinent to the issue. The
only question here is this: Can a surviving partner collect
from the general assets of his partner's estate a debt due by
the decedent to ^he partnership without first complying Avith
section 1585 of the Code of Civil Procedure, and ascertaining
if the partnership's assets will pay the partnership debts? In
this case the pleadings admit that no such procedure was had,
and that the decedent's share of the partnership assets will
more than pay all his debts thereto.
"The judgment and order should be affirmed": 9 West
Coast Rep. 305 ; 68 Cal. 395, 9 Pac. 450.
It seems to me that the opinion above quoted constitutes the
law of this case. The principal parties here in this case and
in that are simply transposed, but their interests are identi-
cal. Theodore having presented, as surviving partner, his
claim against the estate, and having been defeated, now J.
Milton Painter comes in and asks this court to do that which
was denied to Theodore. Upon the principles laid down by
the supreme court in the opinion above quoted, this cannot
be done. This c^urt, now sitting in equity, is confined to the
duty of construing this will, and a duty more difficult to dis-
charge has not as yet fallen to the lot of the judge now pre-
siding in this case. As I have examined again and again this
will and the arguments of counsel, I have been very much
struck with the force of the remark made upon the hearing
by one of the counsel, that it would be impossible for the
court to come to a satisfactory conclusion as to what is meant
by the different provisions, and that while the testator may
have been one of the sharpest and shrewdest business men in
San Francisco, when he engaged in the work of framing his
own will he was clearly out of his element. In attempting
by his own efforts, unaided bj' those qualified by superior
skill in such a task, to simplify the settlement of his estate, he
contrived most maladroitly to effect a contrary purpose.
After an unusually protracted period of deliberation, the
conclusions that I have reached may be stated :
1. Under the will the plaintiff and Theodore P. Painter
take the testator's interests in the firm of Painter & Co. as
described in clause first of the will; that is, "all my share,
Estate op Douglass. 345
right, title and interest of, in and to the co-partnership of
Painter & Co., the stock thereof, its business, good will, and
all interests of whatsoever nature connected with them as
partners (except real estate), debts due us and moneys out
at interest, for their own use and benefit; upon the express
condition that they assume all debts standing against the
concern, and pay off that certain mortgage on property S.
W. corner Washington and Sansome streets." The words
underlined in the will, "moneys out at interest," do not, in
my opinion, include what testator had drawn from the firm.
2. The second clause of the codicil relates to and is con-
trolled by the first, and the word "all" (underscored), in
the second clause, refers to the property specified in the first
clause.
3. Inasmuch as the testator had no power of disposition
over his wife's share of the community property, it must be
held that she takes half of all as survivor, and half of the
remainder under the will : Payne v, Payne, 18 Cal. 301 ; Mor-
rison V. Bowman, 29 Cal. 346 ; Estate of Frey, 52 Cal. 660.
4. Clause 5 of the will is not revoked by the codicil.
It follows, therefore, that the prayer for an injunction and
for a marshaling of assets, etc., must be denied, and it is so
ordered.
In the Matter op the Estate op J. M. DOUGLASS, De-
ceased.
[No. 30,053; decided November 30, 1904.]
Inventory — Affidavit of Executor. — The failure of an executor to
affix his affidavit to an inventory of the estate does not render the
inventory of no effect.
Inventory — Filing Copy in Case of Loss. — In this case an order
was made that a copy of the inventory of the estate be filed nunc
pro tunc in lieu of the original inventory and appraisement, but
prior to the entry of the order the original inventory was restored
to the files.
Motion to file copy for lost record.
Charles F. Hanlon, for William Jay Smith.
346 Coffey's Probate Decisions, Vol. 4.
COFFEY, J. William Jay Smith, on June 16, 1904, was
appointed an appraiser along with Joseph M. Quay and
Homer S. King, to make a new appraisement of this estate.
He met his fellow-appraisers at Wells, Fargo & Co, 's Bank.
W. J. Douglass and R. L. Douglass, executors and F. M,
Huffaker, their attorney, were present and were asked by
William Jay Smith to exhibit any property they had belong-
ing to the estate. The executors and their attorney stated
to this board of appraisers that there was no property in
California and exhibited nothing. The code requires the ap-
praisers to appraise the property exhibited, viz.: "Sec. 1445.
Their oath 'that they will truly, honestly and impartially ap-
praise the property exhibited to them according to the best
of their knowledge and ability.' "
Mr. Huffaker, on August 15, 1904 filed an alleged inventory
which he prepared and caused this second board of appraisers
to sign. It stated that the appraisers qualified on the same
day. It set forth that the executors reported to them that
all the property of J. M. Douglass was in the state of Nevada,
and that there wa^ no estate in California. The executors
signed such a statement in the inventory and the appraisers
reported in the same inventory this allegation of the execu-
tors.
Thereafter, on September 16, 1904, the court made the
following order:
" (Filed September 21, 1904.)
" [Title of Court and Cause.]
"The court having heard testimony and having examined the
records in the above-entitled matter; and it appearing to the
court that there are assets belonging to the above-entitled
estate which do not appear in and which have not been ap-
praised as appears by the inventory and appraisement on file
herein, which appraisement was made by Homer S. King,
Joseph M. Quay and William Jay Smith, the duly appointed
and qualified appraisers of the said estate.
"It is hereby ordered that said appraisers make and return
to this court a new and further appraisement of all the assets
of said estate and especially of all the money and property
mentioned in the petition for probate of authenticated will
Estate of Douglass. 347
on file herein, and that a copy of this order be served upon
each of said appraisers.
"Dated September 16, 1904.
"J. V. COFFEY,
"Judge of the Superior Court."
This order was regular and proper.
Held: If the first is in proper form, and the second in-
volves no additions or changes, it is mere surplusage; but it
may often occur from the discovery of other property and
from various other causes, that a second or further inven-
tory and appraisement is desirable. In all such cases the
court, under the powers conferred upon it, may, we have no
doubt, inform itself by means of a new or further inventory
and appraisement of the true condition of the estate: Phelan
V. Smith, 100 Cal. 169, 34 Pac. 667.
The affidavit of the executors to the new inventory ordered
by the court could not be obtained, but it is not necessary.
Held: Section 1449 of the Code of Civil Procedure does
make it the duty of the executor or administrator to indorse
upon or annex to the inventory, after it is completed by the
appraisers, an affidavit to the general effect that the inventory
contains a true statement of all the property of the decedent
of which he has any knowledge, and of all claims which the
decedent had against him, but in our opinion this affidavit
is not necessary to give a legal existence to the inventory
itself. An inventory may be said to be completed when the
work of the appraisers has been concluded, and the instrument
showing the result of their labors has been signed and de-
livered by them. The purpose of the statute in requiring the
affidavit mentioned in section 1449 of the Code of Civil Pro-
cedure is to furnish an additional assurance that the inven-
tory contains a full statement of all the property of the estate
known to the executor or administrator, and also to obtain
his solemn admission that he is properly chargeable in his
accounts with all the property that is described in the in-
ventory ; and the court may, upon its own motion, or upon
the application of any person interested in the estate, compel
the executor or administrator to comply with this section ; but
the failure of the executor or administrator to discharge this
duty would not render the inventory, properly signed and
348 Coffey's Probate Decisions, Vol. 4.
delivered by the appraisers, of no effect as an inventory: In
re Lux's Estate, 100 Cal. 601, 602, 35 Pac. 341.
Now the first thing that William Jay Smith did was to try
to carry out this order of September 80, 1904. He called on
Homer S. King^ his fellow-appraiser, who was the president
of Wells, Fargo & Co. 's Bank, and asked him to disclose the
amount of cash, stocks and bonds in his bank's hands on
January 17, 1904, the date of the death of J. M. Douglass.
King refused. He asked then if any of these properties were
then or still in the bank ; Mr. King refused this and all other
information. And remember, that Homer S. King qualified
under oath as an appraiser on August 15, 1904, in which he
took an oath that he would "truly, honestly and impartially
appraise the property exhibited to them according to the
best of their (his) knowledge and ability." He did not
deny his ability, nor his knowledge; he had control of these
moneys, stocks and bonds when Douglass died and must have
known all about them. He is subject to just criticism for
accepting and qualifying as an officer of the court to perform
a duty that he would not perform and which he prevented
his fellow-appraisers from performing. Accordingly William
Jay Smith applied to the clerk for the old inventory and also
caused King, Shaw and Bannan, the first board of appraisers
to be cited, to reveal its contents, and caused a subpoena duces
tecum to be served upon Mr. Lipman, the cashier of Wells,
Fargo & Co.'s Bank.
This move reveale^ the following facts : that a petition was
filed by the executors on February 9, 1904, which stated that
J. M. Douglass did leave an estate in San Francisco, Califor-
nia, viz. :
Cash $16,927.26
12,200 shares Spring Valley Water stock 410,550.00
49 bonds Spring Valley Water stock 49,000. 00
2200 shares Contra Costa Water stock 87,000.00
And in Eldorado County, Cal., an undeveloped
mining claim in Placerville, called "Mary-
land Quartz Mine," value 100.00
Total $613,577.26
Estate of Douglass. 349
That the court in appointing the executors found the same
facts.
That the books produced by Lipman showed that the fol-
lowiiig properties were in the bank, viz. :
1904
Jan. 17, Cash $13,522.20
Jan. 21, Deposit 273 . 45
Jan. 29, Deposit 2,832 . 55
Total cash $16,927.20
49 bonds and 12,200 shares Spring Valley and 2200 shares
Contra Costa Water stock.
The book in the assessor's office shows that the assessor's
deputy copied out of the first inventory filed herein the fol-
lowing assets in San Francisco, viz. :
$ 30,053.00 Douglass, J. M. May 4, 04 Inventory, p. 131.
27,080.70 Money.
47,000.00 49 bonds Spring Valley Water Co.
488,000.00 12,200 shares C. S. Valley Water Co.
50,000.00 2200 shares Contra Costa Water Co.
$612,080.76
No R. E.
Lipman testified that the executors drew out all the moneys
and stocks of J. M. Douglass from the bank under their power
as California executors on March 1, 1904, and immediately
redeposited the same on March 1, 1904. in same bank, but in
their own names as executors. The property so remained
until May 2, 1904, when the executors drew out all the cash
($27,082.76) and all the stocks and bonds and gave their
receipt on all of same to the bank as executors.
On the same day, May 2, 1904, the attorney for the execu-
tors suggested three names to the judge of this court as candi-
dates for the positions of appraisers and the court appointed
them the same day, May 2, 1904, viz. : B. F. Shaw, William
Bannan and Homer S. King.
On May 4, 1004, a meeting was had at the office of Shaw
and Douglass, 316 Pine street. There attended Shaw, Ban-
350 Coffey's Probate Decisions, Vol. 4.
nan, two of the appraisers; F. M. Huffaker, the attorney;
R. L. Douglass and William J. Douglass, executors. These
two appraisers qualified before James Mason, notary, and
they received from Huffaker the inventory and appraisement
which listed in detailed items all the cash and bonds and
stock as stated fn the assessor's book and also the mine in
Placerville. They signed this appraisement, and it was filed
by Huffaker on May 4, 1904, and the clerk of this court en-
tered in his register of actions the following record of its
filing and its contents, viz. :
•'1904.
May 4. Inventory and appraisement ($612,082.70) filed."
The court thereupon examined this inventory and found it
did not conform in some respects to the rules, and John J.
Boyle wrote to Mr. Huffaker to that effect, to Virginia City,
and Mr. Huffaker replied by letter to Mr, Boyle on May 13,
1904, and said:
"Virginia City, Nevada, May 13, 1904.
"John J. Boyle, Esq., Deputy Clerk Dept. 9, San Francisco,
Cal.
"Dear Sir: .... I do not claim infallibility, and if
under the circumstances, the Court deems the inventory im-
perfect in form, I would ask leave to withdraw it, in order
to have the imperfection corrected. I always prefer to have
the three appraisers sign an inventory, but where an estate
is so completely disposed of, as the will of Douglass disposes
of his, I have considered two sufficient as the law provides,
without reference to the rules. However, as my only desire
is to conform to the law, and this is a matter that can be
readily corrected, if I am permitted to withdraw the present
inventory, I will have the executors return another. It seems
to me this will be a direct method of remedying the suggested
defect, if it shall be considered a defect. In fact I appre-
ciate the purpose of having the reason for non-action of one
appraiser appear, in cases where it is applicable, but allow
me to suggest that it strikes me, the non-acting appraiser
should assign his reason and not the acting appraisers for
Estate op Douglass, 351
him, as he might at any time come in and say the reason
assigned by the acting ones was not correct. Then where
would the Court and inventory be? This is merely as the
matter impresses me. Call Judge Coffey's attention to this
and I will cheerfully endeavor to have an acceptable inven-
tory presented,"
Thereupon on May 14, 1904, Mr. Boyle replied, and on
May 17, 1904, Mr, Huffaker wrote Mr. Boyle, among other
things, viz, :
"Virginia City, Nevada, May 17, 1904.
"Dear Sir: Replying to yours of the 14th inst. in re Doug-
lass Estate, permit me to say that I have never understood
in my practice, either in Nevada or California, in each of
which I have had considerable practice in probate during the
past 15 years, that as an attorney in an estate in the matter
of appointing appraisers I was, in suggesting proper persons
to the Court, doing other than aiding the Court to select
proper persons, and I trust in this estate no misunderstand-
ing has resulted therefrom.
"Sec. 129, C. C, P,, is but the common statute of the dif-
ferent states, and a very necessary one, and no one is a greater
stickler for conformity to rules of court than I, and I am
not intending by anj^ means to convey the idea that I have
any complaint about any of your rules.
"They are all right when the conditions to which they
apply exist, but there is a well-recognized maxim in the law,
that when the reason for any rule ceases, the rule itself ceases.
But in the matter in hand the simple question is the inven-
tory, and as your statute requires the Court to approve or
reject an inventory for incorrectness, and the time not hav-
ing elapsed for filing an inventory, what objection is there
to withdrawing that incorrect inventory and filing a correct
one?"
Afterward, on June 16, 1904, Mr. Huffaker appeared in
this court and obtained an order vacating the order of May
2, 1904, appointing Shaw, Bannan and King appraisers, and
also an order appointing King, Quay and Smith appraisers.
The order of withdrawal in handwriting of Mr. Huffaker
except the signature of the judge, read as follows:
352 Coffey's Probate Decisions, Vol. 4,
"[Title of Court and Cause.]
"Ordered that the executors of said estate be and they are
hereby permitted to withdraw from the above case the inven-
tory heretofore filed by the executors.
"Done in open court this June 14, 1904.
"J. V. COFFEY,
"Judge."
Afterward, on October 29, 1904, the court made the follow-
ing order:
"[Title of Court and Cause.]
"On motion of Charles F. Hanlon, attorney for William
Jay Smith, one of the appraisers appointed herein on June
16, 1904, with Homer S. King and Joseph M. Quay, constitut-
ing a board of three appraisers to reappraise the property
of this estate, and it appearing that an examination of the
first inventory filed herein on May 4, 1904, is desired by the
said William Jay Smith as one of the said appraisers, and
it also appearing that said original inventory and appraise-
ment was on or about the 14th day of June, 1904, withdrawn
temporarily from the files of this court by said executors or
by F. M. Huffaker, the attorney for the said executors ap-
pointed herein, and has not yet been returned to this court
or replaced among the files, it is ordered and decreed that
said executors, W. J. Douglass and R. L. Douglass and said
F. M. Huffaker, their attorney, be and they are hereby
ordered to return forthwith to this court and place among
the said files and papers of this estate the said inventor^'- and
appraisement withdrawn by them or some of them as afore-
said.
"J. V. COFFEY,
"Done in open court this 29th day of October, 1904."
That order was at once served upon Mr. Huffaker and the
executors in Nevada, to which Mr. Huffaker wrote the follow-
ing reply:
"Charles F. Hanlon, Esq., San Francisco, Cal.
"Dear Sir: Having just returned from the East I find a
note from you with copy of order of Judge Coffey dated
October 31, to return a purported inventory of the Douglass
Estate for Appraiser Smith's examination. The order re-
Estate of Douglass. 353
cites 'withdrawn temporarily.' This is not correct. Judge
Coffey remarked when I asked to withdraw it, that it had
never been tiled within the meaning of the statute, and by
order set aside the order appointing appraisers and appointed
other appraisers on his own motion, and directed the County
Clerk to hand over tl*e papers, who said to me it is in the
office. I went to Ernest Hawley, the deputy, and said the
Judge having appointed other appraisers, says give the in-
ventory to me. Hawley says I want something to show for it.
I said draw up what you desire and I will have the Judge
sign it, which was done. This is all there was to it except
TIawley remarked the whole thing will have to be done over
again. I replied yes. Had you understood this I do not
think you would have applied for any such order as Mr.
Smith could have examined it if found without any such
order and under the circumstances 1 would take it as a
favor if you would have your motion and order set aside,
when we can get the appraisers together and let them make
an inventory as the law directs. If you do not do this, I will
endeavor to find the paper as I took no care of it deeming it
stricken from the files, and send it to the clerk as the order
requires.
"I shall be pleased to hear from you.
"Yours truly,
"F. M. HUFFAKER."
Now section 1045 of the Code of Civil Procedure reads as
follows: "If an original pleading or paper be lost, the court
may authorize a copy thereof to be filed and used instead of
the original."
And in Sichler v. Look, 93 Cal. 608, 29 Pac. 220, it was
held: "When jurisdiction has once been acquired, it is not
lost by a failure to preserve a record of the acts by which
it was acquired, and the acts of the court in exercising its
inherent power to amend its record, or to supply a lost record,
will be presumed to have been properly exercised."
And in Kuowlton v. Mackenzie, 110 Cal. 190, 42 Pac. 580,
it was held : ' ' Upon tlie order of the court made in the
present case, the substituted papers are entitled to the same
weight as would be the originals."
Prob. Dec, Vol. IV — 23
351 Coffey's Probate Decisions, Vol. 4.
For the reasons and upon the authorities hereinabove set
forth, it is ordered that the copy of inventory be filed nunc
pre tunc as of May 4, 1904, in lieu of the original inventory
and appraisement.
Prior to the entry of the foregoing order to file copy, the
original inventory was restored to the files by the attorney
for the executors.
The Inventory of an Estate must be signed by the appraisers, and
the executor or administrator should take and subscribe an oath that
it contains a true statement of all the estate "which has come to hia
knowledge and possession, and particularly of all moneys belonging to
the decedent, and of all just claims of the decedent against the affi-
ant. The oath must be indorsed upon or annexed to the inventory."
The object of requiring the affidavit is probably not to impart validity
to the inventory, but rather to furnish an additional assurance that
it contains all the property within the knowledge or possession of the
affiant, and to obtain his solemn admission that he is properly charge-
able in his account with the property which has been listed. An
inventory may be said to be complete when the work of the apprais-
ers has been concluded, and the instrument showing the results of
their labors has been signed and delivered by them. The failure of
the executor or administrator to take and subscribe the statutory oath
does not render the writing, properly signed and delivered by the
appraisers, of no effect as an inventory: 1 Koss on Probate Law and
Practice. 427.
In the Matter of the Estate of JOHN J. O'GORMAN,
Deceased.
[No. 2007; decided November 15, 1906.]
Will Contest — Motion to Make More Certain. — A motion to make
the statement of contest and opposition to the probate of a will
more definite and certain by setting out the several grounds
separately will be denied as not the proper procedure for taking
advantage of the defective pleading.
Motion to make will contest more certain,
Charles W. Reed and Emil Pohli, for motion, on behalf
of the proponent.
J. A. Kennedy and John J. McDonald, for the respondent.
Estate of 'Gorman. 355
COFFEY, J. The proponent moves to require the con-
testants to make their statement of contest and opposition
on file herein more definite and certain, by setting out their
several grounds of contest and opposition separately.
The motion is based upon section 427 of the Code of Civil
Procedure, which reads:
"The plaintiff may unite several causes of act'ioii in the
same complaint, where they all arise out of: 1. Contracts,
express or implied; 2. Claims to recover specific real prop-
erty, with or without damages for the withholding thereof,
or for waste committed thereon, and the rents and profits
of the same ; 3. Claims to recover specific personal prop-
erty, with or without damages for the withholding thereof;
4. Claims against a trustee hy virtue of a contract or by
operation of law; 5. Injuries to character; 6. Injuries to
person; 7. Injuries to property. The causes of action so
united must all belong to one only of these classes, and must
affect aU the parties to the action, and not require differ-
ent places of trial, and must be separately stated; but an
action for malicious arrest and prosecution, or either of them,
may be united with the action for either an injury to char-
acter or to the person."
This motion is sought to be supported upon the authority
of City Carpet Works v. Jones, 102 Cal. 510, 36 Pac. 841,
which says that the remedy, in the given case, is "not by a
demurrer, but by a motion to make the pleading more defi-
nite and certain by separating and distinctly stating the dif-
ferent causes of action," and in aid of this conclusion is cited
Pomeroy's Code Remedies, star section 447. The learned
commissioner who wrote this opinion stopped short of a full
quotation. The entire section in Pomeroy reads:
"Although the sections of the codes defining what causes
of action may be united all require in positive terms that
when so joined each must be separately stated, it is settled
by the weight of authority, and seems to be the general rule,
that a violation of this particular requirement is not a ground
of demurrer. This conclusion is based upon the language
of the codes authorizing a demurrer for the reason that causes
of action are improperly united in the complaint or petition.
It is said that this expression only points to the case in which
356 Coffey's Probate Decisions, Vol, 4,
causes of action have been embraced in one pleading which
could not properly be joined; while in the special case under
consideration it is assumed that all the causes of action may
be united, and the only error consists in external form or
manner of their joinder. The remedy is, therefore, not by
a demurrer, buf by a motion to make the pleading more defi-
nite and certain by separating and distinctly stating the
different causes of action. The plaintiff can thus be com-
pelled to amend his complaint or petition, and to state each
cause of action by itself, so that the defendant may deal with
it by answer or demurrer as the nature of the case demands.
It seems to be the settled rule in California, however, that
the defect may properly be taken advantage of by demurrer.'*
The dictum of Pomeroy is dependent upon a section of the
New York Code of Civil Procedure, which is not incorporated
in our code.
