148 P. 522 | Cal. | 1915
George E. Loyd died, leaving a will which contained no mention of Charles Hicks. The will was duly admitted to probate, and at the proper time Hicks instituted a proceeding to determine heirship, claiming to be entitled to succeed to a portion of the estate as the illegitimate acknowledged son of the decedent. The findings and decree were in favor of his claim, and the beneficiaries named in the will appeal from the decree and from an order denying their motion for a new trial.
The court found that the plaintiff, Charles Hicks, is the illegitimate son of George E. Loyd and one Mary Hicks, and was born to them out of wedlock on March 4, 1861, in the state of Iowa. It further found that on June 22, 1861, at Center-ville, in the state of Iowa, said George E. Loyd "in a writing signed by him in the presence of one Archibald Hicks, a competent witness, acknowledged himself to be the father of the said Charles Hicks, plaintiff; that said writing, so signed as aforesaid, was and is in the words and figures following, to wit:
"`Geo. E. Loyd.'"
The statement on motion for a new trial shows that there was a conflict in the evidence on the issues in controversy, *87 and the findings are therefore beyond review here. The appellants assign no errors of any consequence on rulings of the court in admitting or excluding evidence. The appeal from the order denying a new trial is without merit.
The real question is whether the findings support the conclusion that Hicks is entitled to succeed to a part of the estate as heir of Loyd, and this question is properly raised on the appeal from the judgment.
Section 1387 of the Civil Code provides that "every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child . . ." If this is the law governing the rights of the parties, the findings quoted fully establish plaintiff's status as heir. The construction of section 1387 has been settled by Blythe v. Ayres,
The appellants contend, however, that plaintiff's rights must be defined by the statutes of 1850 (Stats. 1850, p. 220), in force when the paper of acknowledgment was signed. The statute is very similar in terms to the foregoing provision of section 1387, but it had been held, in two cases decided prior to the enactment of the codes, and of the rules of construction therein contained (Civ. Code, sec. 4), that such statute, being in derogation of the common law, should be strictly construed. (Estate ofSandford,
Whether plaintiff's position could be maintained under the statute of 1850, as interpreted in the Estate of Sandford andPina v. Peck, need not be here decided, for we are satisfied that section 1387, rather than the statute of 1850, is the measure of plaintiff's rights. Section 1387 appears in the chapter of the Civil Code dealing with succession. It declares *88
that certain persons are heirs of certain others. It is simply a statute of succession or inheritance. And so this court has decided. (Estate of Magee,
The judgment and the order denying a new trial are affirmed.