143 Minn. 328 | Minn. | 1919
Frederick A. Berdell died'January 29, 1917, intestate. He was unmarried. Respondent claimed to be his daughter and claimed his estate. The probate court denied her claim. She appealed to the district court. She prevailed there and other claimants of the estate, relatives of deceased, appeal.
The alleged acknowledgement was by a letter claimed to have been written by deceased to respondent in 1915. Deceased then lived at Odin, Minnesota, and respondent at Los Angeles, California.
The material part of the letter as testified to by respondent was as follows: “I am told you should have from me a letter, signed by a witness showing that you are my child and I am your father, and this letter is to show that you are my child and I am your father, and I had Ole A. Larson sign it as a witness.
“With love, your father,
“F. A. Berdell.
“Ole A. Larson.”
Appellants contend that this was error, that in order to make the proof contemplated by the statute the writing itself must be in existence and must be produced in court, “that unlike other writings that have become lost, secondary evidence in this case is not admissible.” We do not understand this to be the law. Secondary evidence of a lost instrument may be received, even though the instrument be one which the law requires to be in writing. 2 Enc. Ev. 317, 318; In re Devoe’s Estate, 113 Iowa, 4, 84 N. W. 923; Taylor v. Riggs, 1 Pet. 591, 7 L. ed. 275. Counsel quotes the language of the court in Pederson v. Christofferson, 97 Minn. 491, 502, 106 N. W. 958, 962, that “the only competent proof that the testator acknowledged the contestant to be his child was a writing signed and witnessed as the statute requires.” But the court was plainly- speaking of the necessity of written, as contrasted with oral, acknowledgment of paternity, ánd had no reference to the proper means of proof of the writing when one is made.
Order affirmed.