108 P. 499 | Cal. | 1910
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *538 This is an appeal from a decree distributing all of the property of the estate of deceased to William Stephen Bennett and Nellie Florence Bennett, and from an order denying a motion for a new trial made by the administrator of said estate and two brothers and a sister of deceased. The application for distribution was one made under section 1658 of the Code of Civil Procedure by said distributees, claiming to be adopted children of deceased under the provisions of section 230 of the Civil Code. This claim being opposed, the application was heard by the court and an advisory jury, and the latter found in response to questions submitted to them that deceased was the father of said petitioners, that he publicly acknowledged each during its minority as his own child, that he received each during its minority into his family as his own child, and that he otherwise treated each child during its minority as if it was his legitimate child. The trial court adopted these findings of the jury.
It is earnestly contended that the evidence is not sufficient to sustain these findings. All of them are essential to the affirmance of the decree, section 230 of the Civil Code, providing that: "The father of an illegitimate child, by publicly 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 were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth." Different views have *539
been entertained by justices of this court whether the existence of a family into which the child can be received is essential to an adoption under this section, but that question has been finally determined in the affirmative by this court in Estate ofDe Laveaga,
Material facts of the case concerning which there is no dispute are as follows: Deceased was born July 29, 1837, and died intestate April 4, 1907, leaving an estate valued at about $21,000. He left two brothers and a sister, the brothers residing in Los Angeles County and the sister residing in the state of Illinois. In 1853 or 1854 he settled in Alexander Valley, Sonoma County, on what was thereafter known as the Gird Ranch, and this continued to be his home until the time of his death. He was never married. No person claiming relationship to him ever resided there with him other than the petitioners here. About the year 1865 or 1866 Mr. and Mrs. Fletcher, husband and wife, came to this ranch, bringing with them a half Indian girl about three years old, called Alice. For a time Fletcher worked for the deceased on the ranch, but left the neighborhood within two or three years and never returned. Mrs. Fletcher and Alice remained on the ranch, Mrs. Fletcher doing the general housework, and Alice helping as she grew older until at the time of her marriage she was doing a great part of the housework and much farm work outside. During all of this time deceased, Mrs. Fletcher, and Alice lived in the same house and ate at the same table, Mrs. Fletcher and Alice sleeping in one room and deceased in another. Deceased was a highly educated man, and took an interest in teaching Alice to read and write. He always treated her kindly and much as any one would treat a child in his household. She finally married one Owen Bennett, and lived with him as his wife for a short time, when they separated and she resumed her life on the Gird Ranch with Mrs. Fletcher and deceased, but the marriage between Bennett and herself was not dissolved until after the death of deceased. The manner of living was the same as before her marriage, she continuing to occupy a sleeping-room with Mrs. Fletcher, and deceased occupying another room. She worked about the ranch as before. She was never paid any wages. On May 22, 1885, she gave birth to William Stephen Bennett, one of the petitioners. Deceased sent for and paid the doctor. *540 The boy was kept on the place, and there grew to manhood, being treated practically as any boy raised on a farm. As he grew older he worked on the ranch and attended the public school. Deceased always manifested a kindly interest in him and assisted him in his education. He always went by the name of Bennett, and was registered at school under that name. He was never paid any wages for his work. In the year 1895, Mrs. Bennett gave birth to the other petitioner, Nellie Bennett, who thenceforth was one of the household. This child was always known as Nellie Bennett. Deceased always treated her kindly. The evidence very clearly establishes that Mrs. Bennett's husband was not the father of Nellie. It must also be taken as establishing that he was not the father of Stephen. The only evidence as to the year of the marriage was to the effect that it occurred in the year 1880, and there was no evidence to contradict that given to the effect that Bennett and Alice separated not later than the year 1881, and never thereafter cohabited or even saw one another until long after the birth of Nellie, except on one occasion when Alice saw him at a distance, saving and excepting evidence to the effect that Alice had on several occasions admitted to others that Stephen was Bennett's child. The evidence was clearly of such a nature that we cannot say that the jury and court were not warranted in concluding that Stephen was not Bennett's child.