The New York section 546, New York Code of Civil Pro-
cedure, reads:
"Where one or more denials or allegations, contained in a
pleading, are so indefinite or uncertain that the precise mean-
ing or application thereof is not apparent, the court may
require the pleading to be made definite and certain, by amend-
ment."
The substance of this section is reproduced in our seventh
subdivision of grounds of demurrer, section 430 of the Code
of Civil Procedure, "that the complaint is ambiguous, un-
intelligible, or uncertain," which provision is absent from
the New York code: See sec. 488, N. Y. Code Civ. Proc.
A comparison of section 430 of the California Code of Civil
Procedure with this last citation will point the distinction
and difference, and show that the California subdivision 7
takes the place of the New York section 546.
This is the settled rule in California, as Pomeroy states
in the final sentence of the paragraph quoted in 102 Cali-
fornia, 510: See Pomeroy 's Code Remedies, 4th ed., 1904,
note 1, page 456.
It follows that the motion should be denied and the de-
murrer sustained, with leave to amend within ten days from
notice.
Estate of Langdon. 357
Estate of NORA LANGDON, Deceased.
[No. 12,346; decided April 20, 1899.]
Wills — Gift to Class. — The residuary clause of tlie will in this case
is construed as making a gift to the persons therein named as a
class.
Fitzgerald & Abbott and T. C. Coogan, for the heirs con-
testant.
W. B. Treadwell, for the petitioners.
COFFEY, J. The final account of the executors herein
and the petition for final distribution of the estate were sub-
mitted together. Ellen Ivers, Robert F. IMullins and James
Mullins filed exceptions to the final account, and an answer
to the petition for distribution. On the hearing, the execu-
tors presented a supplemental account of their transactions
since the date of the final account. No exceptions were taken
to the supplemental account.
The only exception to the account relied on at the hearing
was as to an alleged indebtedness of the ten thousand dollars
from Margaret Irvine to the deceased. The evidence as to
this alleged indebtedness is conflicting; but it is not neces-
sary to make any finding on the subject. The estate is not
in debt and is ready for final distribution, and the indebted-
ness, if it existed, could be distributed with the residue of
the estate, and therefore would constitute no ground for re-
fusing to settle the account. Moreover, as hereinafter stated,
the parties excepting have no interest in the estate, and their
exceptions cannot be considered by the court.
The answer to the petition for distribution does not deny
any of the facts alleged in the petition; but takes issue as
to the construction of the will insisted on by petitioners.
The question involved is as to the construction of the residu-
ary clause — it being contended by the petitioners that the
persons named in that clause take as a class, and that the
survivors therefore take the whole; while the heirs contend
that the residue of the estate was left to those persons indi-
vidually and not as a class; that the share given to Fred
358 Coffey's Probate Decisions, Vol. 4.
Byrne lapsed by his death during the testatrix's lifetime,
and that as to that amount the deceased died intestate.
As the testatrix clearly evinced her intention to dispose
of her whole estate, the will should, if reasonably possible,
be so construedras to avoid an intestacy as to any portion
of her property.
The true construction of the residuary clause is that the
testatrix devised and bequeathed the residue of her estate
to the children of her sister, Margaret Irvine, as a class, and
that the property therefore vests in the survivors of that
class.
To each of her three brothers, two of whom are contestants
here, the testatrix bequeathed the sum of five dollars ($5).
This was equivalent to words of express disinheritance. To
her sister, Ellen Ivers, contestant here, she left a sum, in
trust, however, for her son, and made no provision for her.
This likewise amounts to an express disinheritance. To her
sister Kate Fitzgerald, who does not oppose the petition, she
left six thousand dollars ($6,000). Her only other sister,
iMargaret Irvine, is not mentioned in the will. The persons
named in the residuary clause are the sons of Margaret Ir-
vine, and are described by the testatrix as her nephews.
It would seem clear from these circumstances, that in the
mind of the testatrix her relatives were divided into classes.
Iler brothers she treated as a class to whom she intended to
give no part of her estate. She intended to give nothing to
Ellen Ivers, placing her son in her stead. For her sister
Kate Fitzgerald she made a special provision. In grouping
together the children of Margaret Irvine, the testatrix evi-
dently thought of them as the children of their mother, and
therefore as constituting a class by themselves. According
to the authorities, the gift to them must therefore be held to
have been made to them in that capacity, and especially so
as the plain intention of the testatrix would be defeated
by giving any portion of her estate to these contestants.
An order will therefore be made settling and allowing the
final account as presented, and granting the petition for dis-
tribution.
Estate of Langdon. 359
The Estate of Langdon was before the supreme court in 129 Cal.
451, 62 Pac. 73.
DEVISES AND BEQUESTS TO PERSONS CONSTITUTING A
CLASS.
A Testamentary Gift to a Class Includes every person answering
the description at the testator's death; but when the possession is
postponed to a future period, it includes also all persons coming
within the description before the time to which possession is post-
poned. This is the rule declared by statute in many states. Where
a gift is made simply to two or more individuals, then it is not a
"class," within the meaning of the word as here used. But it some-
times occurs that the will names both the individuals and the class,
in which case courts may experience some difficulty in determining
whether the gift is to the individuals or to the class. Prima facie,
however, a gift to a number of persons designated by name, and
further described by reference to a class to which they belong, is
deemed a distributive gift, rather than a gift to a class. Hence, if
one of the beneficiaries dies before the testator, there is no right of
survivorship to the others. A child conceived before, but not born
until after, the testator's death, or any other period when a dispo-
sition to a class vests in right or in possession, takes, if answering
to the description of the class; 1 Eoss on Probate Law and Practice,
89, 90.
Generally speaking, a gift to a number of persons not named, but
answering a general description, is a gift to them as a class. What
persons constitute the class is to be ascertained when the time comes
at which the gift takes effect: Delinger's Estate, 170 Pa. 104, 32 Atl.
573. Care must be taken to observe whether a gift is in reality one
to a class, or whether it is to specific persons or sets of persons though
designated by some general name, as "children." "In legal language,
the question whether a gift is one to a class depends not upon these
considerations, but upon the mode of gift itself, namely, that it is a
gift of an aggregate sum to a body of persons uncertain in number
at the time of the gift, to be ascertained at a future time, and who
are all to take in equal or in some other definite proportions, the share
of each being dependent for its amount upon the ultimate number of
persons": 1 Jarman on Wills, 232.
Survivorship in a class is usually construed with reference to the
death of the testator, so as to give the representatives of such of
the class as die after the testator the right to a share of the devise
or bequest to the class: Mowatt v. Carow, 7 Paige, 328, 32 Am. Dec.
641. If the gift 'is immediate, this is necessarily so. If the gift is
contingent, survivorship is reckoned from the happening of the con-
tingency. If the gift is vested, with payment postponed until a future
time, survivorship dates from the death of the testator, but members
of the class born after the death of the testator and prior to the
time of distribution may share.
360 Coffey's Probate DECisioifS, Vol. 4.
Where the Gift is Immediate — that is, to take effect in possession
immediately on the testator's death — all children living at the tes-
tator's death take to the exclusion of those born afterward. This
rule la well settled, and arises from the presumption that a will
speaks from the death of the testator: Biggs v. McCarty, 86 Ind. 352,
44 Am. Eep. 320j Worcester v. Worcester, 101 Mass. 128; Viner v.
Francis, 2 Cox, 190; Wood v. McGuire, 15 Ga. 202; Ingraham v.
Ingraham, 169 111. 432, 48 N. E. 561, 49 N. E. 320, and the principal
case. A devise to children generally, not limited to any particular
period, includes those children only who are living at the death of
the testator, the gift being considered an immediate one: Thompson
V. Garwood, 3 Whart. 287, 31 Am. Dec. 502; Loockerman v. McBlair,
6 Gill, 177, 46 Am. Dec. 664; Womack v. Smith, 11 Humph. 478, 54
Am. Dec. 51. Kentucky seems to be an exception among the states
in following this rule, the doctrine there being that unless a will
shows an intent to exclude after-born children they may participate
in the distribution of the testator's estate: Lynn v. Hall, 101 Ky. 738,
72 Am. St. Rep. 439, 43 S. W. 402. This rule in Kentucky is based
upon statute: See Kentucky Stats., sec. 4848.
The will may speak from the date of its execution, however, if
there is a clear intent that it shall so do, in which case the members
of a class who take will be ascertained as of the date of the making
of the will: Morse v. Mason, 11 Allen, 36. The general rule holds
good though there may be a gift over in default of children or in
case children die under age, and this does not have the effect of
enlarging the class: Davidson v. Dallas, 14 Ves. 576; Chasmar v.
Bucken, 37 N. J. Eq. 415.
Where the gift is immediate, and there are no children in being
at the time of the testator's death belonging to the particular class
of beneficiaries, the gift does not lapse, but all children answering
the description born at any time afterward are entitled to take: Weld
V. Bradbury, 2 Vern. 705; Shepherd v. Ingram, 1 Amb. 448. Where
a gift is made of the income of property, only those members of a
class take who were in existence at the death of the testator: In re
Powell, [1898] 1 Ch. 227.
In general, the same rule of construction applies to deeds as to
wills, with the exception that a more liberal construction is given
to wills in favor of persons not born. Hence, a deed to the heirs
of B contemplates the children of B in existence at the date of
the execution and delivery of the deed, and children of B subse-
quently born take no interest thereunder: Tharp v. Yarbrough, 79
Ga. 382, 1] Am. St. Eep. 439, 4 S. E. 915.
Immediate Gift — Children "en Ventre." — Under a devise to all the
children of A, a posthumous child is entitled to take. This was
definitely settled by the case of Doe v. Clarke, 2 H. Black. 399,
where, under a gift to A and to all his children living at his death,
a child born seven months after his death was allowed to take:
See, also, Clarke v. Blake, 2 Ves. 673. The rule is now uniform.
Estate of Langdon. 361
both in England and America. A child is to be considered in being
at a period commencing nine months previous to its birth, and,
where there is no evidence to rebut the presumption, it is conclusive.
"Generally, a child will be considered in being from conception to
the time of its birth in all cases where it will be for the benefit of
such child to be so considered." Hence, a child en ventre sa mere
will be considered as absolutely born in order that it may partici-
pate in a present gift to children who are born: Hall v. Hancock,
15 Pick. 255, 26 Am. Dec, 598; Stedfast v. Nicoll, 3 Johns. Cas. 18;
Barker v. Pearce, 30 Pa. 173, 72 Am. Dec. 691; Laird's Appeal, 85
Pa. 339. But while an unborn child may inherit for its own benefit,
yet it cannot inherit so as to transmit property to others unless it
is actually born alive. "Children in the mother's womb are considered,
in whatever relates to themselves, as if already born; but children
born dead, or in such an early state of pregnancy as to be incapable
of living, although they be not actually dead at the time of their
birth, are considered as if they had never been born or conceived":
Marsellis v. Thalhimer, 2 Paige, 35, 21 Am. Dec. 66.
A will must be construed according to the intention of the testator,
and if it shows a clear intent to exclude children en ventre sa mere,
such children must be denied a right to share in the distribution of
the estate: In re Emery's Estate, 3 Ch. Div. 300; Starling v. Price, 16
Ohio St. 29.
Illegitimate Children. — Generally speaking, a gift to children in-
cludes only those who are legitimate, upon the legal principle that
illegitimate children have no parent and cannot be designated by a
relation they do not sustain. This general rule, however, yields to
that fundamental rule in the interpretation of wills, viz., that every
will should be interpreted in> accordance with the intention of the
testator. Hence, if that intent clearly indicates that illegitimate
children should share in his estate, courts will decree accordingly.
This was so held in Sullivan v. Parker, 113 N. C. 301, 18 S. E. 347,
where the testatrix devised property to "all the children of her
[daughter's] body," and the testatrix, at the time of the making of
the will, was living with her daughter and her supposed husband, by
whom she had had foiir illegitimate children. The same rule was
applied in Ee Harrison, [1894] 1 Ch. 561, the children of testator's
daughter being allowed to share in the estate, although illegitimate,
when the daughter was described as the wife of one H., with whom
she was living to the knowledge of the testator, and by whom she had
had the children in question.
Where children are legitimatized by a subsequent marriage of
their parents, they will be allowed to take, under a statute giving
them such a right: Smith v. Lansing, 24 Misc. Rep. 566, 53 N. Y.
Supp. 633. In England, while children who have been made legitimate
by a subsequent marriage of their parents may take real property
under a will devising property to "children," they cannot take if the
deceased dies intestate: In re Grey's Trusts, [1892] 3 Ch. 88. An
362 Coffey's Probate Decisions, Vol. 4.
illegitimate ohild en ventre sa mere at the date of the testator's death
is not deemed to be in being so as to take a gift which vests at the
death of the testator, although legitimatized by the marriage of its
parents before it was born: In re Corlass, 1 Ch. Div. 460. In such a
case, the estate vested in the children before the marriage, and as
the illegitimate cjtild could not take until legitimatized, and as at
the time it was legitimatized, viz., the date of the marriage, the estate
had alreadj'^ vested, it was of necessity cut out the same as an after-
born child would have been: Smith v. Lansing, 24 Misc. Eep. 566,
53 N. Y. Supp. G33.
Where Distribution Postponed until Termination of Precedent In-
terest. — Where a particular estate or interest is carved out, with a
gift over to the children of the person taking that interest, or the
children of any other person, such gift will embrace not only the
persons living at the death of the testator, but all who may subse-
quently come into existence before the period of distribution. This
rule is also firmly established and universally recognized. It is only
in the application of the rule that any difficulty arises: Ayton v.
Ayton, 1 Cox, 327; Moore v. Dimond, 5 R. I. 121; .Jones' Appeal, 48
Conn. 60; Webster v. Welton, 53 Conn. 183, 1 Atl. 633; Handberry v.
Doolittle, 38 111. 202; Ridgeway v. Underwood, 67 111. 419; Teed v.
Morton, 60 N, Y. 502; Thompson v. Garwood, 3 Whart. 287, 31 Am.
Dec. 502.
A testator may, however, intend to confine his gift to those living
at his death, though its possession is postponed, and in such a case
the testator's intent will control. The law favors the vesting of es-
tates, and if consistent with the testator's expressed intent, a will
should be so construed as to vest the property at the time of the
testator's death. Hence, where a testator devised his property to his
widow for life, and at her death to be divided among "my surviving
children and their heirs," these last words were deemed to give a
vested interest to the children who were in existence at the tes-
tator's death: Grimmer v. Friederich, 164 111. 245, 45 N. E. 498.
Again, in a will in which a devise to a class was expressly limited
to those of such class "then living," it was held that this limitation
would apply to all other classes mentioned in the will, though not
specifically so applied by the will itself: Dougherty v. Thompson, 27
Misc. Rep. 738, 59 N. Y. Supp. 608. The mere charging an estate
with certain terms such as the paying of certain annuities will not
have the effect of letting in after-born children to share in the orig-
inal gift: Singleton v. Gilbert, 1 Cox, 68. In Pennsylvania, it is held
that a provision in a will giving the share of a deceased member of
a class to his children would have the effect of taking the case
out of the rule that a gift to a class goes to the persons constituting
the class at the time the gift takes effect, upon the principle that
if the testator by his will shows how he intended a particular class
should be made up, the general rules governing a gift to a class
Estate of Langdon. 363
must yield to the testator's expressed intention: In re Denlinger'g
Estate, 170 Pa. 104, 32 Atl. 573.
A large number of the cases involving a gift over after a precedent
estate or interest comprise devises to one for life with a remainder
over to a certain class of children. Where the remainder is to the
children of the life tenant, or to the children of anyone aside from
the testator, the gift will include all children who answer the de-
scription at the time of the death of the life tenant, when the pre-
cedent estate terminates, whether such children were born before or
after the death of the testator: Thompson v. Garwood, 3 Whart. 287,
31 Am. Dec. 502; Coggins v. Flythe, 113 N. C. 102, 18 S. E. 96;
McLain v. Howald, 120 Mich. 274, 77 Am. St. Eep. 597, 79 N. W. 182.
The rule that such a gift to a class will include all members of that
class who may be born before the particular estate falls in will apply
to gifts disposing of remainders previously created, as well as to gifts
creating remainders. For example, where A devises a life estate to
B, remainder to C, and C dies leaving a will disposing of his remainder
to the children of D, all the children of D who may be born before
the termination of B's life estate are entitled to share in the re-
mainder, and the gift is not limited to the children of D living at
C's death: Britton v. Miller, 63 N. C. 268.
The question arises in the gift of a life estate with a remainder over
■whether the remaindermen take vested or contingent interests. In
either event, if the distribution is postponed, all who come within the
description at the time the gift is to be distributed will be included
as within the intention of the testator, for the question as to who
will eventually take must not be confounded with the question when
the estate given vests in the donees. The vesting in enjoyment and
the vesting in interest are very different propositions: See McLain
v. Rowland, 120 Mich. 274, 77 Am. St. Rep. 597, 79 N. W. 182; Hall
V. Hall, 123 Mass. 124; Doe v. Considine, 6 Wall. 458. It is the pol-
icy of the law that estates should vest at the earliest possible moment,
and no remainder will be construed contingent which may, consistently
with the intention, be deemed vested: Hovey v. Nellis, 98 Mich. 374,
57 N. W. 255. It must be admitted that the cases are somewhat con-
fusing on this point, failing to discriminate between a devise which
vests immediately, the enjoyment of which only is postponed, and a
devise which is contingent, because both the vesting in interest and
enjoyment are postponed. In both cases all who answer the descrip-
tion of Ihe class to whom the devise is made at the time the gift
vests in enjoyment are entitled to take. But in the first case the
period of survivorship is ascertained at the death of the testator, the
class opening to let in all who are bom subsequently and prior to the
time of distribution. In the second case, the period of survivorship is
ascertained at the time the gift is to be distributed, and all those who
die before that time are completely cut out, since their interest is
contingent on surviving until the period of distribution. The neces-
sity of keexiing this distinction in mind will be apparent later.
364 Coffey's Probate Decisions, Vol. 4.
Where the devise is of a life estate with a remainder over to the
children of the life tenant, or to the children of anyone else, and the
gift is to the children generally, then the estate in remainder vests at
the death of the testator in the children then, in being, subject to
open and let in those afterward born before the period of distribution:
Dingley v. Dingley, 5 Mass. 535; McComb v. McComb, 96 Va. 779, 32
S. E. 453; Hamlett v. Hamlett, 12 Leigh, 350; Denny v. Allen, 1 Pick.
147; Annable v. Patch, 3 Pick. 360; Campbell v. Stokes, 142 N. Y. 23,
36 N. E. 811. This rule was held to apply only to real property in
Dingley v. Dingley, 5 Mass. 535, since there can be no remainder in
personal property which may vest and afterward open to let in after-
born children; hence the interest in personal property must be con-
tingent until the time provided for the distribution of it, in order that
they may take. This limitation of the rule to real property was
denied in Yeaton v. Eoberts, 28 N. H. 459. It is not now the rule in
Massachusetts: Shattuck v. Stedman, 2 Pick. 4G8; and there would
appear to be no reason for distinguishing the two classes of propcrt}-.
The use of the word "children" in a general devise makes the persons
to take as certain as they would have been had the names of the re-
maindermen been given: Mercantile Bank v. Ballard, 83 Ky. 481, 4
Am. St. Rep. 160. A remainder is not made contingent by the fact
that the interest of the remainderman may be devested by his death be-
fore the death of the life tenant: Ducker v. Burnham, 146 111. 9, 37
Am. St. Rep. 135, 34 N. E. 558. See, also, Canfield v. Fallon, 26 Misc.
Rep. 345, 57 N. Y. Supp. 149. In the case we have just been consider-
ing, where the interest of the remaindermen vests at the death of the
testator, survivorship is determined as of that date, and hence, if
any member of the class dies before the life tenant, his share de-
volves upon his appropriate representatives, and it is not essential
that he should survive until the period of distribution: Hatfield v.
Sohier, 114 Mass. 48. The interest of a member of a class which
becomes vested on the death of the testator is not devested by
the death of such member before the death of the life tenant,
but such share goes to his heirs or representatives: Balen v. You-
mans, 20 N. Y. Supp. 657. A vested remainder may be absolutely
or defeasibly vested. In the case we are considering it is of the
latter character, and is devested pro tanto upon the birth of other
children, and, where there is a substituted devise, it may be wholly
devested on the death of the party in favor of the substituted devisee.
But, in the absence of any substituted devise, a member's share will,
upon his death, descend to his heirs or representatives: L'Etourneau v.
Henquenet, 89 Mich. 428, 28 Am. St. Rep. 310, 50 N. W. 1077; Budd
V. Haines, 52 N. J. Eq. 488, 29 Atl. 170. The remainder vested in the
children is not such a vested estate as can be sold for the payment
of the debts of one child dying before the time for distribution has
arrived: Corey v. Springer, 138 Ind. 506, 37 N. E. 322.
It may appear from the context of the will that the testator did
not intend that the remainders should be vested, but that they should
Estate of Langdon. 365
be contingent on the happening of some event. Hence, where a tes-
tator gave a share of the income of his estate to his wife, and gave
the residue of his estate to his children, the executor to hold until
the youngest became of age, at which time the executor should di-
vide the estate remaining equally between "the children then living,"
the court held that the children took contingent remainders; that
until the youngest became of age it could not be determined who
were the then living children, and therefore the testator could not
have intended to give vested remainders: Wilhelm v. Calder, 102 Iowa,
342, 71 N. W. 214. A devise of a life estate to a son, with remainder
over to the son's "living children," includes the son's children living
at the termination of the life estate: Inge v. Jones, 109 Ala. 175, 19
South. 435. In a devise to the testator's wife for life, and at her
death to such of his children as shall then be living, the benefit does
not purport to be conferred on the children as individuals named, but
as survivors, and this indicates that an immediate vesting is not in-
tended. The gift is, therefore, contingent: Ducker v. Burnham, 146
111. 9, 37 Am. St. Rep. 125, 34 N. E. 558. A limitation to "my surviv-
ing legatees," after the termination of a conditional fee, means the
legatees who are surviving at the period of distribution, and not those
who survive the testator: Selman v. Robertson, 46 S. C. 262, 24 S. E.
187. This has not always been the rule, however. Indeed, the early
English cases quite generally held that "surviving children" and
similar terms referred to the death of the testator as the period of
survivorship, and not to the time of distribution: See Stringer v.
Phillips, 1 Eq. Cas. Abr. 293; Rose d. Vere v. Hill, 3 Burr. 1881; Roe-
buck v. Dean, 2 Ves. 265. The English rule is now definitely settled,
and a gift to "surviving children" refers to the period of distribution
as the time for determining the class: Cripps v. Wolcott, 4 Madd. 11;
Neathway v. Reed, 3 De Gex, M. & G. 18. See, also, Coveny v. Mc-
Laughlin, 148 Mass. 576, 20 N. E. 165, 2 L. R. A. 448; Teed v. Morton,
60 N. Y. 502; Delaney v. McCormack, 88 N. Y. 174. And, gen-
erally, the use of the words "surviving children," as applied to a gift
which is to take effect after the termination of a precedent estate,
refers to children who are surviving at the time of distribution, their
interest being contingent until that time. But if coupled with the
words "surviving children" are the words "and their heirs," these
last words indicate that the testator had in mind that in case any
of his children should die after his death, before coming into the en-
joyment of the estate, the heirs of such child should not be cut off,
and the children take vested interests at the date of the testator's
death: Grimmer v. Friederich, 164 111. 245, 45 N. E. 498. As already
stated, the principles applicable to the vesting of devises of real estate
apply, generally, to gifts of personalty. Where, however, there is no
original gift of personal property, but only a direction to pay at a
future time, the vesting in interest and enjoyment is postponed until
the time of payment: Carper v. Growl, 1-19 111, 465, 36 N. E. 1040;
Delaney v. McCormack, 88 N. Y. 174. The rule to determine whether
366 Coffey's Probate Decisions, Vol. 4.
a gift to come into enjoyment in the future is a present vested gift
or a contingent one is this, as laid down by the Illinois supreme court:
If the time of distribution be annexed to the substance of the gift
and be personal to the legatee or devisee, the gift is contingent; if
the time of payment merely is postponed, because of the position of
the fund or the convenience of the estate, the gift is vested and its
enjoyment only is^ deferred: Ducker v. Burnham, 146 111. 9, 37 Am. St.
Kep."l35, 34 N. E. 558; Carper v. Crowl, 149 111. 465, 36 N. E. 1040.
See, also, Delaney v. McCormack, 88 N. Y. 183. This rule may often-
times be difficult of application, but if properly applied will reconcile
most of the eases relating to gifts to a class where the period of dis-
tribution is postponed.
The Precedent Estate may be One in Trust instead of for life, and
the same results follow as in a life estate. Where property is given
in trust to pay the proceeds to some one during his life and at his
death to certain children as a class, all children living at the time of
the termination of the life interest take, whether in being at the death
of the testator or not: Evans' Estate, 155 Pa. 646, 26 Atl. 739; Kent v.
Church of St. Michael, 136 N. Y. 10, 32 Am. St. Eep. 693, 32 N. E. 704,
18 L. E. A. 331. It is immaterial whether the precedent estate is
one for life, a conditional fee, or in trust — the same rules in general
apply: Selman v. Robertson, 46 S. C. 262, 24 S. E. 187; Mercantile
Bank v. Ballard, 83 Ky. 481, 4 Am. St. Rep. 160. Where property is
devised in trust for the accomplishment of certain purposes, and,
when accomplished, the property to be divided between the members
of a class, the members of that class in being at the death of the
testator take vested interests in the estate, the enjoyment only being
postponed: Marsh v. Hoyt, 161 Mass. 459, 37 N. E. 454. In such a
case, the time for payment merely is postponed for the convenience
of the estate: Adams v. Woolman, 50 N. J. Eq. 516, 26 Atl. 451. The
children in being at the death of the testator take vested interests,
subject to open and let in after-born children: Levy v. Levy, 79 Hun,
290, 29 N. Y. Supp. 384; Kent v. Church of St. Michael, 136 N. Y.
10, 32 Am. St. Eep. 693, 32 N. E. 704, 18 L. E. A. 331; Campbell v.
Stokes, 142 N. Y. 23, 36 N. E. 811; Evans' Estate, 155 Pa. 646, 26 Atl.
739; Man's Estate, 160 Pa. 609, 28 Atl. 939. The interest to follow
the trust estate may be contingent and not vested, the same as
where a life estate intervenes: McBride v. Smyth, 54 Pa. 245. "The
testator has the right to fix the period of vesting to suit his wishes.
He can postpone the period and make the vesting depend upon
a contingency, and if he does, with reasonable certainty, the estate
will not vest until the happening of this contingency. And whether
the testator intended to give a vested estate or to make it depend upon
a future contingency depends in a great measure upon the language
and phraseology of the will itself": Cherbonnier v. Goodwin, 79
Md. 55, 28 Atl. 894. In this case property was given in trust to be
invested and the income to be used in the maintenance and support
of the son of the testatrix, and after his death the trust estate to be
Estate of Langdon. 367
divided equally among the children which the son might have after
the execution of the will. The son had two children born after the
execution of the will, one of whom died in the lifetime of its father.
The court held that the interest bequeathed was contingent, that
the legacy could not vest until the son's death, and since at that time
there was but one child living, the entire estate vested in him both
in interest and possession. In this case it will be noticed that there
was no gift aside from the direction to pay at a future time. In all
such cases the gift is contingent on the happening of the event, and
only those members of a class who answer the description at that
time can take.
Statutes have been passed in several states similar to section 863
of the California Civil Code. These acts declare that trusts in real
property vest the whole estate in the trustees, the beneficiaries taking
no interest or estate in the property, but merely a right to enforce
the trust. These acts probably do not charge in any way the rights
of beneficiaries under a will. Even though they take no estate so-
called, yet their interests are as substantial as if they did, and their
interests will be vested or contingent in the same manner as if such
interests were estates, and will be subject to the same rules, so far as
their vested or contingent nature is concerned.
Where Distribution is Postponed Until a Given Age. — Where there is
a gift to children as a class, and the share of each child is made pay-
able on the attainment of a given age, the period of distribution is
the time when the first child becomes entitled to receive his share..
The gift will apply to those who are living at the death of the testa-
tor, and to those born before the first child attains the requisite age,
and all children coming into existence after that period are excluded:
Whi thread v. Lord St. John, 10 Ves. 152; Clarke v. Clarke, 8 Sim.
59; Dawson v. Oliver-Massey, 2 Ch. Div. 753; Hubbard v. Lloyd, 6
Cush. 522, 53 Am. Dec. 55; Handberry v. Doolittle, 38 111. 202; An-
drews V. Partington, 3 Brown Ch. 401. This rule fixing the period
of distribution at the time the first child becomes entitled to his
share is generally denominated a rule of convenience, and springs
from the desire of courts to include as many persons as possible
within the testator's bounty consistent with convenience: See Bar-
rington v. Tristam, 6 Ves. 348. This rule does not apply to a gift
of income which is payable periodically: In re Wenmoth's Estate, 37
Ch. Div. 266. This rule is frequently obliged to be construed in con-
junction with a previous rule noticed, viz., tlmt a gift following an
estate for life is to be distributed upon the termination of the pre-
cedent estate. In such a case, the period of distribution is ascer-
tained by the event which happens last. For example: A devise to
A for life and then to the children of A, who attain twenty-one; if
A dies before any of his children become twenty-one, distribution
will take place when the eldest attains that age; and, if the eldest
becomes of age before the death of A, A's death will mark the period
of distribution. In any event, no child born after the time of distri-
368 Coffey's Probate Decisions, Vol. 4.
bution has been reached will be allowed to participate in the gift:
Clarke v. Clarke, 8 Sim. 59; Beckton v. Barton, 27 Beav. 99; Parsons
V. Justice, 34 Beav. 598.
Where distribution is directed to be made generally when children
reach twenty-one, the testator's intent is clear; it is certain that as
soon as any child attains twenty-one he is to have his share, and the
division must take place at that time to the exclusion of after-born
children. But a devise may be made to the children of A, to be paid
when the youngest reaches a certain age. It is clearly the testator's
intention to provide for any and all of A's children. Such a gift
should, therefore, include all the children which A may have, whether
born before or after the death of the testator. The youngest child
means the youngest whenever born, and not the youngest living
at the death of the testator, and it is accordingly held that the
period of distribution is the time when the youngest, whenever born,
attains the specified age: See Fosdick v. Fosdick, 6 Allen, 41; Hughes
v. Hughes, 3 Brown Ch. 352, 434; Lasby v. Crewson, 21 Out. 93.
Where the words of distribution were "and when and so soon as all
and every his said grandchildren should have attained twenty-one," a
distribution was denied merely because the youngest for the time
being had become of age, since the gift was intended to include all
grandchildren, whenever born: Mainwaring v. Beevor, 8 Hare, 44.
It would seem that where a testator manifests an obvious intention
to provide for all of his grandchildren, and designates the period of
distribution as when the youngest arrives at a certain age, the only
logical conclusion is that the youngest means the youngest whenever
born, and until the possibility of having grandchildren becomes ex-
tinct it is impossible to determine who the youngest may be. Hence,
if the period for determining that event is too remote, the gift to
grandchildren is void for remoteness. In most of the cases involv-
ing this point it will be found that there are expressions in the will
of the testator which rendered his intent more or less ambiguous,
and there was in consequence an opportunity for construction of the
will. And in case of ambiguity a will may always be construed so
as to render it valid. As is stated elsewhere, the rule against per-
petuities is not a rule of construction to determine intent. It is a
rule which defeats intent. And only when the will is ambiguous can
the principle be applied that, of two constructions, the one which
renders a will valid will be adopted in preference to one which ren-
ders it invalid. In the case of McBride's Estate, 152 Pa. 192, 25
Atl. 513, the testator used ambiguous language which rendered it uncer-
tain what his intent was. This ambiguity furnished the pretext for
construction, and that construction was adopted which upheld the
validity of the will. The same is true of Butler v. Butler, 3 Barb. Ch.
310, though here the word "eldest," and not "youngest," was used.
In Wheeler v. Fellowes, 52 Conn. 238, the desire of the testator to
provide for all his grandchildren was unquestioned. And j^et the court
erroneously applied the rule against perpetuities as one of construe-
Estate of Langdon. 369
"tion, and said: "We think it must be the youngest living at the death
of the testator. The other view would render this part of the codicil
obnoxious to the statute against perpetuities." A similar error was
committed in Cogan v. McCabe, 23 Misc. Rep. 739, 53 N. Y. Supp.
48, which is a remarkable case, in that it construes the testator's
will, apparently, directly contrary to his expressed and obvious
intention. Hard cases are likely to play havoc with legal principles,
and a court will often strain many points in order to avoid a
hardship. Notwithstanding these cases, it is submitted that where
the intent of the testator is to include all children or grandchildren
of a class, whenever born, the use of the term "youngest" refers to
the youngest of such children whenever born, otherwise the testator's
bounty may be limited to an extent never contemplated by him,
and a new will is in reality made, to which it is altogether doubtful
whether he would have subscribed.
It is important to ascertain whether a gift to be distributed upon
children becoming a certain age is vested or contingent. Where
there is an actual present gift, and the period of distribution merely
is postponed, the children take a vested estate, though it may open
to let in after-born children: Emerson v. Cutler, 14 Pick. 108.
And where property is devised in trust to hold for certain chil-
dren, the children take vested interests, though the possession of
the property is postponed until arrival at a definite age: Winslow
V. Goodwin, 7 Met. 363. The law here, as elsewhere, favors the
vesting of estates, and where there is no special intent manifest
to the contrary, survivorship in a gift to a class is referred to the
time of the testator's death, though distribution is postponed to a
given age, and though members of the class born after the death of
the testator and prior to the period of distribution, are entitled to'
share in the estate devised: Hempstead v. Dickson, 20 111. 194, 71
Am. Dee. 260. An intetit to postpone the vesting of an estate must
be clear and manifest in order to overthrow the established rule that
estates vest at the earliest possible moment, which is ordinarily at
the death of the testator. It was said in Kelly v. Gouce, 49 111. App.
82, that "a distinction must be drawn between a gift to such chil-
dren as shall arrive at legal age, and a gift to children to be paid
when or as they arrive at legal age. In the first instance, the gift
is contingent, because it cannot be known at the death of the tes-
tator whether a donee will be found at the proper period of time to
take, while in the latter instance the donee is known at the time of
testator's death, the gift settled upon him, and its payment only de-
ferred. When the donee is known, the gift is said to vest in inter-
est at once, and, though such donee does not survive to take posses-
sion of the subject matter of the gift, his interest and right of pos-
session pass, upon his death, to his legal representatives. When no
gift is found beyond a mere direction to distribute or divide at a
certain period stated, or upon the happening of some event, the rule
Prob. Dec, Vol. IV— 24
370 Coffey's Probate Decisions, Vol. 4.
is different": See Parker v. Leach, 66 N. H. 416, 31 Atl. 19; Canfield v.
FiiUon, 26 Misc. Eep. 345, 57 N. Y. Supp. 149, where a large number of
the New York cases are collected. Where there is any serious doubt
whether a legacy is vested or contingent, the doubt should be
resolved in favor of vesting, if such conclusion can be reached by
a fair and reasonable construction of the whole will. But a clear
intent to the contrary cannot be avoided. The tendency to favor
the vesting of estates has been so strong that the Pennsylvania
courts held that a direction in a will that an estate should be
divided "among his children which should be then alive" gave a
vested interest to the children: Manderson v. Lukens, 23 Pa. 31, 62
Am. Dec. 312. This was clearly a direct alteration of the testator's
intention, which would not be permitted to-day, and the case itself
is, in effect, overruled by Rudy's Estate, 185 Pa. 359, 64 Am. St. Rep.
654, 39 Atl. 968. See, also, Cascaden's Estate, 153 Pa. 172, 25 Atl.
1075.
The rule for ascertaining when a gift, the possession of which is
postponed, is vested or contingent was stated in Coggins' Appeal, 124
Pa. 10, 10 Am. St. Eep. 565, 16 Atl. 579, as follows: "Where real or
personal estate is devised or bequeathed to such children as shall at-
tain a given age, or the children who shall sustain a certain character,
or do a peculiar act, or be living at a certain time, without any
distinct gift to the whole class preceding such restrictive description,
so that the uncertain event forms part of the description of the dev-
isee or legatee, the interest so devised is contingent on account of
the person. For until the age is attained, the character is sustained,
or the act is performed, the person is unascertained; there is no
person answering the description of the person who is to take as dev-
isee or legatee." This rule, as taken from Smith on Executory In-
terests, is clear cut and well defined, though its application to am-
biguous wills may oftentimes be difficult. Where there is no gift
aside from the direction to divide at a future time, only those take
who answer the description at that time, the gift is contingent, and
the period of vesting and of distribution are one and the same: Locke
V. Lamb, L. E. 4 Eq. 372; Clarke v. Clarke, 8 Sim. 59.
This rule relating to a direction to divide has these qualifications,
that where the terms of a bequest import a gift, and also a direction
to pay at a subsequent time, the legacy vests immediately at the
death of the testator: Manice v. Manice, 43 N. Y. 369. Again,
Avhere interest is given to the legatee with a direction for the pay-
ment of the principal at a future time, the payment of interest indi-
cates an intent on the part of the testator to give the principal to
the legatee, and his interest will vest in the testator's death: War-
i»er v. Durant, 76 N. Y. 136. The entire interest must be payable to
the legatee in order to establish an intention that the principal
should vest in him at once. Also if the legacy is given over in the
event of the death of the legatee, there can be no presumption that
a present gift was intended; Smith v. Edwards, 88 N. Y. 92.
Estate of Langdon. 371
There is OTie class of eases in which it is wholly immaterial what
language the testator has used relative to a gift payable in the
future — the vested or contingent nature of the bequest is unimportant.
This class relates to bequests of specific sums of money to each in-
dividual of a class. In such a case, only those answering the de-
scription of the class at the time of the death of the testator can
take. And this is true, whether the distribution is to take place at
a future time or not, and whether the beneficiaries are given a
vested or a contingent interest. For example, a bequest of fifty
dollars each to the children of A, to be paid when the youngest at-
tains the age of twenty-one, includes only those children of A who
are living at the date of the testator's death. If all the children of
A were to be admitted, whenever born, the aggregate gift might be
very largely increased, and the entire residuary estate must needs
be kept intact to provide for future unborn children until the pos-
sibility of increase is extinct. The extreme inconvenience of post-
poning distribution under such circumstances is obvious, and to
nvoid such inconvenience the rule stated above is adopted. Where
the gift is aggregate to the entire class, an undue inconvenience does
not result, and the rule is otherwise. As was said in the leading case
on this point (Eingrose v. Bramham, 2 Cox, 384), in speaking of
the difference between an aggregate sum to a class and a specific
sum to each individual of a class, where a gross sum of three hun-
dred and fifty pounds sterling was given to children, to be paid to
them in equal shares at twenty-one, "there was no inconvenience in
postponing the vesting of those shares until some one of them at-
tained that age, so as to let in the children born in the meantime,
because there was nothing to do but to set apart the sum of three
hundred and fifty pounds sterling, and the residue of the testator's
personal estate might be immediately divided; for whether more or
fewer children divided the thre% hundred and fifty pounds sterling,
still they could have but three hundred and fifty pounds sterling
amongst them. But here there are distinct legacies of fifty pounds
sterling to each of the children, and therefore, if I am to let in all
the children of these two persons born at any future time, I must
postpone the distribution of the testator's personal estate until the
death of [the parents] for I can never divide the residue until I
know how many legacies of fifty pounds sterling are payable"; See,
also, Mann v. Thompson, Kay, 638; Storrs v. Benbow, 2 Mylne & K.
46. And it follows as a corollary from this proposition that if there
are no children belonging to the class at the death of the testator, the
legacies fail altogether: Eogers v. Mutch, 10 Ch. Div. 25.
Application of the Rule Against Perpetuities. — IMost diflBcult ques-
tions arise when a gift to a class, otherwise valid, is rendered invalid
by reason of the too remote vesting of the interests. The courts have
striven to uphold gifts by testators almost to the limit of nullifying
the rule against perpetuities, and have even sought to make of that
rule, what it was never designed to be, a rule of constructioa. As
372 Coffey's Probate Decisions, Vol. 4.
was stated by Gray, in his work on the Eule Against Perpetuities,
section 629: "The rule against perpetuities is not a rule of construc-
tion, but a peremptory command of law. It is not, like a rule of
construction, a test, more or less artificial, to determine intention.
Its object is to defeat intention. Therefore, every provision in a
will or settlement is to be construed as if the rule did not exist, and
then to the provision so construed the rule is to be remorselessly ap-
plied": See Dungannon v. Smith, 12 Clark & F. 546. If the rule has
any legitimate place in the construction of devises, it is only where
the intent of the testator has been expressed in language so ambig-
uous that it is fairly and reasonably capable of two constructions and
his real meaning is obscured, then that construction will be adopted
which avoids the rule and renders the gift valid. As was said in
McBride's Estate, 152 Pa. 192, 25 Atl. 513: "The presumption is that
the testator knew and endeavored to comply with the law applicable
to the trust he created, and, if his will fairly admits of a construction
which sustains the trust and gives the proceeds of it to his intended
beneficiaries, it should be adopted." In Ee Stiekney's Will, 85 Md.
79, 60 Am. St. Rep. 308, 36 Atl. 654, 35 L. R. A. 693, it was said that
when language is fairly capable of two constructions, one of which
will produce a lawful result, and the other on© that is bad for re-
moteness, the former should be adopted rather than the latter. But
language otherwise clear is not to be rendered ambiguous and capable
of two constructions merely by the fact that its obvious meaning
violates the rule against perpetuities.
The rule was well stated by Lord Selborne in Pearks v. Mosely, 5
App. Cas. 714: "You do not import the law of remoteness into the
construction of the instrument, by which you investigate the ex-
pressed intention of the testator. You take his words, and endeavor
to arrive at their meaning, exactly in the same manner as if there
had been no such law, and as if tlft' whole intention expressed by
the words could lawfully take effect. I do not mean that, in dealing
with words which are obscure and ambiguous, weight, even in ques-
tions of remoteness, may not sometimes be given to the consideration
that it is better to effectuate than to destroy the intention; but I do
say that, if the construction of the words is one about which a court
would have no doubt, though there was no law of remoteness, that
construction cannot be altered, or wrested to something different, for
the purpose of escaping from the consequences of that law."
Again, it must be borne in mind that the rule against per|)etuities
is concerned only with the commencing of the estate, and, if it com-
mences or vests in interest within the prescribed period, it is good,
but if it is contingent and will not vest until a time later than that
allowed by the statute the estate is void in its creation: Johnston's
Estate, 185 Pa. 179, 64 Am. St. Eep. 621, 39 Atl. 879.
The general rule may be stated that a gift to a class upon a con-
tingency which may happen beyond the limits of the rule against
perpetuities is bad. The important point to determine first in ascer-
Estate of Langdon. 373
taining -whether a future gift violates the rule is whether the gift
vests in interest upon the death of the testator, or at least within
the limits of the rule, or whether it does not vest in interest until
the final period of distribution, which may be beyond the period al-
lowed by the rule for the vesting of estates. In the latter case, that
is, where the gift is purely contingent, there can be no question what-
ever — the rule is violated, and the gift is void. And the possibility
of the gift being void as to one member of the class renders it void
as to all. The ordinary example of such a case is where a devise
is made to such children as reach the age of twenty-five. Here the
attainment of the age forms a part of the description of the devisee —
the vesting is suspended until the requisite age is reached. And,
since the age limit is a period of time greater than that allowed by
the statute, the gift is void. The leading case on this entire subject
is Leake v. Eobinsbn, 2 Meriv. 364. This was a gift to trustees to
pay the income to A during his life, and after his death to pay the
income to A's children, and to divide the corpus of the property
among such of A's children as shall attain the age of twenty-five,
and, if all but one child should die before their share became pay-
able, then the whole to the surviving child. It is plain from this
language that the grandchildren were given contingent interests, no
share vesting until the child entitled to it should become twenty-
five. The court, among other things, said: "There is no direct gift
to any of these classes of persons. It is only through the medium
of directions given to the trustees that we can ascertain the benefits
intended for them I think none were to take vested interests
before the specified period. The attainment of twenty-five is neces-
sary to entitle any child to claim a transfer. It is not the enjoy-
ment that is postponed, for there is no antecedent gift, as there
was in the case of May v. Wood, of which the enjoyment could be
postponed. The direction to pay is the gift, and that gift is only
to attach to children that shall attain twenty-five After-born
children were to be let in, and the vesting was not to take place till
twenty-five. The consequence is, that it might not take place till
more than twenty-one years after a life or lives in being at the death
of the testator. It was not at all disputed that the bequests must
for that reason be wholly void, unless the court can distinguish be-
tween the children born before, and those born after, the testator's
death. Upon what ground can that distinction rest? Not upon the
intention of the testator; for we have already ascertained that all
are included in the description he has given of the objects of his
bounty. And all who are included in it were equally capable of tak-
ing. It is the period of vesting, and not the description of the
legatees, that produces the incapacity The bequests in question
are not made to individuals, but to classes, and what 1 have to de-
termine is, whether the class can take. I must make a new will for
the testator if I split into portions his general bequest to the class,
and say that because the rule of law forbids his intention from oper-
374 Coffey's Probate Decisions, Vol. 4.
ating in favor of the whole class, I will make his bequests what he
never intended them to be," This case settled permanently the ques-
tion as applied to contingent interests, that is, where the vesting in
interest was contingent: See, also, Eldred v. Meek, 183 111. 26, 75 Am.
St. Eep. 86, 55 N. E. 536; Coggins' Appeal, 124 Pa. 10, 10 Am. St.
Eep. 565, 16 Atl. 579; Sehweneke v. Haffner, 22 Misc. Eep. 293, 50
N. Y. Supp. 165;^Johnston's Estate, 185 Pa. 179, 64 Am. St. Eep. 621,
39 Atl. 879; Smith v. Edwards, 88 N. Y. 92; Sehettler v. Smith, 41 N.
Y. 334. The vesting may be suspended until the arrival of children
at a certain age, though the issue take in case of death upon their
attaining the same age, and the limitation over is only to take effect
in case of death under that age without issue: Coggins' Appeal, 124
Pa. 10, 10 Am. St. Eep. 565, 16 Atl. 579. A gift to the "body heirs"
of three certain children, share and share alike, is a gift to a class
that cannot be determined until the death of all three children. "Until
all these contingencies happen, there is no person or persons in whom
the estate can vest in fee simple absolute." The gift is void as
suspending the power of alienation for three lives in being instead
of two: Trufant v. Nunneley, 106 Mich. 554, 64 N. W. 469. A large
number of the cases belong to this class, viz., where the interest
does not vest until a future contingency occurs, which may be at
a period too remote to satisfy the rule against perpetuities. In
Bull V. Pritchard, 1 Euss. 213, property was bequeathed to trustees
to pay the income to his daughter for life, and after her death to
pay the principal until all and every her children who should live to
attain twenty-three years of age, share and share alike. In declaring
the entire gift void, the court said: "It is clear that those children
alone of the daughter were to take who attained the age of twenty-
three years. The attainment of that age was necessary to vest an
interest in any of them; and all who attained that age were to take.
Consequently, the vesting of the interests might not take place till
more than twenty-one years after a life in being. The court cannot
distinguish between the children born in the lifetime of the testator
and those who were or might be born afterward; and therefore the
limitations over are too remote": See Stuart v. Cockerell, 7 Eq. 363;
Bull V. Pritchard, 5 Hare, 567; Seaman v. Wood, 22 Beav. 591; Webster
V. Boddington, 26 Beav. 128; Newman v. Newman, 10 Sim. 51; Blight
V. Hartnoll, 19 Ch. Div. 294; Dodd v. Wake, 8 Sim. 615; Merlin v.
Belgrave, 25 Beav. 125; Eowland v. Towney, 26 Beav. 67.
Under a bequest in trust to accumulate until grandchildren as a
class respectively attain the age of thirty-five years, when the prop-
erty is to be divided, the grandchildren take contingent interests,
which do not vest until they respectively arrive at the age of thirty-
five years; consequently, the gift is void for remoteness: Hall v. Hall,
123 Mass. 120. A devise in trust for all the children of A, to be
divided equally between them, the shares of such children to become
vested interests in and to be paid, assigned, and transferred to them
respectively, as and when they should attain their respectiye ages of
Estate of Langdon. 375
twentj'-five years, was held to give a contingent interest, and, as it
might not vest until after lives in being and twenty-one years, it was
void: Comport v. Austen, 12 Sim. 218.
The cases seem to be harmonious on this particular question that
where the interest is not to vest in the members of a class until at a
period which may offend the rule against perpetuities, the gift is
void as to the entire class. Children in being at the death of the
testator whose share might vest within the prescribed period cannot
be segregated from the rest of the class and be allowed to take. The
gift, being void as to one, is of necessity void as to all: See Blagrove
V. Hancock, 16 Sim. 371. In Tosdick v. Fosdick, 6 Allen, 41, it was
said: "This rule is imperative and perfectly well established. An
executory devise either of real or personal estate is good, if limited
to vest within the compass of a life or lives in being, and twenty-one
years afterward. But the limitation, in order to be valid, must be
so made that the estate, or whatever is devised or bequeathed, not
only may, but must necessarily, vest within the prescribed period.
If, by any possibility, the vesting may be postponed beyond this
period, the limitation over will be void." In this case the testatrix
bequeathed her estate to trustees to keep invested and to accumulate
until her youngest grandchild should, if living, attain the age of
twenty-one years, and then pay over annually the income to them
with provisions for the future disposition of the corpus of the estate.
It was held that no portion of the gift might vest until twenty-two
years beyond lives in being, and hence was void.
Attempts have been made to obviate the effect of this rule and to
allow those members of a class who were in being at the testator's
death to share in the gift. Indeed, the statement has been made
broadly that where, by reason of letting in members of a class com-
ing into existence after the testator's death, the limits of perpetuity
may be exceeded, a more restricted rule may be applied. This re-
striction is wholly untrue as applied to gifts which do not vest in
interest until a future period. No doubt can possibly exist In such
a case. No member of the class living at the testator's death can
possibly take unless he fulfills the description at the time of the
vesting in interest, and you must await such time to determine
whether he fulfills the description. Suppose a testator devised prop-
erty to such of his grandchildren as were practicing law twenty-five
years hence. At his death five grandchildren were living, none of
whom answered the description. It is certain that the testator did
not intend that the five members of the class living at his death
should take, irrespective of their calling. He meant to include only
those who answered the particular description, that is, practicing
lawyers twenty-five years after his death. Until that time it cannot
be known who are members of the class. An interest in the sift
cannot vest until that time. And as the period is too remote to satisfy
the rule, the gift is void as to all the class. A more restricted rule
■ cannot be adopted and the devise given to the grandchildren living
376 Coffey's Probate Decisions, Vol. 4.
at his death. The same is true where the gift is to such grand-
children as attain the age of twenty-five. The gift is not to vest
until that time, and, that time being greater than the rule allows, the
gift is void: See Lawrence v. Smith, 163 111. 149, 45 N. E. 259.
Any apparent exception to this rule will be found on examination
to be a case of vesting in interest immediately on the testator's death:
See Kevern v. Williams, 5 Sim. 171, which is often cited as sustaining
this rule. Here, however, the vesting in interest was immediate.
Elliott v. Elliott, 12 Sim. 276, is wrongly decided unless the interest
given was a vested one.
One exception must be noted to the rule that contingent interests
which may not vest within the time allowed by the statute are void
as violating the rule against perpetuities. This occurs with reference
to legal remainders in realty. A contingent legal remainder must
vest, if it vests at all, upon the termination of the precedent life
estate. Hence, where an estate is devised to A for life, and on his
death to such of his children as reach twenty-five, the limitation is a
contingent remainder and is not too remote. A's children may not
reach twenty-five until more than twenty-one years after his death;
but unless they have reached twenty-five at A's death they will never
take, since a remainder must take effect upon the termination of the
precedent estate, if at all. If A's children were to take the legal
remainder when they reached five years of age, the result would be
the same, for that age must be reached before A's death or the re-
mainder cannot vest. If the remainder relates to equitable interests
in the first case above, it is void as being too remote, because it may
not vest in interest within lives in being and twenty-one years: See
Testing v. Allen, 12 Mees. & W. 279; Abbiss v. Burney, 17 Ch. Div.
211.
Rule Against Perpetuities — Vested Gifts. — A more difficult problem
arises when the devise is vested and the possession only is deferred
until a period which violates the rule against perpetuities. As al-
ready stated, the rule against perpetuities is concerned only with
the commencement of estates, and if the estate vests indefeasibly
in interest within the time allowed, although possession may be post-
poned, the gift is not void as violating the rule. This was brought
out in the case of Loring v. Blake, 98 Mass. 253. Here an estate
was devised to trustees to be set apart equally for the children of
the testatrix, to pay the income to each child during life, and after
its death to hold for the use of its children, and their heirs, if no
husband or wife of such child should survive, in which case the
income was to be paid to such surviving husband or wife during
his or her life. In commenting on the interest^ the children took,
and whether the limitation violated the rule against perpetuities,
the court said: "It was possible that a child of Mrs. Blake [the tes-
tatrix] might marry a person not in being at the time of her decease;
and that such person might be the survivor of the marriage. In
that case, a limitation of her estate, not to take effect until after
Estate of Langdon. 377
the decease of such unborn person, would be in violation of the rule
against perpetuities; because it would not be supported by the
definite measure of a life or lives in being and twenty-one years.
By Mrs. Blake's will the ultimate enjoyment and possession of the
estate is thus postponed. The rule, however, regards, not the pos-
session, but the title or absolute right. If that vest within the
prescribed period, the rule is satisfied The enjoyment is post-
poned to enable the surviving husband or wife to receive the income
during life; but the title, the absolute interest in remainder, is fixed
at the decease of the child of Mrs. Sally Blake": See Whelan v.
Eeilly, 3 W. Va. 597. The case of Davenport v. Harris, 3 Grant Cas.
164, might, from its opinion, indicate that the time of vesting in
possession was the determining period. But the terms of the will
indicate that the gift did not vest in interest until a too remote
period. In the Massachusetts case cited above it must be noted that
the children who were to take were determined, both in number and
by name, absolutely upon the death of the person to whom the first
life estate was given, the proportion of each one's share was in
consequence determined at the same time, and within the limits of
the rule. In other words, the share of each member of the class
vested in interest indefeasibly within the proper period. In order
that a vested share, which is not to come into possession until a future
time, shall escape the consequences of the rule against perpetuities,
tiie vesting must be indefeasible, and the fact that an invalid gift
over is made does not render it indefeasible, the devesting gift over
being bad. For example, take a gift to the children of A, to be
divided equally among them when they attain the age of twenty-one.
The gift vests immediately in such of A's children as are living at
the testator's death, but, since it is subject to open and let in children
born before any one of A's children becomes twenty-one, the gift is
defeasible to the extent of the shares taken by the after-born children.
Since, however, the number of A's children is determined at his death,
the amount of each of such child's share will be determined within
one life in being, and naturally the gift is valid. On the other hand,
take a gift to the grandchildren of A, to be divided equally among
them when they become twenty-one. It is clear that if there are
any grandchildren living at the death of A they would take vested
interests, if they took anything, since the gift is not contingent on
their reaching twenty-one. A, however, may have children born after
the death of the testator. These subsequently born children may have
children born after the death of A, and after the death of everyone
else who was alive at the testator's death. Hence it may not be
determined how many belong to the class of grandchildren, and into
how many shares the estate must be divided until more than twenty-
one years after lives in being. The grandchildren living at the tes-
tator's death take vested interests, if anything, but they are not
indefeasible interests, but are subject to be devested pro tanto upon
the birth of other grandchildren. The amount that each grandchild.
378 Coffey's Probate Decisions, Vol. 4.
is to take cannot be ascertained until all the children of A are dead,
and to await that time may postpone the period of indefeasible
vesting of a particular share beyond the time allowed. The gift,
therefore, to all the grandchildren would be void, and the shares of
those living at the death of the testator would suffer the same fate
as the shares of those subsequently born.
In the case of Matter of Charlier, 22 N. Y. App. Div. 71, 47 N. Y.
Supp. 818, it was held that, where a gift vested indefeasibly in the
members of a class within the statutory period, a further direction
that their shares should not be paid until a certain time was un-
objectionable: See Vanderpoel v. Loew, 112 N. Y. 167, 19 N. E. 481.
In Earnshaw v. Daly, 1 App. D. C. 218, where the gift to children
was vested in interest at the death of the testator, and the amount
of each share was determined at that time, a postponement of enjoy-
ment until the youngest of the children became of age did not violate
the rule against perpetuities. Wilber v. Wilber, 45 App. Div. 158,
60 N. Y. Supp. 1064, recognizes the distinction we have attempted to
draw. It was admitted that the grandchildren living would take
vested interests, but the interests were not indefeasibly vested, for
"if the title in the living grandchild was subject to open and let in
after-born grandchildren, then the power of alienation would, by
possibility, be suspended. It would be uncertain, until the death of
the two sons, whether there would be other grandchildren." The
language here specifies the power of alienation, instead of the rule
against perpetuities, but, so far as this point is concerned, it is im-
material whether we say that the rule against perpetuities was violated
because the interest could not vest indefeasibly until all members
of the class were determined, or whether we say that the power of
alienation was suspended, since, until all the members of the class
were determined, it would not be known who could convey a complete
title. We must not, however, fail to grasp this fundamental distinc-
tion between the rule against perpetuities and the rule against re-
straints on alienation, viz., that the rule against perpetuities is
concerned only with the vesting of estates, and, if estates are in-
defeasibly vested, the rule against perpetuities, or more properly
speaking, the rule against remoteness of vesting, is not violated. The
rule against restraints on alienation is concerned only with the
alienability of estates, and not at all with their vesting. Estates may
be vested indefeasibly in various persons, and yet the estate may be
tied up and be inalienable because these same persons cannot combine
and transfer a perfect title. It is the confusion of these two rules
that is responsible to some extent for the apparent chaos in the
decisions on this subject. An example will put the matter more
clearly. Suppose a devise is made of property in trust to pay the
rents and profits in a certain way, and to divide the estate among
the children of A when they shall attain the age of twenty-one. It
seems plain that, if A has any children living at the death of the
testator, they will take vested interests, but not indefeasible interests.
Estate of Langdon. 379
«ince their interest is likely to be devested to the extent of shares
taken by after-born children. Their shares will become vested in
interest and amount upon the death of A, for at that time the number
of his children is permanently fixed. But, while vested, is the property
alienable! It is in a sense, for vested and contingent interests are
both alienable. But, in the sense of transferring the property in
interest and possession, this cannot be done, and the property is
effectively tied up. The trustees cannot convey without a breach
of their trust, and a conveyance by the beneficiaries (the children)
alone would not release the property from the trust. So, while the
property becomes vested in the members of the class within the
proper time, it is not alienable in the full and complete sense that
the rule requires. The case of In re Walkerly, 108 Cal. 627, 49 Am.
St. Eep. 97, 41 Pac. 772, points out this distinction as clearly as any
case we have seen. It was contended that the members of the class
took an estate in that case which was vested and alienable, and there-
fore it was a valid estate. But the court replied to this: "It may be
first suggested that all expectant estates, whether vested in interest,
or contingent with a vested right, or entirely contingent, pass by suc-
cession, will, and transfer, like present estates and interest: Civ.
Code, sec. 699. But the fact that such interests may pass does not
relieve from the operation of the rule, unless there are persons in
being who, by combining and conveying all their distinct interests
created by the original grant or devise, can pass an absolute in-
terest in possession. Conceding that the future interest of the bene-
ficiaries is vested in the sense in which remainders are spoken of as
vesting, and the interest would thus be alienable, it still is not such
an interest as would by transfer carry an absolute interest in posses-
sion. As is pointed out by the court in Vanderpoel v. Loew, 112
N. Y. 167, 19 N. E. 481, the vesting of an estate involves alienability
only so far as that particular estate is concerned. The fact that
a given remainder is vested renders it absolutely alienable, so far
as it is itself concerned, but the absolute fee may at the same
time be alienable. Therefore, to convey this absolute interest in
possession the beneficiaries would be compelled to unite with their
conveyance that of the trustees in whom the fee is vested. But
the trustees cannot convey until the expiration of twenty-five years.
An attempt by them to convey before that time would contravene
the trust, and be a void act So, even though the bene-
ficiary should be a remainderman under such a trust as this, he
still could not alienate the land within the trust period so as to
avoid the statute. Such a trust cannot be terminated or destroyed
during the period fixed for the existence, even by the consent and
joint act of all the trustees and beneficiaries. Hence, the question
whether the interest of the beneficiaries is contingent or vested is
here of no possible moment. The absolute alienability required by
section 715 of the Civil Code does not imply vesting, and it affords
no escape from the operation of the rule, because the interest which
380 Coffey's Probate Decisions, Vol. 4.
the beneficiaries take may be relieved for uncertainty as to per-
sons or event. When so relieved, the interest may be said to be
vested. But it is not such a vesting nor yet such an interest as
removes the bar of the statute, since all the interests and es-
tates, contingent and vested, cannot convey the fee, so long as the
terms of the trust from which alone their interests are derived
stand in the way.^' The perpetuity here does not result from too re-
mote limitations or the failure of future estates to vest, but it
arises by the direct act of the testator in forbidding his trustees to
alienate for a period not tolerated by the law."
There are probably jurisdictions in which the only qualification
is that the estate shall vest indefeasibly in the members of a class
within the proper time, and it ia not required that the entire prop-
erty shall be alienable absolutely within the period allowed. Such
seems to be indicated by Loring v. Blake, 98 Mass. 253. Here the
estate was indefeasibly vested in the children as a class within
the proper time, subject to a life estate. If the estate had not been
held by trustees the matter would be simple, for the children and
the holder of the life estate could convey an absolute title in pos-
session if they were the only parties concerned. The presence of
trustees would seem to make this impossible. The inference, there-
fore, is that the absolute alienability of the entire property is not
essential, the absolute vesting of all the estates in the property alone
being necessary.
The distinction we have been treating seems to have been lost
sight of in Matter of Charlier, 22 N. Y. App. Div. 71, 47 N. Y.
Supp. 818. However, if the trust terminated, as seems to have been
held, at the death of the wife, then an absolute title to the entire
property could have been conveyed within the period allowed by the
rule.
The case of Thomas v. Gregg, 76 Md. 169, 24 Atl. 418, furnishes a
good example. Two wills were construed together as one will, and re-
sulted in property being disposed of in this wise: Property was de-
vised in trust for the benefit of the testator's daughter, with re-
mainder to the issue of her body living at her death, the trustees
to hold such property for the benefit of her children until their
death. The daughter had a child born after the decease of the
testator. Now the children of the daughter were determined upon
her death, and the share of each was determined at the same time.
Each child's share was thus indefeasibly vested at that time if
the gift were valid. But the trustees were to hold the property
for the benefit of the children until their death. The last one to
die might be the one born after the death of the testator, which
time also might be more than twenty-one years after the death of
all those living at the testator's death. The disposition was there-
fore void as to all the children in the class. And while the share
of each child was indefeasibly vested within the proper time, yet
the trust was to continue beyond the forbidden period, and while
Estate of Langdon. 381
it continued no absolute conveyance could be made. We have al-
ready noticed the assertion that is sometimes made that, if the time
fixed for payment would carry the class beyond the limits of
perpetuity, members coming into existence after the testator's death
will not be admitted, and have seen that this restriction has no
application to contingent gifts, the vesting in interest of which is
postponed. Is the restriction applicable where the gift confers a
vested interest? For example, a devise to trustees to hold for the
use of A for life, and after his death to hold for A's grandchildren,
to be received by them when they each become twenty-five. The
interest of the grandchildren living at the testator's death is ob-
viously a vested one. The time of distribution is clearly beyond the
limits of the rule against perpetuities. If after-born grandchildren
are intended to share in the distribution, the gift to all must be
void, for the share of some of those born after the testator's death
may not vest until a too remote time. Can, then, the gift be divided
between those grandchildren living at the testator's death to the
exclusion of those born later? Kevern v. Williams, 5 Sim. 171,
holds this may be done. Without saying that this case is wrongly
decided, it has been shown by Gray, in his work on Perpetuities,
that there is but one ground on which this case can be sustained
as being correctly decided. This is, that when a person is entitled
absolutely to property, any provision postponing its transfer or pay-
ment to him is void, in pursuance of the general doctrine that it
is against public policy to restrain a man in the use or disposition
of property in which no one but himself has any interest. Such
a provision is void without any regard to the rule against perpetuities.
In this case the grandchildren took absolute vested interests. The
restraints imposed upon the reception of the fund were nugatory.
"Therefore all of the brother's grandchildren who were alive at
the death of the widow were entitled at once to their shares.
That was the time of distribution. The class was then closed, and
no after-born grandchildren could take, entirely apart from any ques-
tion of remoteness." This case and Elliott v, Elliott, 12 Sim. 276,
were cited with hesitating approval in In re Coppard's Estate, S.l
Ch. Div. 350. We use the facts in this last case as better for the
purpose of illustration. Here propeuty was given to trustees to hold
for the benefit of the children of A, to be vested interests in them,
the property to be given them on their attaining twenty-five. If
this latter clause is a direction or restraint so repugnant to the
estate granted that it is nugatory and may be disregarded, and the
estate becomes vested entirely free from the restraint imposed, theu
the decision is correct. We venture to assert, however, that if tho
estate had been made distributable to the nephews and nieces on
their becoming twenty-one, so that the time of distribution would
have been within lives in being and twenty-one years, and hence
within the limits of the English rule, the decision would have been
different, and children born after the testator's death and before
382 Coffey's Probate Decisions, Vol. 4.
the period of distribution would have been allowed to share in the
estate. This assertion is borne out by the case of Oppenheiin v.
Henry, 10 Hare, 441, where a bequest was made to trustees to hold
in trust for grandchildren, to be divided equally among them at
the end of twenty years after his death. It was held that the
grandchildren took vested interests, but that all born after the
testator's death, a;id before the end of the twenty years were en-
titled to take. If the direction postponing payment was nugatory,
Oppenheim v. Henry, 10 Hare, 441, is erroneously decided. The fact
that the period of distribution was within the limits of the rule
against perpetuities must have been controlling. The decision is un-
questionably in conflict with Kevern v. Williams, 5 Sim. 171.
It is questionable whether the doctrine of Kevern v. Williams, 5
Sim. 171, is correct, for the reason that the rule that a restraint
repugnant to the estate granted is nugatory and may be disregarded
is only true where no one else is interested in the property. But the
rule does not apply where anyone else is interested in the property.
Now, in the case of a gift to a class, all the members of the class
are interested in the property, whenever they may be born, and the
testator intended to include as many as possible within his bounty.
We have already shown that a vested interest is defeasible when
after-born children may take a part of it, and it can only be rendered
indefeasible when the number of the class is finallj^ determined.
The cases are numerous where, when a gift to a class is made, to
be paid when the eldest attains a certain age, with a gift over
upon failure to attain that age, all members of the class coming
into existence before the eldest reaches the required age are al-
lowed to share. The gift over prevents the gift to the class from
being indefeasible: See Andrews v. Partington, 3 Brown Ch. 401;
Barrington v. Tristram, 6 Ves. 345; Whitbread v. St. John, 10 Ves.
152. But a gift to a class is as indefeasible when after-born chil-
dren are to share as when there is a gift over. Though it is not
devested to the same extent, it is devested in proportion to the num-
ber of after-born children.
Admitting that the decision in Kevern v. Williams, 5 Sim. 171, is
correct, it can only apply to those cases where the restriction as to
future payment is nugatory as being repugnant to the estate granted.
That there may be annexed to a vested gift unlawful restrictions,
see Philadelphia v. Girard, 45 Pa. 9, 84 Am. Dec. 470. However,
the ordinary type of a devise in trust to divide the property at
some subsequent period is not such a condition annexed to the gif^
as may be rejected as void because repugnant to the interest convej'cd.
This was distinctly held in Be Walkerly, 108 Cal. 627, 49 Am. St.
Eep. 97, 41 Pac. 772. The case of Kevern v. Williams, 5 Sim. 171,
should, therefore, not interfere with the current of American deci-
sions, however binding it may be deemed on the English courts.
Then, by adopting the rule of Kevern v. Williams, 5 Sim. 171, there
is the obvious difficulty of adjusting the share to which each child
Estate of Langdon. 383
capable of taking is entitled. By making the gift vest both in in-
terest and possession at the testator's death, which the testator
never intended, the amount which those living will receive is likely
to be much in excess of that which the testator designed.
There is still another method by which the rule of perpetuities is
evaded, which is by a construction of the will itself. The rule of
Kevern v. "Williams, 5 Sim. 171, is not one of construction, but a
mandatory rule of law by which void conditions are rejected. By
construction, however, the testator's intention is preserved to some
extent, though in some cases the construction is clearly unwar-
ranted. Such a case exists where a devise is made to the children
of A, to be divided among them equally when the youngest at-
tains the age of twenty-one. In those jurisdictions where estates
need not vest until twenty-one years after lives in being, the gift
would be good, and the devise would be distributed when the
youngest of A's children, whenever born, should become of age.
But in jurisdictions where the gift must take effect within lives
in being, or where accumulations, if provided for, must be dis-
tributed within the same period, the rule is different. Here every-
thing depends on what the testator meant by the youngest child.
If nothing but the general term is used, we have already seen that
the correct meaning is the youngest, whenever born, because the
testator intended to provide for all the members of that class.
If, on the other hand, words are used that render the intent doubt-
ful, then the gift may be saved by construing the term to mean
the youngest living at the testator's death. So in the case of In re
McBride's Estate, 152 Pa. 192, 25 Atl. 513, words were used that
reasonably permitted such a construction, and the gift, otherwise void,
was saved. In Cogan v. McCabe, 23 Misc. Eep. 739, 52 N. Y. Supp. 51,
however, there were no words used in the will which might by any
possibility have meant that the testator referred to his youngest
child then living, the construction adopted was forced, and the real
intent of the testator was thwarted. The case is not good law, and
such a construction, it is submitted, should not be and would not
be likely to be followed elsewhere. In any case where words are
employed which permit of a construction that the testator meant
his youngest child then living, the construction places the period of
distribution at the time when such youngest attains the requisite
age, as twenty-one. This being the period of distribution, it follows
logically that any child who at the time of the distribution answers
the description of the class is thereby a member of the class and en-
titled to share in the estate, whether he was born after the death of
the testator or not. Logically, this position cannot be assailed, and
the right of any member who belongs to the class at the time of dis-
tribution to share in such distribution cannot be denied, although
born subsequent to the death of the testator: In re McBride's Es-
tate, 152 Pa, 192, 25 Atl. 513. It is thus seen that such a construction
384 Coffey's Probate Decisions, Vol. 4,
results in cutting down the membership of the class only in part
and at the same time the gift is saved.
It must be observed that in those jurisdictions where a perpetuity
can be created only for two lives in being, as in New York, a con-
struction allowing the trust to exist and keeping the property in-
tact until the youngest (or oldest) "becomes of age, does not neces-
sarily violate the irule. While the trust is to exist until the young-
est becomes of age, the restraint on alienation is to endure only
during the life of the life tenant and until the youngest becomes
twenty-one. It is thus measured by two lives in being, for the
death of the youngest before reaching twenty-one would of necessity
put an end to the trust, unless the age of twenty-one was a time limit,
regardless of the existence of such child: See Van Cott v. Prentice,
104 N. Y. 45, 10 N. E. 257. See Will of Butter§eld, 133 N. Y. 473, 31
N. E. 515, where the time appointed for distribution was vital to the ex-
istence of the trust, and, in consequence, the gift was void as to the
entire class: See, also, Haynes v. Sherman, 117 N. Y. 433, 22 N. E.
938. But if the gift were to all of a class living at the testator's
death when they should become twenty-one, the age refers to all, not
to a definite one, and the trust would be to endure for more than two
lives in being, and in consequence must be held void.
Rule Against Perpetuities — Independent Gifts. — Care must be ob-
served to distinguish those cases in which, while a gift is made to chil-
dren, the gifts are independent and separate, and for this reason
each gift or each set of gifts must be judged by itself in determining
whether it violates the rule against perpetuities. When gifts are
made to several persons by one description, but the amount of the
gift to one is not affected by the existence or nonexistence of the
others, then the gifts are separable. Such gifts are not strictly
gifts to a class, and the mere designation of the beneficiaries by
some general name, as "children," does not of itself make it a gift
to a class. For example, if a testator bequeaths five hundred dollars
to each of the children of A who attain the age of twenty-five, the
gift to each is separable and must be considered by itself in de-
termining whether the rule against perpetuities is violated or not.
In the example cited, those born after the testator's death cannot
possibly take: those living at his death may. It is immaterial
whether the gift is of a specific sum or of a share, if the number of
shares is definitely determined within the limits of the rule. The
case of Catlin v. Brown, 11 Hare, 372, is a well-considered case
on this question. It was said here that where there was a devise
of "property to each member of a class, and the gift to each is
wholly independent of the same or similar gift to every other mem-
ber of the class, and cannot be augmented or diminished whatever
be the number of the other members, then the gift may be good as
to those within the limits allowed by law." In this case a devise
was made to A for life, with remainders for life to all the children
of A equally, with remainders in fee to the grandchildren, the grand-
Estate of Langdon. 385
children to take only the share of their respective parent. As to
the children, there was but one class, those of A, who must come
into being during the life of A. The share which each of these
children should take was, therefore, determined absolutely and in-
defeasibly within one life in being. But as to the grandchildren
there were as many classes as there were children of A, since the
grandchildren took only the share of their own parent. Now, sup-
pose A to have had four children, B and C, who were living at
the testator's death, and D and E, born subsequently. The shares
of B, C, D, and E are determined absolutely during the life of A,
since A's children must all be born during his life. But, as to the
grandchildren, the situation is different. The children of B and C
must all be born within the space of two lives in being at the
testator's death, viz., the lives of A and B, or of A and C. The
shares which these grandchildren, the children of B and C, would
take must, in consequence, be detenniDed within two lives in being
at the testator's death, for the children of B and C, taking only the
share of their parent, are in no wise affected by the existence of
children of D and E. Hence the shares of the children of B and
C, the children of each forming a separate and distinct class, will
be determined and will vest indefeasibly within the limits of the
rule, in this case within two lives in being. The children of D and
E suffer a different fate. D and E may not be born until more than
twenty-one years after the testator's death, in which case none
of their children might be born within two lives in being and twenty-
one years. The shares of these children, therefore, might not be
determined until more than twenty-one years beyond lives in be-
ing, the rule is violated, and they cannot take. The shares which
they take, being simply the portion given their parent, are independ-
ent of the gift to the children of B and C, and for this reason the
two gifts do not meet with the same treatment.
The leading case on this question is Storrs v. Benbow, 2 Mylne
& K, 46. See, also, Griffith v. Pownall, 13 Sim. 393; In re Kussell,
[1895] 2 Ch. 698; Vanderpoel v. Loew, 112 N. Y. 107, 19 N. E. 481;
Hill V. Simonds, 125 Mass. 536; Dorr v. Lovering, 147 Mass. 530, 18
N. E. 412.
To summarize, then, the results of our discussion relating to the
rule against perpetuities: If the devise is contingent and will hot
vest in interest until a period not allowed by the rule, the gift is
void, and no member of the class can take, though some may have
been in existence at the time of the testator's death. If the devise
gives a vested interest which is indefeasible, with a postponement
of payment which is nugatory, because repugnant to the estate
granted, the void condition will be ignored and the gift vest im-
mediately in those members of the class living at the testator's
death. If the devise gives a vested interest, but the vesting is not
indefeasible by reason of a devesting gift over or of the possibility
Prob. Dec, Vol. IV— 25
386 Coffey's Probate Decisions, Vol. 4.
of a devesting to allow after-bom children to share, then, if the
number of shares can be definitely determined within the limits
of the rule, the gift is good and all born afterward will be allowed
to share; except that where a trust term is created which renders
it impossible to convey an absolute title in possession within the
limits of the rule, then the entire gift is void and none can take,
though the number of shares would be definitely determined within
proper limits. If the devise is vested, but not indefeasibly so, and
the number of shares cannot be ascertained within the limits of the
rule, the gift is void and none may take. In this latter case, if the
will contains language capable of a reasonable construction which
will permit of a distribution within the limits of the rule, such con-
struction may be adopted and all members of the class coming into
existence before the period of distribution will be allowed to share.
Lastly, if the gift, though made to "children" or other class, is
separable and independent, and not a real gift to a class, the share of
each member or of each class of members will be determined separately
on its own merits.
In the Matter op the Estate of JOSE VICENTE DE
LAVEAGA, Deceased.
[No. 15,120; decided December 6, 1899.]
Legitimation of Child — Effect of- His Status. — A child legitimized
by his father under section 230 of the Civil Code is as much a legiti-
mate child as one born in lawful wedlock, and is to be deemed
legitimate for all purposes from the time of his birth.
Legitimation of Child — Necessity of Marriage. — It is not essential
to the legitimation of a child under section 230 of the Civil Code
that his parents should marry.
Legitimation of Child — Collateral Inheritance. — A child born ille-
gitimate, but legitimated by his father under section 230 of the
Civil Code, may be an heir of his father's brother, though his parents
never married.
Legitimate Children — Classification of. — Legitimate children may
be classified under our statute as (1) children born of a lawful mar-
riage; (2) children born of parents who subsequently married;
(3) children born of a null marriage; (4) children legitimated by the
act of their father, without a marriage of the parents. There seems
to be no distinction among these classes as to any right whatever.
Legitimated Child — Sections 230 and 1387. — Section 1387 of the
Civil Code has no application to a child legitimated by his father
Estate op de Laveaga. 387
under section 230 of the same code without a marriage with the
mother.
Legitimated Child — Rules of Succession. — When illegitimate chil-
dren are legitimated, their capacity to inherit results as an incident
to their status, and the law governing their rights and succession is
the general law which establishes the rules of succession applicable
to the children born in lawful wedlock.
Illegitimates — Succession — Sections 1386 and 1387. — Section 13S6 of
the Civil Code contains the rules of succession which govern in the
case of legitimate children, while section 1387 is limited in its scope
to prescribing rules of succession by and from illegitimate children,
who are allowed, in spite of their continuing illegitimacy, to inherit
on certain conditions both lineally and collaterally.
Illegitimate Child — Succession — Section 1387. — Section 1387 of the
Civil Code is designed to establish a rule of succession by and from
illegitimate as contradistinguished alike from children legitimate by
birth and from legitimated children.
Petition of Maria Josef a Cebrian and Maria Coneepcion
de Laveaga for partial distribution, and the answer and cross-
petition of A. J. M. de Laveaga,
T. J. Lyons and G. W. McEnerney, for the petitioning
sisters and brother M. A. de Laveaga.
J. J. Dwyer, T. F. Barry and John Garber, for Anselmo
J. M. de Laveaga, claiming to be son of deceased brother.
Daniel Rogers, for executors.
COFFEY, J. This is an application by the two sisters of
the decedent, asking for distribution of the property of the
estate to them and to their brother Miguel A. de Laveaga, as
the next of kin and heirs, filed December 4, 1896. This ap-
plication the executors answered formally on December 16,
1896, putting in issue, however, nothing material in this con-
troversy.
On January 11, 1897, an answer to the petition of the sis-
ters was filed on behalf of one Anselmo Jose Maria de La-
veaga, in which he alleged that he is one of the heirs, at law
and next of kin of said Jose Vicente de Laveaga, deeeai'ed.
and averred, in support of his claim, that he was and is the
388 Coffey's Probate Decisions, Vol. 4.
only son and the only child and only living offspring and
sole heir at law and sole next of kin of said Jose Maria de
Laveaga, a brother of said Jose Vicente, and mentioned as
such brother in the petition of the sisters; that he was born
April 21, 1868, and is now over the age of majority and that
on the first day of October, 1873, and prior thereto he was
and thence hitherto has been and still is a resident of the
city and county of San Francisco, and domiciled therein, and
a citizen of the said state of California and of the United
States of America; that said Jose Maria de Laveaga was on
the first day of January, 1872, and prior thereto and there-
after and until his death a resident of the said state of Cali-
fornia, and domiciled therein, but died without said state
of California, while temporarily absent therefrom in the
state of Colorado, on or about April 21, 1880; that said Jose
Maria was never married, and that the respondent was born
of him and Basilia Sanchez; that said Jose Maria never had
any family; that within the said state of California after
the birth of the respondent and previous to the death of said
Jose Maria the latter did publicly acknowledge the respond-
ent as his own child and did support, maintain, and educate
him as his child, and did otherwise treat respondent as if
he were a legitimate child of said Jose Maria, and did thereby
adopt him as and for his legitimate child, and did legitimate
respondent, and thereby respondeat became for all purposes
the legitimate child of said Jose Maria de Laveaga from the
time of respondent's birth; that said Basilia Sanchez died
before respondent attained the age of six years; that subse-
quently to the death of Basilia and before respondent attained
the age of six years, Jose Maria took respondent into his
custody and control and under his protection in said state
of California and continued to have and exercised such cus-
tody and control in said state as his father, and in a fatherly
manner continuously thereafter until the death of said Jose
Maria, and from on or about the 20th of September, 1873,
thereafter until his death said Jose Maria caused respondent
to be. cared for, nurtured, maintained, reared and educated
in said city and county of San Francisco by Dr. Wilhelm
Dohrmann, who was a friend of respondent's father, and in
the household and family of said Dr. V/i!helm Dohrmann,
Estate op de Laveaga. 389
who was a married man, and who with his wife aeted by the
direction, consent, request, and procurement of said Jose
Maria as the foster-parents of respondent, for which said
services said Doctor Wilhclm Dohrmann was paid consider-
able sums of money by said Jose Maria de Laveaga ; that said
Jose Maria, dj-ing, left a last will bearing date the eighth
day of November, 1877, made and executed on the day of
its date, entirely written, dated and signed by his own hand,
and also witnessed by two subscribing witnesses, A. M. Ab-
rego and Green Devaul, who at the time of the making and
execution thereof by said testator and at the time they sub-
scribed their own names as witnesses thereto were competent
witnesses; and in said will subscribed and signed by said testa-
tor Jose Maria de Laveaga in the presence of said two compe-
tent witnesses, he the said testator did acknowledge himself to
be the father of respondent and that respondent was his own
child.
The said will and attestation clause are as follows:
' ' In the Name of God, Amen.
"I, Jose M. de Laveaga, of Los Aguilas Ranch, San Benito
County, State of California, of the age of 33 years, 1 mth.
& 27 days, and being of sound and disposing mind, and not
under any restraint, or the influence or representation of
any person whatever, do make, publish and declare this my
last Will and Testament, in manner following, that is to
say —
"First. I direct that my body be decently buried without
undue ceremony or ostentation; but with proper regard to
my station and condition in life, and the circumstances of
my estate.
"Secondly. I direct that my executors hereinafter named,
as soon as they have sufficient funds in their hands, pay my
funeral expenses, and lawful debts.
"Thirdly. Whereas all my kindred and relations are in
good and easy circumstances, I herewith distinctly declare
that I do not give, bequeath nor devise anything to any of
my kindred or relatives however near; with the exception
of my brother, Jose Vicente, and this only in below specified
case; but give, bequeath and devise all of my property to
my son Anselmo Jose Maria, born in Mazatlan, Mexico, to
390 Coffey's Probate Decisions, Vol. 4.
Basilia Sanchez, deceased, on the twenty-first day of April,
eighteen hundred and sixty-eight, and to-day residing with
Doctor Wm. Dohrmann at No. 535 Bryant street, corner of
Zoe, to the exclusion of all and everybody else, as this is the
only child, I swe^ar before God and men, to have.
"Fourthly. I wish to have it understood that said Anselrao
Jose Maria, will not enter into possession of anything now
belonging to me, before he reaches his full age and has learned
some profession, for which purpose the executors hereinafter
named will give him a thorough education.
"Fifth. In case of death of said Anselmo Jose Maria, all
of my estate goes to my brother Jose Vicente de Laveaga.
"Lastly. I hereby appoint my said brother Jose Vicente
de Laveaga and my friend Frederick W. Dohrmaun (of the
firm of B. Nathan & Co.) both of the City of San Francisco,
California, the executors of this, my last Will and Testa-
ment ; hereby revoking all former wills by me made.
"In Witness Whereof, I have hereunto set my hand and
seal this eighth day of November, in the year of our Lord one
thousand eight hundred and seventy-seven.
"J. M. de LAVEAGA. (Seal.)
"The foregoing instrument, consisting of one page besides
this, was, at the date thereof, by the said Jose M. de Laveaga,
signed and sealed and published as, and declared to be his
last Will and Testament, in the presence of us, who, at his
request, and in his presence, and in the presence of each
other, have subscribed our names as witnesses thereto.
"A. M. ABREGO,
"Residing at the Los Aguilas.
"GREEN DEVAUL,
''Residing at the Los Aguilas."
On the 9th of December, 1895, this paper was admitted to
probate as the last will and testament of said Jose Maria and
still subsists on the record in that form. That in and by an-
other instrument in writing signed and subscribed by said
Jose Maria de Laveaga in his lifetime in the state of Califor-
nia in the presence of two competent witnesses, to wit, F. A.
Schroder and Dr. Wilhelm Dohrmann, which said witnesses
v/ere competent at the time of the signing and subscription
Estate op de Laveaga. 391
thereof by the said Jose Maria de Laveaga and by themselves,
and which said witnesses subscribed their names respectively
thereto as such witnesses at the request of said Jose Maria
de Laveaga, said Jose Maria de Laveaga did publicly acknowl-
edge respondent to be his own child and that he was the
father of respondent. Said written instrument last referred
to is in the German language and the following is a full, true
and correct translation thereof:
"DONE
"San Francisco, California.
"May 24th, Anno 1878.
<( << <(
"By these presents and by my name, hereunto subscribed
with my own hand, I, Joseph Maria de Laveaga, before and
in the presence of the witnesses whose names have been like-
wise hereunto subscribed with their own hands, and being
in the full possession of my intellect and in good health,
(having come here temporarily from my rancho, Los Aguilas,
San Benito County), do truthfully and solemnly declare:
"That the boy, born in Mazatlan, Mexico on April 21st,
II
Anno 1868, therefore at present 10 years old, named Joseph
I
Anselm Sanchez, who, since September 20th of the year 1873,
has been and is now, living as a foster son with Wilhelm
Dohrmann, M. D., engaged here in medical practice, and
with the latter 's family, is my own son, and is hereby ac-
knowledged as such by me, his own true father, before these
witnesses orally and in writing, just as I have already after
the death years ago of his own mother, Basilia Sanchez, by
means of a testamentary disposition (that is, to say, years
ago) made him my sole and only lawful heir of the estate
to be left by me, and I hereby repeatedly acknowledge and
confirm him with all his legal claims of inheritance and other
rights and consequences connected with and in law and justice
arising out of this my acknowledgment, which an own son
may have.
"Whereof this preliminary instrument is witness (viz., of
this my act of acknowledgment) (and at the same time of
392 Coffey's Probate Decisions, Vol. 4.
the previous testamentary disposition as to the inheritance
of my estate) amongst the living and in case of death, re-
serving compliance with the further formality, if required by
law, of a proper notarial instrument and other like things,
which owing to the absence of the Notary Public, Mr. E. V.
Sutter, of this city, will be effected and regularly done in ad-
dition hereto after his return.
"Thus done and subscribed, under date and in the year,
as above, on May 24th, 1878.
" J. M. de LAVEAGA.
"As witnesses and for the genuineness of the above sig-
nature.
"F. A. SCHRODER,
"WILHELM DOHRMANN,
"Dr. M."
The original is here copied as follows:
"ACTUM.
"San Francisco, California,
"den 24sten May Anno 1878.
"Hinmittelst, und mit meiner eigenhandigen Namens-Un-
terschrif t, erklare ich, : Joseph Maria deLaveaga, vor und in
Gegenwart gleich falls eigenhandig mit-unterzeichneter Zeu-
gen, bei voUem Verstande, und guter Gesunheit, (allhier,
von meinem Rancho Los Aguilas, San Benito County, zeit-
weilig anwesend) wahrheitsgemass und feierlichst:
"dass der, seit dem 20sten September des Jahr's 1873,
und noch jetzt, bei dem hier arztlich practisirenden Dr. M.
Wilhelm Dohrmann, und in dessen Familie, als Pflegesohn,
befindliche Knabe, geboren in Mazatlan in Mexiko am 21sten
April Anno 1868, mithin gegenwartig 10 Jahre alt, Namens:
II I
"Joseph Anselm Sanchez, mein leiblicher Sohn ist, und,
als solcher, von mir, als seinem rechten, leiblichen Vater,
hinmittelst mundlich, wie schriflich, vor diesen Zeugen, aner-
kannt wird, wie ich denn auch selbigenm nach seiner, vor
Jahren bereits verstorbenen leiblichen Mutter: "Basilia San-
chez", erfolgtem Tode, mittelst testamentlich er Bestimmung,
(resp: vor Jahren) als meinen einzigen und alleinigen recht-
massigen Erben meiuer ein.sligen Vermogens-Hinterlassen-
Estate of de Laveaga. 393
scliaft, berelts eingesetzt' habe und hiemittelst, wiederholt, mit
alien seinen rechtmassigen, und mit dieser, meiner Anerkenn-
ung, verbundenen und rechts- und gesetzmassig sich ergeb-
enden Erbshafts- und sonstigen Anspruchen und Folgerun-
gen meines leiblichen Sohnes, anerkenne und bestatige:
"Solches zur vorlaufigen Urkunde: (dieser meiner Aner-
kennungs-Acte) (wie der resp : vorangegangenen testament-
lichen Erbschafts -Einsetzung zugleich) um Lebens- und
Sterbens willen, unter Vorbehalt weiterer gesetzmassig er-
forderlichen, demnachst ein-und nachzuholenden Formalitat
eines desfalsigen Notariats-Instruments, s. w. d. a. welches,
in Abwesenheit des Notarius publieus, Herrn E. V. Sutter,
hierselbst, nach seiner Ruckkehr auf hier, des Weiteren effeet-
uirt und zur Ordnung gebrachf werden wird.
"So gesehehen und unterschrieben sub. dat. et in anno, ut
supra, den 24 May 1878.
" J. M. de LAVEAGA.
* ' Als Zeugen und fur die eigenhandige obige Namens-Unter-
schrif t :
"F. A. SCHRODER
"WILHELM DOHRMANN,
"Dr. M."
This is the actum so-called from the word in the original
* * actum ' ' rendered ' ' done ' ' at the head of the foregoing trans-
lation.
That said Jose Maria de Laveaga and the witnesses Dr. Wil-
helm Dohrmann and F. A. Schroder all spoke and wrote
the German language fluently and used it in conversation and
in writing among themselves, and they all thoroughly un-
derstood the contents of said written instrument; that this
respondent is the person designated b}- the name Anselmo
II I
Jose Maria in the will and the same Joseph Anselm San-
chez in the other instrument; that by reason of these facts
he is entitled to share as heir and next of kin in the distribu-
tion of this estate, and he prays judgment accordingly. On
the 13th of December, 1897, the sisters made answer to the
claim of the respondent denying its essential averments. The
issues thus joined came to trial on "Wednesday, October 5th,
1898.
394 Coffey's Probate Decisions, Vol. 4.
The claim of Anselmo is based entirely upon the Civil
Code, section 230, and miist rest upon the proofs required
to be produced showing paternity and legitimation.
"Sec. 230. The father of an illegitimate child, by pub-
licly acknowledging it as his own, receiving it as such, with
the consent of his wife, if he is married, into his family, and
otherwise treating it as if it w^re a legitimate child, thereby
adopts it as such; and such child is thereupon deemed for
all purposes legitimate from the time of its birth."
The first point to be proved under the statute is the ille-
gitimacy of the claimant, and that has been established in
this case without question from any source. It has been
shown conclusively that the mother of the boy Anselmo was
never married. The next question is as to paternity. Jose
Maria was an unmarried man, and, therefore, presumptively
childless. In order to substantiate this claim it must be
shown that the child was illegitimate, and the fact of pa-
ternity must be established by strict and plenary proof; it
must be demonstrated without shadow of suspicion to taint
it. Can it be said that this petitioner has proved paternity
in the strict manner and to the full extent of the statute?
Has the status of the Civil Code, section 280, been estab-
lished in this case in any of its elements? Is there evidence
here of any intercourse between the maiden mother of this
boy claimant and the bachelor Jose Maria? It is denied in
argument that there is anything in the record competent to
show that the two had any sexual relation, or that this child
was the fruit of such commerce, or that such fact can be logi-
cally or legally inferred from propinquity or opportunity, and
it is argued that it must be manifest that Jose Maria and he
alone had access to the mother antecedent to the birth of
the boy, and that the testimony here produced is insufficient
on that point.
The senior Don Jose Vicente de Laveaga came with his
family to San Francisco, arriving in April, 1867; the house-
hold consisted of himself, his wife, three daughters, his son,
Jose Maria, two maiden sisters of his wife and two servants
Basilia Sanchez and Josef a Lopez; Basilia Sanchez had been
in their employ four years. Two sons, Jose Vicente, junior,
and jMiguel, were then in Europe, for education, as Jose
Estate of de Laveaga. 395
Maria had been also for a time, returning in 18G2 to Mazat-
lan and remaining in the household until arrival in this city.
Jose Maria was then about' twenty-three years old, having
been born September 11, 1844. Preparations had been made
for the reception of the family in San Francisco, as the se-
nior Don Vicente, a man of method and precision and exact-
ness as to detail had arranged in advance through his friend
Goyoneche, already resident here, for a proper habitation,
to which they immediately repaired upon their arrival.
They were met at the wharf by Goyoneche and one "Pepe"
Torrontegui, an old-time Mexican acquaintance in a humble
way of the de Laveaga family, who offered his assistance in
the transference of their effects to their selected domicile on
Silver street; in this house they remained but a short time,
when they removed to 512 Dupont street, where the cause
of this controversy had its origin. This man "Pepe, " or
Jose Torrontegui, claims to have known Jose Maria from a
child and as an intimate friend, and his father before him,
with whom he first became acquainted in Mazatlan and the
mother also. He was in their family residence in that city
several times and knew them all, living and dead. Nachit'a,
diminutive for Ygnacia, "Pepe" or Josef a, Maria, were three
sisters of Jose Maria. Their father was Don Jose Vicente
de Laveaga and the mother Dona Dolores Aguirre de Laveaga.
Torrontegui testifies that he first saw the family here on the
steamer when they arrived at Folsom street wharf where
he had gone to meet them in company with Tomas Goyoneche.
There were with the family two female servants whose names
he did not then know, but supposed to be passengers. He
subsequently learned their names as Basilia and Josefa. The
family went to live in a house on Silver street", between Third
and Fourth; in company with Torrontegui and Goyoneche
the.y went direct from the steamer to that house ; Jose Maria
went there also to live with them. This witness visited that
house and saw the family there, saw the girl Basilia there
perhaps once or twice; from Silver street the family moved
to Dupont street; Torrontegui 's mother knew Jose Maria
very well indeed; the latter used to visit the family of the
witness at least once a week and there was great intimacy
between them; on one occasion Jose Maria came to Torron-
396 Coffey's Probate Decisions, Vol. 4.
tegiii in great trouble concerning Basilia, wlio he said was
in the family way and he came to consult as to what he should
do ; the mother of witness was present when Jose Maria called
on that occasion and made the communication as to the con-
dition of Basilia; he said that he had fallen in love with
Basilia, the consequence of which was that she was pregnant,
and he wanted to know the best thing he could do with her,
whether he should send her back to Mazatlan; he said that
his aunt Isabel knew of the incident and wanted the girl sent
to Mazatlan; this aunt was the one who bossed the house;
his eldest sister "Nacha," or Ygnacia, wanted the girl sent
to Contra Costa, but the doctor advised Mexico; Jose Maria
told witness that Basilia died after she left here in Mazatlan ;
when the steamer was leaving for Mexico he said to him, "I
am sending her back to Mexico" ; the day after she went away
he said, "Now, Basilia is gone away"; he said subsequently
that he was no longer afraid that his father would know of
the girl's being in the family way. When this witness visited
the house of the de Laveagas on business about two months be-
fore the girl left he noticed from the enlargement of her
tigure that she was pregnant; after the girl had gone to
Mazatlan Jose Maria came to see the Torronteguis and told
them that he had received a letter from Mazatlan and that
the girl had given birth to a male child; they congratulated
him now that he had an heir of his name ; he returned thanks
and said that he intended the child should receive a good
education and be well cared for; subsequently he told of the
death of Basilia, the mother of the child; he said that the
child was in the same place when Basilia died; he used
to speak of the child as "My child" "my little one," in
Spanish and seemed very happy; witness knew that Jose
Maria was dead because he saw him with his own eyes;
he saw him when Jose Maria left for Colorado, he came to
take leave of the Torronteguis, and the old lady said to him,
"My son," she had so much confidence with him that she
used to talk with him in that way, "What are you going
to do at such a distance? You have money enough to do
business here. What do you want to go there so far away
for, where there are Apaches and other Indians?" He said
that he wanted to go there to see if he could make some
Estate of de Laveaqa. 397
money, and that he thought that he could leave the child
here with his brother Vicente; witness knew that Jose Maria
had been a clerk in San Francisco in the office of Lemmen
Meyer; he told Torrontegui that he had left his father's
house because his sister *'Nacha" wrote a letter to a friend
Josefa Castelo in Mazatlan, informing her that Basilia was
going there sick and to take charge of her, and the friend an-
swered that Basilia had arrived and that the sickness was that
she was with child by Jose Maria ; this answer was received by
Nacha while the family was at table and Nacha read it and be-
gan berating her brother, until he became incensed and struck
her, knocking her and the chair over on w^hieh she was seated,
and then took his hat and left the house; Jose Maria spoke
about the child many times; Jose Maria had three aunts,
Isabel, Trinidad, and "Panchita" or Francisca; Panchita
died when Torrontegui was small, at the time of testimony
he was sixty-six years old; the two other aunts died here;
Jose Maria told him that his aunt Isabel and sister "Nacha"
or Ignacia "bossed" the house; that the mother did nothing;
he told him that the result of his amour was that Basilia
was pregnant and that he said to his sister that the girl was
sick and to send for a doctor, but Nacha refused and told
him to go himself, and he did and he brought a physician,
a German, to whom he confided her condition, and the doctor
agreed to conceal the truth and to advise that it was neces-
sary to send Basilia away to insure her recovery. Nacha
wanted to send her to Contra Costa, but the doctor insisted
that the girl must go to Mexico, as her sickness was of such
a nature that in that climate alone could a cure be effected,
and as the steamer was in and going out next day it was
arranged that Basilia should take passage thereon and she
did so, and the day after the departure Jose Maria called
upon Torrontegui and appeared much elated at the success
of the stratagem which he said would avoid scandal in the
family, and he had no fear now that his father would dis-
cover the fact, and Nacha and the others did not know nor
suspect the truth. Torrontegui knew Natalia Aguirre, whose
grandmother was his mother's cousin; and it was this Natalia
that brought the child from Mexico. The de Laveagas used to
attend church at St. Francis on Vallejo street; where the
398 Coffey's Probate Decisions, Vol. 4.
^vitness used to dust the pews, attend to collections, and
discharge other duties of that kind, open the doors, and
otherwise assist in the time of Father Aerden. Jose Maria
was not much accustomed to attend church, and when he did
come he entered by another door than that through which
the family came. In the afternoon of Sundays Dona Dolores
and Don Vicente, the elder, always went to the convent on
Powell street, the Presentation, between Greenwich and Lom-
bard streets ; Maria, the little one, was with them ; Jose Maria
did not go with them, but asked Torrontegui to look out
when they were going, and he would do so and then tell him,
and then both would go and observe the family on their way ;
after they saw them going to the house Jose Maria would say
that he was satisfied with the sight of his parents, and now he
could sleep with pleasure having seen them; all this was re-
peated every Sunday until the father became ill, when he
recalled Jose Maria to the house; Torrontegui was at the
funeral of old Don Vicente and of all the members of the
family that died here, including Don Jose Maria de Laveaga.
The foregoing is the substance of what counsel for the
sisters stigmatizes as the " worthless tale of Torrontegui,"
which, however, was repeated without material variation, dur-
ing the protracted cross-examination and which is substan-
tially corroborated by other evidence on the part of the claim-
ant, the most important items of which are documentary,
namely, the will of November 8, 1877, and the so-called
actum of May 21, 1878, hereinabove transcribed in which he
expressed his conviction of fatherhood.
Counsel for the sisters treats these testimonies tersely in
comment thereon, summarizing as to paternity that there is
no proof of antecedent relations except admissions of Jose
Maria; no proof except the same and the evidence of Tor-
rontegui of the career of Basilia in San Francisco ; that the
child was not baptized in the name of de Laveaga and never
used the name in that form until 1895 ; that there was no
reception into the family nor into the house or home of Jose
Maria; that Jose Maria caused the boy to be held out to
the world as the son, or at least of the kin and blood, of
the Dohrmanns; that the boy grew up not knowing that Jose
Maria was his father and never took his name, and no rea-
Estate of de Laveaga. 399
son is given why he did not ; all that Jose Maria did for the
boy was to pay his board, a dollar a day; most of the ad-
missions of paternity had to be made and were born of ne-
cessity ; neither the actum nor the will ever left his possession,
or if they did, for a short time and for use after death; at
the very time Jose Maria was admitting paternity, he was
also denying it to a larger world, to wit, the school world
and the neighborhood.
So far as this summary is concerned, it is hardly to be
expected that claimant should be required to establish by di-
rect ocular evidence the sexual process of procreation or the
act of begetting. We should consider the circumstances of
the parties, what one of the counsel calls their environment.
At the time of the arrival of the family the inmates of the
household were Don Jose Vicente, the elder, his wife, their
three young daughters, Jose Maria, then about twenty-two
or twenty-three years of age, the two aunts, Ygnacia and
Isabel, and the two maid servants, Basilia and Josefa. There
is no evidence whatever tending to show that Basilia was
the recipient of the attentions of any suitor or in the habit
of consorting with any man, nor is there anything implicat-
ing anyone other than Jose Maria in her misfortune nor
pointing in any manner to another as the author of the child
born on April 21, 1868, in Mazatlan in the house of her sis-
ter Juliana, with whom she lived after her return to that
place, and with whom she remained until her death on May
15, 1872. This child was baptized at the Parish Church by
the name of Anselmo Jose Maria, the first name on account
of the Saint's day, and of the custom of the church and of
the country, the other names, the Christian names of the
father, the surname not being a necessity of the ceremony.
The circumstances alluded to in addition to the other evi-
dence leads irresistibly to the conclusion that Jose Maria
was the father; that upon the boy's arrival in San Francisco
after the death of his mother he was committed to the cus-
tody of the Dohrmanns, and the fact that he was for a time
known by their name, and was b}^ them sent to one school
or another and entered by their name does not destroy the
force and effect of the evidence as to the fact of paternity,
however much it may affect the question of public acknowl-
400 Coffey's Probate Decisions, Vol. 4.
edgmeut. There is no doubt in my mind from the evidence
that the flight of Basilia to Mexico was contrived by Jose
Maria upon a pretext devised by him in dread of his father's
wrath, if he should discover the stain upon his name caused
by a low intrigue of a son with a servant, and that upon the
revelation incident to the reception of the letter received by
his sister, as related in the evidence, his extrusion followed
from his father's house, to which he never returned and with
whom he was never reconciled until he was called back on
the eve of the elder don's death March 14, 1874.
The fact of paternity has been plenarily proved in this
case by the only possible proof of such a fact in any case.
The declarations of the father in that respect are the best
and only proof of paternity of an illegitimate. There is no
doubt upon the evidence that claimant Anselrao was born
of Basilia Sanchez, maiden, and there is no proof that any
man but Jose Maria de Laveaga had access to her prior to
plaintiff's birth, and the declarations, numerous and em-
phatic and in solemn written document's, show conclusively
paternity ; the evidential force of these contentions is in-
contestable, consequent upon the uncontested fact of ille-
gitimacy. It must appear that the child is illegitimate, for
such only are the objects of this statute's solicitude; the
declarations of the alleged father can have no tendency to
prove the fact of illegitimacy, but when it is established
otherwise by evidence the declarations are effectual in proof
of paternity.
So far it is shown that the boy claimant was illegitimate
and that Jose Maria de Laveaga, an unmarried man, was his
father. It remains fo be resolved whether the statute in other
respects has been satisfied, so as to confer upon this claim-
ant the status of a legitimate child. The statute is headed
"Adoption of Illegitimate Child," and the acts resulting in
such adoption must be performed by the father, and the
consequence of such performance is the legitimation of the
child for all purposes from the time of its birth. The method
of acquiring such status is prescribed by law and tho
statute furnishes the evidence and the only proper and
competent evidence of the acquisition of the status. If Jose
Maria de Laveaga performed toward the child the duties which
Estate of de Laveaga. 401
would have devolved upon him as the father of a legitimate
child, namely, those of protection, maintenance, and education
suitable to his circumstances, he treated him as his legitimate
child ; and when the status was thus fixed, it could not be
affected by subsequent acts of the deceased, by failing to
name him in his will, or by repudiation in any other man-
ner. The statute, together with such acts done under it as
will constitute an adoption, fixed the status of the illegitimate
irrevocably : In re Jessup, 81 Cal. 458, 21 Pac. 976, 22 Pac.
742, 1028, 6 L. R. A. 594.
The three steps that must be taken, as elements of legiti-
mation, must be taken by the father and no one else : 1.
Public acknowledgment of the child as his own; 2. Recep-
tion into his family; 3. Otherwise treating the child as if
it were legitimate.
The lines of demarcation between these steps are not clearly
drawn, are not as distinctly defined as they might be, but
while they are more or less indeterminate they are not mu-
tually exclusive; they seem to overlap, but taken together
in their ordinary significations they give a clear enough
meaning of the legislative intent and while not capable of
exact definition so as to fit every case, they may be applied
with sufficient facility in cases as they occur where the evi-
dence is clear. Now, what does each of these terms mean?
Public acknowledgment as his own child; not merely an ad-
mission of paternity, but something more: (a) It must be an
acknowledgment; (b) It must be a public acknowledgment;
and it may be by conduct as well as by words.
If it may fairly and logically be inferred from all the facts
in evidence that Jose Maria de Laveaga acknowledged in
the manner indicated this claimant as his own child the lat-
ter must be deemed legitimate : Bailey v. Boyd, 59 Ind. 292.
The sum of the acts in the process of legitimation is, the
actual public assumption and exercise of the parental du-
ties owing to a legitimate child. The law imposes duties
but also confers rights upon the father of a legitimate child.
"When he complies with section 230 of the Civil Code, he
acquires rights of a father and becomes subject to the duties;
for example, (1) becomes heir of the child, (2) acquires a
Prob. Dec, Vol. IV— 2(i
402 Coffey's Probate Decisions, Vol. 4.
right to its custody, services, and earnings, under section 197
of the Civil Code. So, if a child acquires the capacity of
inheritance from the father's lineal or collateral kin, they
acquire reciprocally the like capacity as to the child. The
relation may be mutually repugnant but it is that of the law.
Did Jose Maria de Laveaga perform those acts which re-
sulted in the legitimation of this child? After the death of
Basilia in Mexico, her sister, Juliana, nurtured the child un-
til he was sent for by Jose Maria, who received him on Sun-
day, September 21, 1873, and took him immediately to the
house of Dr. Wilhelm Dohrmann, 535 Bryant Street, where
he had arranged for his care. This gentleman had come to
San Francisco in 1868 and was highly respected for his char-
acter and attainments. He was a medical doctor and an
accomplished linguist in German, his mother tongue, in French
and other languages, including the classics; his English he
acquired after his arrival here. At first the doctor dwelt
in the house of his son Frederick W. Dohrmann, but after
about a year he and his wife took a house for themselves,
first on Filbert street, and finally at 535 Bryant street, where
the old doctor and Jiis wife, who was the stepmother of Fred-
erick, kept house. The doctor died in June, 1886; his wife
survived him about eight years.
In this household Jose Maria placed the child pursuant
to an agreement to pay for his board and care and educa-
tion one dollar a day. This agreement had its origin as re-
lated by Frederick W. Dohrmann in several conversations
he had with Jose Maria de Laveaga about this boy, prior to
the latter 's arrival in San Francisco, the substance of which
conversations was that Jose Maria made inquiry as to whether
Frederick Dohrmann had any objection to a boy being placed
in the house and under the care of his father, the doctor,
he com.pensating for the care; the arrangement was con-
summated and the boy placed accordingly. It was in that
house that Frederick Dohrmann saw the boy subsequently
in company with Joseph as he was accustomed to designate
Jose Maria; the boy was called "Joe." Frederick Dohr-
mann had several conversations with Jose Maria after that
about the boy, of whom he spoke in German as "Mein junge"
or "der junge," equivalent in English to "my youngster"
Estate of de Laveaga. 403
or "the 3'oungster. " He also called the boy "Joseph";
the Doctor's wife, that is, the stepmother of Frederick, would
also call him "Joseph"; others familiar to the household
would call him "Joe" for short; the doctor was at this time
about sixty-three years of age, the Dohrmanns were not re-
lated to the boy nor to the de Laveagas ; in one of the con-
versations with Jose Maria about the boy he said he wanted
him to learn German well, and did not care if he forgot
his Spanish; he was apparently affectionate toward the child
and anxious about his mental development ; on the occasion
of the doctor's birthday and other holiday celebrations at the
house the de Laveaga brothers were accustomed to visit there,
and at one time or other Frederick Dohrmann saw all of them
there, and he remembered well Jose Maria and Jose Vicente
de Laveaga ; all the members of the Dohrmann family were
present at such times, Mrs. Paulsen, a sister, three brothers
now deceased, the partner of Frederick, B. Nathan and his
"wife ; his own children and other children would be there in
the daytime to gratulate but not in the evening when the
elders would assemble ; the boy Joseph would always be there.
After the death of Jose Vicente, Frederick Dohrmann re-
ceived from the executors certain papers in envelopes which
are identified and in evidence.
This Frederick W. Dohrmann is a person who, in conjunc-
tion with Jose Vicente de Laveaga, was nominated by Jose
Maria executor of his will, which was among the papers found
in one of the envelopes delivered to him by Mr. Daniel Rogers,
after the death of Jose Vicente, of whose will Rogers was
an executor. The so-called actum was another of the papers
received by him in like manner and at the same time. It
would seem from this that the existence and whereabouts in
San Francisco after the arrival of the boy was not unknown to
some members of the famih^ of Jose Maria, although the lat-
ter had become a permanent absentee from his father's house.
Some of them were frequent visitors at the house of Dr. Dohr-
mann.
At this point it may be pertinent to epitomize the comments
of counsel for the sisters upon the relations of Jose Maria
to his family at the time just indicated.
404 Coffey's Probate Decisions, Vol, 4.
Couusel in alluding to the arrival of the boy Anselmo Sep-
tember 21, 1873, remarked that five months and twenty-four
days thereafter to a day Don Jose Vicente, senior, died. This
date is important and should be lodged in the reserved cells
of the memory of the court" in connection with the arrival
of Anselmo in San Francisco. For nearly six months after
Anselmo 's arrival the senior Don Vicente de Laveaga was
living: he was the head of the family of which Jose Maria
was a member, and there is nothing in this case to justify thi'
conclusion that the relations between him and his father
were not filial and paternal, nothing to warrant the deduction
that Jose Maria had no home in which to receive this boy;
the contrary is shown by the correspondence of Jose Maria
and by the testimony of Miguel and Mrs. Cebrian. This was
the situation of domestic affairs in this city. While he was
at the rancho Los Aguilas he had there a home which could
have been made fit to receive this child; he was not received
there at all; in no sense is there here established a "recep-
tion into the family" or home, although there was a family
and a home into which this child might have been introduced :
This important element is lacking in the case. The burden
was upon the claimant to prove this as a step essential in
the progress of his pretensions; he has not proved it and
it is satisfactorily disproved throughout the family corre-
spondence, in the two hundred and seventy-eight letters from
Jose Maria to Jose Vicente from 1871 to 1880; in the forty -six
letters from Jose Maria to Miguel A. during the same pe-
riod, in the letters of Jose Maria to his mother, and in the
testimony of Miguel A. and the Cebrians. It appears from
these evidences that the relations of Jose Maria with the fam-
ily were pleasant and friendly, and that the reason why he
left home originally was the keeping of late hours which was
distasteful to his father, who desired his children to observe
punctual and regular habits, which desire Ave find perpetu-
ated in his will in the request to his vcife not to allow his
son Jose Maria to reside with her and her daughters, as the
peace and convenience of all his children required it should
be so. The status of this boy was in no manner brought home
to the family of which his alleged father was a member,
neither by name nor otherwise. He was never known by any
Estate of de Laveaga. 405
other name than Dohrmann until after the death of Jose
Maria de Laveaga; according to his own testimony he was
informed for the first time that his name was Laveaga by Dr.
Wilhelm Dohrmann a year before the death of the latter,
which occurred in 1886 ; Anselmo never assumed the name
Laveaga until a year after Dr. Dohrmann 's death and not
even then did he prefix the particle "de"; never until the
year 1895 did he assume the aristocratic cognomen ; not un-
til fourteen years after the death of Jose Maria de Laveaga
did Anselmo take that name; when the boy was taken to the
Cosmopolitan School July 9, 1877, he was entered as "Will-
iam Dohrmann," son of Dr. Wm. Dohrmann: was that an
acknowledgment by Jose Maria of paternity and heirship'/
At Dr. Buehler's German- American School he was known as
Joseph Dohrmann; at none of the various schools was h'i
entered or known as Laveaga .or "de Laveaga," always as
Dohrmann ; so at the Industrial School whence he wrote to
Dr. Dohrmann signing as "Your beloved son, W. J. Dohr-
mann"; at all the schools Dr. Dohrmann was put down as
"parent or guardian" in the column so headed. All this
is singularly significant so far as the name signifies no pub-
lic acknowledgment. Until long after the death of Jose
Maria this boy was known as a Dohrmann everywhere and so
notoriously so that Mrs. Paulsen, daughter of Dr. Dohrmann,
protested. How then can it be claimed that this boy was
publicly acknowledged by Jose Maria de Laveaga when that
alleged sire never gave his scion the family name, that surest
token and most satisfactory sign of public recognition and
paternal acknowledgment? Mr. Justice Works, 81 Cal. 458,
21 Pac. 976, 22 Pac. 742, 6 L. R. A.
Mrs. Blanca Paulsen, daughter of Dr. William Dohrmann,
complained to him that the boy was wild and that she did
not want her family name brought into reproach by his es-
capades, as her brother's boys were in the same school and
ought not to be implicated on account of name with him in
his juvenile misdeeds, but still Jose Maria did not grant the
use of his distinguished patronymic to this mischievous lad
universally known as Dohrmann to the distress of this sen-
sitive lady. In view of the facts in evidence it cannot se-
riously be maintained that Anselmo, the boy claimant was
406 Coffey's Probate Decisions, Vol. 4.
ever publicly acknowledged or instated as the heir of Jose
Maria de Laveaga and his relatives, neither by giving him
the family name nor by receiving him into the family nor
hy the conduct of Jose Maria in doling out certain alms for
him in the nature of corporal works of mercy. What did
he do for the boy prior to his advent from Mexico? Nothing.
After that, when the child came to this city, the attitude
of Jose Maria was to be construed at most as that ol: one
occupying a middle ground, a mere recognition by him of
a charitable claim but not an acknowledgment. Can the
treatment of this boy in such a manner make him heir?
As to the name by which the boy was known in the neigh-
borhood of his foster home and at school, it is clear that it
was not his true name, for it is in proof that he was baptized
Anselmo Jose Slaria, and that he was not related by blood
or marriage to the Dohrmanns; but it was natural that living
in their family and being sent to school from their house
their name should be entered on the record, with the name of
Dr. Dohrmann as parent or guardian. It cannot be inferred,
however, from this that Jose Maria denied and disowned the
boy publicly in the neighborhood, nor in the school world.
His placing the boy in the home of Dr. Dohrmann for care
and culture conferred no authority upon the doctor to change
the boy's name nor to enter himself as his parent or guard-
ian on school registers. The doctor's acts in this regard
were not those of the actual father. Jose Maria placed the
boy with him under the name of "Joseph," and paid for
him according to the agreement, and there the paternal acts
in that connection ended. Whatever the doctor did, whether
of M'him or affection toward the boy, in calling him by his
own name cannot impair validity of the accomplished act
of the true father under the statute, and it was plainly not
pleasing to some of the members of the family, at least one
of whom was angry at the assumption that the boy was a
Dohrmann, for this one, Mrs. Blanca Paulsen, the daughter
of the doctor, testified that she had always known the boy
as "Joseph Laveaga" since he was five years old; she first
saw him at her father's house on Bryant street; she had
seen the senior Joseph at her father's house, at the store of
B. Nathan & Company, at her brother Adolph's house, where
Estate of de Laveaga. 407
she lived for a time, and where he used to call frequently;
he had told her in the German language that this Joseph was
his boy, and she said fo him in German that he ought not
to call the boy Dohrmann, as anything wrong he did at
school was attached to the Dohrmann family and that the
boy ought to take his own name, and he answered to this that
that would be all right later on. Mrs. Paulsen was naturally
not pleased that the boy was brought up on her father and
she complained, but Jose Maria said that it would be all
right in time, he was affectionate toward the child, treated
him as a father would, he called him "Joseph," simply
Joseph,
The conversation as related by Mrs. Paulsen in German
was as follows : ' ' Warum nimt Ihr Sohn nicht seinen Nahmen,
wir wollen nicht das mein Bruder sein Kinder unter seine Un-
nathen leidet, Mr. de Laveaga antworte lassen Sie es nur
gehen spater W'ird er schon seinen eignen nahmen nahmen,"
which is thus rendered into English: "Why does your son
not take his name, we do not want that the children of my
brother suffer for his naughtiness? Mr. de Laveaga an-
swered: You let it go only, later he wall take his own name."
All the witnesses for the claimant testified that the boy
was alv/ays called "Joseph" by Jose Maria, and the wit-
nesses so called the boy, among them Abraham Bachert, who
used to visit the house of Dr. Dohrmann very often with Jose
Maria, and who had known the boy from his fifth year when
the child spoke Spanish and later on German, which was all
he could hear in that house and which he picked up quickly,
as a child might; Bachert always called the boy Joseph, saw
him and Jose Maria together; the latter said to Bachert
"This is my boy," or "my son"; "Here is my child, is
he not a nice looking boy, does he not look like me ? " Bach-
ert would respond affirmatively ; he saw the two together often
in that house, also at the store of B. Nathan & Company,
and at "The Fountain," a family restaurant and amusement
resort, Avith Dr. Dohrmann. Jose Maria used the words in
German "mein sohn," in reference to the boy, those words
mean "my son"; Bachert also saw Jose Vicente frequently
and went with him often to Dr. Dohrmann 's house; some-
times Jose Maria and Jose Vicente and Bachert went there
408 Coffey's Pkobate Decisions, Vol. 4.
together, and the boy was there at such times ; the conduct of
Jose Maria was very affectionate toward the boy when alone
and the same when Jose Vicente was present ; Jose Vicente
called the boy "Joseph"; Jose Maria was pleased with the
boy's learning Qerman and so said to Baehert, to whom he
always spoke in German.
Mrs. Augusta Von Bendeleben testified to a long acquaint-
ance with the boy and his father, who spoke of the boy as
"Joseph" and called him his son; slje also knew Jose Vicente
and saw him when the boy was present at Dr. Dohrmann's and
heard Jose Vicente call the boy, "Joseph."
Bernard Nathan, the founder of the firm which is no\v
Nathan, Dohrmann & Company, and in which Frederick W.
Dohrmann has been from the start a partner, knew the latter *s
father ever since his arrival in San Francisco; he also knew
Miguel A. de Laveaga, and his brother Jose Vicente and Jose
Maria, the last named of whom he became acquainted with
first, and called him Joseph; Nathan conversed with them all
in German, which they spoke splendidly; he saw Jose Maria
most, saw him at the Nathan store and also at the house of
Dr. Dohrmann on Bryant street where they were accustomed
to gather to celebrate the old doctor's birthday and on other
festive occasions ; Vicente came into the store of Nathan quite
often ; Nathan first saw the claimant when he was six or seven
years old at the house of the doctor, the boy spoke Spanish
at that time; Jose Maria told Nathan once that he had a boy
whom he had brought from Mexico and left with Dr. Dohr-
mann; this was told in German, Jose Maria said "Meiu
junge," which means "my boy" or "my son," and he seemed
to be very affectionate toward him; he called him "Joseph"
when he used any name and when he did not use any name he
said "mein junge"; Nathan always knew the boy as "Jos-
eph ' ' ; that was the only name by which he was called so far
as Nathan knew; Nathan had many conversations with Jose
Maria, in one of which he said that he was very well satisfied
with the treatment that the boy received at Dr. Dohrmann's
and that he was glad he left him there ; all that Nathan knew
on that subject he learned from Jose Maria, who always spoke
in German.
Estate of de Laveaqa. 409
It is clear from the testimony of these and other witnesses
that Jose Maria always called the boy "Joseph" or "Joe"
and nothing else ; that is shown by his letters to Dr. Dohr-
mann, the very last one in 1879 so naming him. All the time
the boy was at school under the name of "William" on
registers during the life of Jose Maria, the latter was in his
letters calling him "Joseph." Evidently Jose Maria knew
nothing of this "William" as applied to the child. It
certainly was not authorized nor connived at by him for pur-
pose of concealment of his relations to the boy, and was con-
trary to all his public declarations and documentary formali-
ties, and it cannot be held to modify, much less to destroy,
a status already acquired. In this connection it may be said
that the spirit of Mrs. Paulsen's testimony is that the name
by which the child was known at school was the doctor's work,
that Jose Maria considered it of little importance when the
child was young, and that it was not done by either the
doctor or Jose Maria to conceal the relationship which actually
subsisted between the latter and the child, and, therefore, has
no adverse bearing upon the question of acknowledgment, to
which only is it material.
It may be added that it is natural and common for children
to take the name of the people by whom they are reared, as
the records of this and other courts will show in cases of
change of name by judicial process for the reason that the
person has been usually or universally known by another than
the birth name. It may also be added that in cases of
adoption under sections of the Civil Code from 221 to 229
the child frequently retains its original name, not assuming
the family name of the person adopting, thus presenting an
apparent incongruity. When the name "Sanchez" was used
in the actum it is inferable that it was because the author
of that instrument regarded it as the formal legitimation,
so giving the boy his mother's name as that which before the
final legitimation the boy was strictly entitled to. The paper
itself was, as its statement claims, simply a draft or pre-
liminary instrument preparatory to the execution of a proper
notarial document, which the writer in his ignorance of the
law deemed essential to effectuate his design. His lack of
legal lore, however, and crudeuess of performance cannot altep
410 Coffey's Pkobate Decisions, Vol. 4.
the character of the act if it in itself is such as the statute
prescribed, for when the acts necessary to legitimize a natural
child conform to the statutory prescription they confer
legitimacy without any reference to the intent with which they
are performed: Beatty, Chief Justice, 81 Cal. 435, 21 Pac.
976, 22 Pac. 742'^ 1028, 6 L. R. A. 594.
In his will or testamentary disposition referred to in the
actum and made some time prior thereto, Jose Maria described
the boy by his three full Christian names, using no surname
at all, "My son Anselmo Jose Maria," as he himself was
described in the will of his own father, the senior Don Jose
Vicente, simply as "my son, Jose Maria," and in like manner
described his other children by their first names only.
Likewise in the will of his mother Dona Dolores Aguirre
de Laveaga executed December 30th, 1881, in which occurs
the following clause:
"Cuarto. Como he llegado a oir que mi finado Hi jo Jose
Maria, Soltero dejo uno o mas hijos habidos fuera de Matri-
monio, ahora declaro que no reconozco a semejante hijo o
hijos como nietos mios, y que si no les lego nada, lo hago con
todo conocimientos e intencion. Y ademas anado que, un
cuando posteriormente se presentara alguna Muger recla-
mando haber sido esposa de mi citado hijo y a finado, es mi
voluntad e intencion el no legar nada, ni a ella mi a los hijos
que ella presentara."
The foregoing may be more or less correctly translated as
follows :
"Fourth. As I have heard that my dead son Jose Maria,
unmarried left one or more Sons born out of wedlock I now
declare that I do not recognize such son or sons as my grand-
children, and if I leave them nothing I do so with full
understanding. I furthermore add that although at the out-
come some woman may present herself claiming to have been
wife of my said son deceased it is my Will and intention to
leave nothing neither to her nor to the children that she may
present. ' *
Whatever the claimant did as a child could not alter his
legal situation nor estop him from claiming the benefit of the
act's done by his father ; nor can he be held bound by what he
was induced to do by Jose Vicente, and so far as the conduct
Estate of de Laveaga. 411
of the latter is concerned it is shown that he was cognizant of
the circumstances and strove in his sagacity to bind the boy
and to estop him from asserting any claim to his father's
estate when he should discover his legal rights ; but, of course,
the acts of the boy could not operate such estoppel. The
receipt for the gold watch given in 1888 ; the letter of the boy
signed "J. M. Laveaga" written to Jose Vicente thanking
him for his gift of the property described in the deed v:ere
the work of Jose Vicente, and the signature was so written by
his request because he did not want the boy to use the particle
" de, " and therefore it was omitted. The deed dated July 2,
1889, was the document which described the property for
which the boy thanked Jose Vicente in that way. Both the
receipt and the letter are dated subsequent to the codicil in
which Jose Vicente refers to the boy as the acknowledged son
of Jose Maria; this codicil is dated March 14, 1887 and de-
scribed "Joseph Laveaga, by my late brother J. M. de Laveaga,
acknowledged son of his, ' ' and this codicil, as well as various
other parts of the will of which it forms a part, point's to the
knowledge possessed by this family of the relationship which
the claimant bore to Jose Maria. The conduct of Jose Vicente
leaves no room for doubt, in the mind of the court, that he
was thoroughly acquainted with the fact almost from the day
of the boy's arrival at the house of Dr. Dohrmann, and that
he saw him there in the presence of Jose Maria, and that he
knew the whole story of the support of the boy and the reason
therefor by Jose Maria, and it is fairly inferable that what he
knew was also known to other members of his father's family,
although it may be that it was not a common topic of discus-
sion in the household and was hardly fit for the ears of the
young sisters of his, and it could scarcely be expected that
the subject could be a welcome theme for treatment in the
family circle whence the father was expelled in June, 1868,
and from which he continued to be excluded forever after.
But it is said that this is not established by the evidence, for
the letters of Jose Maria and testimony of Miguel and Mrs.
Cebriau show the contrary, and prove that Jose IMaria had a
home' into which to receive this boy and into which he was
never introduced. Mrs. Cebrian says that' the reason why
Jose Maria left home was late hours. Jose J.Iaria left the
412 Coffey's Pkobate Decisions, Vol. 4.
paternal home June 13, 1868, when this lady was between
twelve and thirteen years of age, she having been born Octo-
ber 27, 1855. On the day of his departure he wrote to his
father a letter of which the following is a translation :
"San Francisco, June 13th, 1868.
* ' Mr. J. V. de Laveaga,
"Present,
" My father :—
"I ignore up to this moment what Vicente might have done.
I have thus sworn it to my mother and I swear and verify it
by this.
"If Vicente had done anything, I have not' induced him to
do it and let him shoulder the responsibility. Notwithstand-
ing the statement, my mother told me I had no religion and
therefore my oath was of little importance. She told me I
had one of the blackest hearts and a little face of Saint
Anthony with the soul of a Demon. That I did not love any
one of my family; that it seemed to me that you both were
living too long, and a great many other inculpations. I limit
myself to record these fresh as they are, for memory's sake.
"After this what could I answer that would be believed
in the truth of my explanation? Nothing.
"Why should I have the unnatural sentiment, that it would
seem to me that you both were living too long? Deduction?
Inheritance? Formally and in whatever manner required I
renounce if, thanking my father for what he has done for me,
so that I can support myself through my own self, and if by
doing so I can wipe out from my mother's mind such a terri-
ble thought.
"My resolution is taken, and if I find the approval of my
father -at least to the extent that he should not curse me, I
will to-day deliver of such a terrible monster those who wish
to make him appear thus, by moving somewhere else, and may
they answer for what may befall to your son,
"JOSE MARIA."
The receipt of this letter is acknowledged by the father, the
senior Don Jose Vicente, by a memorandum in his handwrit-
* ing appended to it on the same paper, translated as follows :
Estate of de Laveaga. 413
"June 15, 1868.
"At seven in the afternoon I received this, and I answered
him by comnion consent, that he was free of the home control ;
since that night he has not slept at the house. Since February
he is employed with Mr. T. Lemmen Meyer, earning one
hundred dollars per month."
It would appear from this that there was some deeper
reason for his departure from home than late hours, and it
does not appear that he and his father ever came together
again until the latter 's last moments. It may be true, as
Miguel testifies, that his father went to Lemmen Meyer's
nearly every day where he could have seen Jose Maria, but
it does not appear that he ever saw or conversed with him
at that or any other place during this period. After Jose
Maria left his father's house in 1868 to 1875, when he pur-
chased the ranch, to 1876, when he moved to San Benito
permanently, to 1879, w^hen he returned to San Francisco,
where he sojourned for a short season bankrupt and homeless
until he left for Colorado in December, 1879, dying in Den-
ver April 21, 1880, he could not be said to have had a home
of his own in which to rear and educate a tender child. He
was barred from his father's house by the act of that father,
which did not cease to operate with his life, and by his will
was perpetuated in the request to his wife "not to allow my
son Jose Maria to reside with her and my daughters ; if they
marry she may or may not consent thereto. The peace and
convenience of all my children requires it should be so." So
from home he was still an exile; although he was abiding in
the vicinity at times, he was a mere inmate of a lodging-house,
with but one room for his accommodation; there was no return
of the prodigal son to his father's house and no invitation
thither when he returned from the ranch in the winter of
1879, and Miguel swore that he did not know where Jose
Maria lodged in that interval. If it were legally requisite
that he should take the boy into his "home," he had no such
domestic establishment; but the law did not require this; the
expression is not "home," it is "receiving into his family,"
Avhich means, in the case of a bachelor, receiving him under
his care, protection, custody, and control, and may be accom-
414 Coffey's Pkobate Decisions, Vol. 4.
plLslied by such means as the father considers proper; but
counsel says that while Jose Maria was at the Rancho Los
Aguilas he had there a home which could have been made fit
to receive this child and he was not there received at all.
The reason for this may be found in the testimony of Peter
Andresen, a resident of Santa Cruz, and a beneficiary in the
Avill of Don Jose Vicente, the younger, and with whom he
was on fairly intimate terms. Andresen testifies that he
came to California in June, 1868, from Illinois, having been
born in Germany, he lived in San Francisco until 1875 when
he went to Santa Cruz and remained there until 1878, when
he returned and went into business at Sutter and Montgom-
ery streets, as a merchant tailor ; in September, 1879, he went
to Mazat'lan, Mexico, he came back and settled in Santa Cruz
in 1880 and since continued there; he knew Dr. Wilhelm
Dohrmann very well, became acquainted with him in Wood-
ward's Gardens at the celebration of the German victories
over the French, and the year after that Andresen began to
visit the doctor's house; the doctor was a jovial gentleman
and Andresen liked his compam^ very much; they used to
meet very often at "The Fountain," in the basement south-
east corner of Sutter and Kearny streets, a family restaurant
and beerhall where Dr. Dohrmann and his friend F. A.
Schroder used to visit. Andresen became acquainted with
Jose Vicente de Laveaga, used to make his clothes when cutter
for Wright & Harmon, merchant tailors, 539 California street,
corner of Summer ; they used to ride horseback early in the
mornings two and sometimes three times a week; they often
met at a place corner of Clay and Dupont streets where there
was a drink called "Knickebein," which they were accus-
tomed to imbibe and enjoy; they also went at times to
Kunstler Hall, Mayrisch's place, a very respectable resort, on
the corner of Clay and Kearny streets; Andresen always
visited Dr. Dohrmann 's house in company with Jose Vicente.
Andresen made a visit to the ranch Los Aguilas on one
occasion when Jose Maria gave him a great reception and
asked him when he was last in San Francisco and M'hen he
saw his son at Dr. Dohrmann 's; Andresen asked Jose Maria
where his son was boru and why he did not bring the boy to
the ranch, Jose Maria answered that the boy was born in
Estate of de Laveaga. 415
Mazatlan and the reason why he did not bring him to Los
Aguilas was that it was no place for him, no women there, no
schools, and the boy was better off in San Francisco where he
was well cared for ; this was in 1878, when he spent four days
at the ranch and had a good time with Jose Maria.
It thus appears that Jose Maria did not take the boy to
his ranch, not because he wanted to conceal the relationship,
and this is the material bearing of such evidence, if we con-
strue the statute correctly, but because the boy was better
off at Dr. Dohrmann's house; the ranch was an unfit place
for a child; Jose Maria's own habits were not exemplary; h&
was not really the master of the situation from April, 1877,
until he quit, he was but a pensioner all that time; he was
inpecunious from the start, had a mistress there much of the
time, and the situation was altogether unsuited for the mental
and moral cultivation of this child. Certainly he was better
off, if life at the ranch is faithfully depicted in the record, by
being kept in the house of his friend Dr. Wilhelm Dohrmann
under the agreement to pay for his board and care and edu-
cation at the rate of one dollar a day, which agreement was
carried out to the extent of the ability of Jose Maria during
his lifetime, as is proved by the little volume called "Joseph's
Book," which shows by the entries made therein payments
aggregating $1300 during five years, or an average of $260 a
year from and including 1874 to and including 1879.
This fact of support is further proved by Hansen, by F.
W. Dohrmann, by the letters of Jose Maria to Dr. Dohrmann,
by the letter of May 4, 1875, to Jose Vicente, and by his
letter to Miguel dated July 2, 1879, and that his own death
should not leave the boy destitute further provision was
made by the will of November 8, 1877, in which all his estate
was left to his son, this claimant, with the understanding that
he should not enter into possession until his majority and
when he had acquired a profession, and for this purpose it
was enjoined upon the executors to give him a thorough
education, and in the event of his death everything to go ta
Jose Vicente. When he became bankrupt Jose Maria com-
mended this boy to Vicente's care. His letter to Vicente of
October 31, 1879, inclosing the copy of the letter to Dr. Dohr-
mann of October 29, 1879, serves to substantiate this claim.
416 Coffey's Probate Decisions, Vol. 4.
It is shown also that the balance of the debt due for the
board of the boy was liquidated by Vicente, and that Jose
Maria's safe was sold by Vicente's orders, and proceeds ap-
plied to the same purpose. A great number of letters, three
or four hundred, have been introduced to show^ the existence
of friendly relations between Jose Maria and other members
of his family; about three hundred of these are to Vicente,
and forty or fifty to IMiguel, but they do not militate in any
wise against the claimant's position, for it is not denied that
Jose Maria was friendly with Vicente to the last, as is shown
by his letter to Dr. Dohrmann and his will; the letters to
Miguel are mere business letters nearly all w^ritten in the
years 1878-79, the w^iole of them having little importance with
respect to the issues of this controversy, certainly they are
in no sense sufficient to overcome the evidence in favor of
claimant. Some of these letters, the two to his father and
the two to Vicente and Miguel showing payments to Dr.
Dohrmann, were produced with apparent reluctance, as also
the letter to Vicente inclosing the copy of letter to Dr. Dohr-
mann concerning the claimant. But, it is said, that, in these
contributions to the support of the boy, Jose Maria was at
most simply occupying a middle ground and merely recogniz-
ing a charitable claim, which by no means amounted to an
acknowledgment of status. This argument is more creditable
to the ingenuity than to the candor of counsel.
Reverting now to the will and the laetum ; the fact that
these documents with the other effects of Jose Maria passed
into the possession of Jose Vicente and were suppressed until
August 14, 1894, is to be taken into account as a most signifi-
cant circumstance.
In the interval succeeding the death of Jose Maria, Dr.
Wilhelm Dohrmann died in June, 1886, and his wife Dora-
thea, in 1894, carrying out to the end the trust assumed at
the instance of the natural father of this claimant.
Whose fault was it and whose accountability that the claim
of this boy remained so long in abeyance? Upon whom was
enjoined the duty of making manifest the full truth con-
cerning the claimant? To whom w^as committed the care of
the future of this child and upon whom was imposed the obli-
gation of giving him a thorough education for some profes-
Estate of de Laveaga. 417
sion suited to his station and capacity? "Who was to benefit
by the death of this boy?
By the suppression of these documents and by these deaths
the evidence of the boy's rights might be supposed to have
been destroyed, but after the death of Jose Vicente and the
admission to probate of his will the truth came out and the
papers were found to be preserved. Jose Vicente died on
August 14, 1894, and after that event Daniel Rogers, one of
his executors, in company with Miguel A. de Laveaga, ex-
amined his private box in the safe deposit vault and found
certain papers therein which Rogers delivered to Frederick
W. Dohrmann; these papers were in one envelope indorsed
"The Will of Jose Maria de Laveaga," and another indorsed
**To be delivered to Mr. Dohrmann after his death"; one
envelope was superscribed in Spanish "Testamento de J. M.
de Laveaga, fha. Nov. 8/1877," the other in German "Im Falle
meines Todes an Herrn Dr. Wm. Dohrmann abzugeben-535
Bryant St.," in black ink with the interpolation in pencil, "or
F. Dohrmann, San Francisco," the German of which ren-
dered into English is, "In case of my death to be given to
Mr. Dr. Wm. Dohrmann or F. Dohrmann." It is in evidence
that the superscriptions on the first envelope alluded to here-
inabove and on the second were in the handwriting of Vicente.
These papers, according to the testimony of Rogers, were
found by him in the safe deposit box belonging to Jose Vi-
cente de Laveaga in the vaults of the California Safe Deposit
and Trust Company sometime in the month of August, 1894,
after the death of Vicente, and were by Rogers delivered to
Frederick W. Dohrmann, one of the persons named in the
will of Jose Maria as executor thereof, the other executor
being the deceased Jose Vicente. For all the years between the
death of Jose Maria and that of Jose Vicente these documents
were in the possession of the latter and by him suppressed
in derogation of the rights of this claimant.
This will was an act deliberate in its production and un-
commonly circumspect in its execution. The testator not con-
tent with its statutory sufficiency as an olographic instru-
ment added in his own handwriting an attestation clause in
full form and called in to witness two persons, A. M. Abrego
and Green Devaul, who were at that time employed on the
Prob. Dec, Vol. IV— 27
418 Coffey's Peobate Decisions, Vol. 4.
Raneho Los Aguilas. With unusual solemnit}' was this testa-
mentary act accomplished. The circumstances of the attesta-
tion were testified to in this case by Abrego and Devaul. the
former of whom said that he signed the paper as a witness
about 8 o'clock in the evening after supper; it was customary
for him after supper to go to bed, but on this occasion Jose
Maria asked him to remain up for a while and then he asked
him to sign the paper; Jose Maria asked Abrego to call in
Elias, the cook, to act as another witness, but this person
coming in, said his hands were not clean, he was engaged at
his work, and then Green Devaul, a ranch hand, was brought
in, and Jose Maria read aloud the document and then declared
it to be his last will and signed it and asked Abrego and De-
vaul to sign as witnesses and they did so, and that ended the
tra'isaction of the execution of the will.
Green Devaul 's story of the way in which he came to sign
as witness was this: Sometime about November 1st, when
Devaul was at the little place where the workmen stayed on
the ranch Santanita, about four miles from Jose Maria's
house, a little bo}' came over with a note from Jose Maria
requesting Devaul to go there on that evening and he went;
it was dark when Devaul reached there and he put his horse
in the bam and went in and sat down by the fire a little
while ; supper came down and they had a drink or two and
then supper; after the meal was consumed Jose Maria pro-
duced cigars and they had a smoke; after the cigars they
turned around to the fire and in a short time Jose Maria took
a small table and hauled it up to the fireplace to where they
were seated, and he took out this document, the will, and
said: "Mr. Devaul, I am making what we call a testament."
"Well," said Devaul, "Mr. Laveaga that is what we Mis-
sourians call the Bible." "Well, all right," he said, "we
shall call it a will"; then he said, "I wish to have you and
Mr. Abrego witness this will, ' ' Devaul refused to do it for a
while but finally subscribed as a witness and after that they
resumed their cigars and turned around to the fire and sat
and smoked, "me and Mr. Abrego." Devaul thought Jose
Maria signed the will at the time, but was not positive; the
testator was doing something as Devaul was sitting at the
back of him, the witnesses just turned around, the table was-
Estate of de Laveaga. 419
behind the witnesses then; he said, "Mr. Devaiil, this is Vi-
cente de Laveaga; once in a great while we change our wills;
sometimes he makes his will in my favor and then again I
make mine in his favor," that is just what he said as near
as can be recalled; Jose Maria took up the will then and he
read it and turned it back to the witnesses two or three times
and laid it down; according to that will Devaul said that
Jose Maria gave his property to Vicente de Laveaga ; Devaul
never read that document nor did Abrego read it in his pres-
ence ; Jose Maria did not tell them anything as to its contents ;
he read part of it to them ; Devaul supposed he read the
whole will; Jose Maria turned it over a time or two and
read it and said, "Mr. Devaul, I have willed this property'-
to my brother Vicente de Laveaga"; Jose Maria made no
mention of the child, said nothing about a son or child; De-
vaul arrived at the house about 6 or 7 o'clock in the evening
before supper, and remained continuously in the house until
the will was signed and was during all of that time in the
company of Jose Maria and Abrego ; so far as Devaul knew
that paper was prepared before his arrival; the document was
not written after he arrived ; Elias, the cook, was not re-
quested to be a witness so far as Devaul knew ; when the boy
arrived at Santanita with a message from Jose Maria it was
about 4 o'clock in the afternoon; it was after the wit-
nesses had eaten supper with Jose Maria that the latter ac-
quainted Devaul with the reason for wanting him there;
the conversation at table was in the American language ; De-
vaul did not hear Jose Maria talk any Spanish that night , and
while the business was going on the cook was cleaning off the
table; the will was signed on a small table by the fireplace,
in the small room off the dining-room; it was all done as
related, testified Devaul.
So far as these witnesses differ in detail, the advantage is
with Abrego, as his story seems consistent and correct and
there are certain intrinsic infirmities in the testimony of De-
vaul that suggest mistakes in memory; but they agree in the
essentials of the execution and as to all apart from that the
court does not consider it important, in the face of the entire
record.
420 Coffey's Peobate Decisions^ Vol. 4.
It cannot be doubted, after an examination of the evidence
in this case on all sides, that the claimant was acknowledged
in the strictest and fullest sense to Jose Vicente. It does
not matter what construction, as to legal effect, Vicente placed
upon the ackno^dedgment, for his views of the law had noth-
ing to do with the case. The controlling factor was the act
of the father Jose Maria, and that act was communicated to
Vicente by Jose Maria and during the latter 's life. It was
known that Jose Maria recognized the boy as his son and
supported him and the continuation of this support was com-
mended to Vicente after the father's death, and by his acts
it is shown that Vicente accepted the responsibility as the
result of his knowledge of the boy's origin and rights. To
say the least, it is improbable that Miguel and Mrs. Cebrian
were not acquainted with the facts. Mrs. Paulsen and others
testified that they saw Miguel at Dr. Dohrmann's house after
the boy arrived which was September 21, 1873; but Miguel
swears that he ceased to visit that house before September
22, 1873, the very day after the boy was placed there, this
date being fixed by a letter from Miguel to Jose Vicente dated
September 22, 1873, which is connected with the previous
letter dated August 27, 1873, which contains this paragraph
in reference to his social relations with Dr. Wilhelm Dohr-
mann, "The old doctor and I amuse ourselves tremendously.
We go very often out fishing on Long Bridge, and also catch
an enormous amount of fish. On Thursday I brought home
about sixty, among them one that weighed a pound and a
half"; the other letter dated September 22, 1873, and post-
marked September 23d, contains at the close the sentence,
"On account of father's sickness the fishing has ceased,"
Miguel swore that he did not remember ever having been in
Dr. Dohrmann's house after the date of that letter, although
prior to that time he was and had been in the habit of visit-
ing the old doctor quite frequently and socially. It is rather
a remarkable coincidence that the cessation of these visits
occurred the day after the arrival of the boy. Miguel also
testifies that he had a conversation with Jose Maria in rela-
tion to a boy who was domiciled, or whom he intended to
domicile at the house of Dr. Dohrmann ; this conversation
occurred sometime in the summer of 1873; Jose Maria told
Estate of de Laveaga. 421
Miguel that there was a woman in Mazatlan who was con-
stantly writing him for money for the support of the boy,
whom she claimed to be his illegitimate child, but Jose Maria
said that he did not think it was his child, because the woman
used to run around with other men ; at the same time he
thought of bringing him to San Francisco and putting him
under the care of Dr. Dohrmann, and that he would do so
on account of his being afraid that the woman might write
to his father; that was the only time that Jose Maria referred
to the boy, so far as Miguel could remember, although he
thought that Jose Maria might have told him that the boy
had come to Dr. Dohrmann 's. Miguel testified that to the
best of his recollection he never saw this claimant Anselmo
in the lifetime of Jose Maria, nor at all until after March,
1888.
Miguel is mistaken in memory ; his recollection must be at
fault in several particulars which do not chime wdth the
established circumstances of the case. As to Miguel's narra-
tive of his interview with Jose Maria in the summer of 1873,
there are in it certain indicia of improbability :
1. Basilia was dead a year prior to that time and Juliana
was totally illiterate; if she secured the services of another
to conduct correspondence the letters should have been pro-
duced to prove the assertion of blackmail or an attempt in
that direction.
2. Why did it take five years for this alleged design to
culminate or come to a head?
3. Why bring the boy here to escape blackmail and quin-
tuple the cost of maintenance over that in JNIexico?
4. Why, to escape a communication by the blackm^ailers
to Jose Maria's father, bring the boy to San Francisco in
the face of that father, as it were, and into the house where
Miguel and Vicente visited frequently, and during that
father's last illness with the natural danger of disherison?
5. It is not shown that Basilia was a promiscuous person;
on the contrary it is established that except for the incident
which was the inception of this controversy she was innocent.
There are other considerations impairing the value of
Miguel's recital, which it is unnecessary to discuss in detail
422 Coffey's Probate Decisions, Vol. 4.
here, consideriug the weight of evidence opposing his state-
ment.
Apart from the testimony of Miguel and Mrs. Cebrian there
is nothing in this record to point to a denial; mere silence
and nonallusion to him has no more weight than other nega-
tive testimony. The oral evidences of admissions of paternity
and acknowledgment are abundant and unrefuted and come
from credible sources, almost without exception, and if it
be said that for the most part they belong to the Dohrmann
environment, so also did Miguel, who was, according to his
own testimony, a daily and nightly associate of the doctor,
and so also was Jose Vicente, a friend and familiar of the old
doctor and his son, Frederick W. Dohrmann with whom he
was coexecutor of Jose i\Iaria's will, and to whom he directed
the written evidences of this boy's status which furnish the
irrefragable muniment of his title to a share in the name
and estate of de Laveaga. Jose Maria orally declared his pa-
ternity and acknowledged this boy to nearly a score of per-
sons in various walks of life and in different occupations and
Jiving apart from each other, although some of them mingled
in social intercourse in respectable resorts and frequently met
at the house of the old doctor on his birthday and other fes-
tive occasions where there were about as many de Laveagas
as Dohrmanns present ; as IMiguel himself saj'S, Jose Vicente
and he used to visit the Dohrmann house and play chess at
times with the old doctor, and they all used to visit Kunstler
Halle and play cards, whist three or four times a week, poker
about every evening, and other games and sometimes they met
for their pastime at the room of Jose l\Iaria.
Witnesses of this class cannot be whistled do^^^l the wind by
insinuations that they are below the social grade of those who
voluntarily seek their society and court their company. As
against such witnesses on the score of oral declarations there
is nothing substantial but negative testimony: Estate of Jes-
sup, 81 Cal. 456, 21 Pac. 976, 22 Pac. 742, 1028, 6 L. R. A. 594.
There is no contrary evidence as to declarations denying
paternity except by Miguel and his sister Mrs. Cebrian. As
to Miguel's testimony on this point it does not avail at best be-
cause the statements are alleged to have been made in the
summer of 1873 before Jose Maria had the boy brought to San
Estate op de Laveaga:. 423
Francisco or made up his mind to legitimate liiin. All the
allegations of the cross-petition for this claimant are proved
by ample, oral and documentary evidence uncontradicted and
unimpeached. There is no evidence against care, custody,
support, control or education, and these constituents of recep-
tion and otherwise treating and acknowledgment must be
taken as proved clearly and fully. The evidence opposing
the cross-petition points merely to the question of publicity
of acknowledgment and consists only of alleged single declara-
tions by Jose Maria in the summer of 1873 before the boy
came to San Francisco and a single declaration to Mrs. Ce-
brian in 1877. Even if these denials be taken as true, they
would not destroy the absolutely satisfactory evidence to the
opposite effect adduced in behalf of claimant. It can scarcely
be said seriously that such evidence could destroy the will,
the actum, and the other documents, and all the oral
proofs. Even if there were no reason for discrediting this
testimony, as to denials of paternity, it is in.sufficient to
counteract the ample and conclusive evidence of admissions
of status. In itself the oral evidence in support of the cross-
petitioner would warrant a decision in his favor. The will,
the actum, and other documents later in date merely confirm
beyond refutation or reproach the publicity of the prior oral
acknowledgments, which in themselves satisfy the law.
The prayer of the cross-petition is granted.
Estate of de Laveaga was before the supreme court in 119 Cal.
651, 51 Pac. 1074; 142 Cal. 158, 75 Pac. 790.
In the Matter op the Estate op JOSE VICENTE DE LA-
VEAGA, Deceased.
[No. 15,120; decided December 6, 1899.]
Legitimation of Child. — Plenary Proof of Paternity is required
under the code provisions for the legitimation of illegitimate chil-
dren.
Legitimation of Child — Liberal Construction of Code. — The statu-
tory provisions for the legitimation of illegitimate children are to
be construed liberally, but liberal construction does not mean the
frittering away of the written law.
424 Coffey's Probate Decisions, Vol. 4.
Legitimation of Child — ^Acknowledgment "by Parent. — Aflraissions
of paternity are not equivalent in legal effect to the acknowledgment
of the child as the parent's own; mere admissions of paternity by the
father are evidence of paternity, but by themselves are not evi-
dence of acknowledgment. By acknowledgment is meant that the
father must acknowledge the child as if it were Ms own legitimate
offspring; and his' acts and declarations to establish this must be
open and not secret; that is, they must have the ordinary and usual
publicity attendant upon a legitimate relation and status.
Legitimation of Child. — When the Status of Legitimacy is once
attained by an illegitimate child, it cannot thereafter be affected by
acts of the father in failing to name her in his will, or otherwise.
Legitimation of Child — Consent of Mother. — While under the code
it is not necessary that the consent of the mother, that is her affirma-
tive agreement, be given before the legitimation of a child can be
effected by the father, yet if the mother successfully prevents the
father from exercising paternal authority over the child, and he does
not perform the acts required of him under the law, no legitimation
takes place.
Legitimation of Child. — The Mother of an Illegitimate Child is
entitled to its custody under section 200 of the Civil Code, but after
its adoption or legitimation by the father under section 230, he is
entitled, under section 197, to all the rights that he has over a legiti-
mate child. But before he can assert his rights under section 197,
and deprive her of hers under section 200, the child must be made
legitimate under section 230.
Legitimation of Child — Acts and Intention of Father. — For a father
to legitimate or adopt his child under section 230 of the Civil Code,
he must perform all the acts required by the statute; his intentions
and plans, if not carried out, are not sufficient.
Legitimation of Child. — The Evidence in This Case fails to show an
acknowledgment by the father, or a reception into his family, of his
alleged illegitimate child.
Case of Dolores de Rivera, claiming to be Dolores Apolonia
de Laveaga, daughter of Jose Maria de Laveaga, deceased,
an heir to Jose Vicente de Laveaga, deceased.
Graves & Graves, W. L. Pierce and W. S. Wood, for the
claimant.
COFFEY, J, The trial of the case of the claimant Anselmo
was far advanced, for about two months in actual opera-
tion, when there intervened the claimant Dolores Apolonia de
Rivera. Her petition was filed November 29, 1898, nearly
Estate op de Laveaga. 425
two years after the petition of Anselmo, which was filed
January 11, 1897, and follows the same form in the presenta-
tion of her case. She claims to have been born in 1872 of one
Jesns Bustillos, by Jose Maria de Laveaga,
The principal witness in support of this claim is one
Felizardo Flores, who testified to an acquaintance with the
late Jose Maria de Laveaga begun at the house of Jesus Bus-
tillos, which ripened into intimacy so that witness used to
accompany Jose Maria to places of amusement and some-
times to his room; witness could not say that they were
friends, but occasionally Jose Maria communicated things to
him; Jose Maria worked in the mercantile house of T, Lem-
men Meyer, and Flores was engaged in various small occupa-
tions; they came together mostly in the evenings in the house
of Jesus Bustillos, met there Antonita, Carmelita, Josefa, and
other members of the family; Francisco Montijo was there,
also, and their mother; Flores saw Miguel de Laveaga at
the house of Mrs. Bustillos at least once, when he was intro-
duced to him, then and there; he saw him there after-
ward several times; in the year 1870 and he believed also
in 1871 and 1872. Flores used to see Jose Maria tliere
frequently; the witness did not account himself exactly as
the friend of Jose Maria because the latter was on a plane
superior to him socially as he considered. Flores had known
Dolores Apolonia de Rivera since she was born; before
her marriage she called herself Lolita Laveaga; the witness
was there when the woman was confined, but he did not
remember that he was there at the moment of the birth, which
took place in 1872, during the daytime; Flores happened to
go there during the woman's sickness and saw Jose Maria,
who sent him to get a woman to assist her, telling him to
stay there to be of service ; the witness obtained the assistance
of Mrs. Maria Morales, who lived on Commercial street near
the wharf; she came immediately with him and waited on
the woman ; after the birth of the child he went to the count-
ing house of Lemmen Meyer and told Jose Maria that a little-
girl (nina) was bom; Flores wished him joy and h 