The only evidence that deceased was the father of these children was that given by Alice, and that afforded by the circumstances under which all the parties lived, certain alleged admissions of deceased, and his general treatment of Alice and the children. This evidence was of such a nature that an appellate court cannot hold, however much it may doubt the correctness of the conclusion of the trial court, that the conclusion of the trial court on the question of paternity is without sufficient support in the evidence. Alice testified positively that she commenced to have sexual relations with the deceased in the year 1884, and that he was the father of both Stephen and Nellie. There was evidence given of statements and conduct on her part that was inconsistent with her testimony, but the effect of this attempted impeachment was purely a question for the trial court. Non-access by the husband being clearly shown, or at least being shown to a reasonable certainty, *541
the positive testimony of Alice as to the paternity of her children was competent evidence, and, under the law, sufficient basis for a finding by the jury on the question of paternity. It may reasonably be argued that corroboration of her evidence is to be found in the fact that these children were apparently accepted by deceased without demur or objection as a part of his household, and were treated and brought up as his own children would have been, and that he, Alice, and the children all continued to live as members of one family ordinarily live. In addition to this, two witnesses testified positively that just after the birth of Nellie, deceased declared in their presence, another person also being present, when some question was suggested as to the paternity of Nellie, that Stephen and Nellie were his children, and one of these witnesses testified that he heard deceased say many times that Stephen was his son, and Stephen testified that deceased told him that he was his son. Learned counsel for appellant is in error in his claim that a different rule may be applied by this court in cases of this character, in determining the sufficiency of evidence to sustain the findings, from that applicable in other cases. What was said by Justice Fox in the Matter of Jessup,
We do not deem it open to serious question that the evidence is sufficient to support the conclusion on the part of the trial court that deceased treated both Stephen and Nellie as if they were his legitimate children, and will not unnecessarily prolong this opinion by discussing the evidence in regard thereto. "The criterion referred to in the statute is the treatment usually accorded to legitimate children." (Estate of Heaton,
A more serious question exists as to whether the evidence sufficiently shows that deceased publicly acknowledged Stephen and Nellie as his children to sustain the findings of the trial court to that effect. The language of section 230 of the Civil Code, is simply "by publicly acknowledging it as his own." There is no provision as to what shall constitute "a public acknowledgment," and the words of the statute must be taken in their ordinary sense. (Blythe v. Ayres,
It is claimed that the evidence is insufficient to support the conclusion that he received these children "into his family." If his household in Sonoma County is to be regarded as "his family" within the meaning of section 230 of the Civil Code, it cannot be questioned, of course, that the evidence was sufficient. InEstate of Bennett,
It is claimed that the trial court committed many errors in the trial of this case.
On objection of respondents, the trial court precluded J.W. Rose, Esq., one of appellants' two attorneys, from arguing the case to the jury or the court. The reason for this action on the part of the trial court was that Mr. Rose was an important witness for appellants and testified on their behalf, and there was a rule of the court purporting to preclude counsel who gave evidence in a case from participating in the argument thereof. The evidence given by Mr. Rose related to matters of such a nature that it must have been known before the commencement of the trial that he would necessarily be a witness, and at the time he was called as a witness he was warned by the court that he would be precluded from arguing the case if he testified. The reason for the refusal was stated by the court in the presence of the jury to be that the rule precluded *546 one who was a witness from arguing a case. The suggestion that the court by this refusal cast any reflection on Mr. Rose or his evidence is unwarranted. We do not deem it necessary to discuss the question of the validity of the rule of the superior court of Sonoma County invoked by respondents. We can well see that the facts of a case might be such as to make its application such an unwarranted deprivation of a party's rights as to constitute an abuse of discretion. In this case appellants were not deprived of the right to argue this case by counsel of their own selection. The record shows that J.A. Barham, Esq., was one of the attorneys of record for appellants, participating throughout all the proceedings in this case, and practically conducting the trial on the part of the appellants. It further shows that the cause was argued to the jury by respective counsel. Counsel were fully advised by the court at the time Mr. Rose was called as a witness that he would thereby render himself ineligible to argue the case as counsel, and we are warranted in assuming that Judge Barham made his preparation for argument accordingly. Without intending to reflect in the slightest degree upon the ability of Mr. Rose in the matter of argument to a jury, we have no hesitation in saying that it would be absurd to hold that any prejudice may have accrued to appellants by reason of the refusal of the court to allow any additional argument to that of Judge Barham, especially when they were fully advised a sufficient time before argument that such would be the ruling of the court. Appellants were not deprived of any statutory right. Parties are not entitled as a matter of right to be heard by as many separate attorneys as they see fit to present. The trial court may exercise a reasonable supervision of such matters, and under ordinary circumstances if a party is allowed full opportunity to present argument by one counsel, he cannot complain of any deprivation of his rights in this behalf. Certainly no statute prescribes that he shall be entitled to present separate arguments by different counsel.
Alice Bennett was asked on cross-examination: "Since Mr. Bennett left how many men have you had sexual intercourse with, and who are they?" An objection to this question was sustained, the court holding that the question was too general as to time and should be confined to the "time or around the *547
time of gestation." A subsequent question of the same nature directed to "at or about the time immediately before the conception of Nellie" was then asked, and the witness answered that deceased was the only one. Error is alleged in sustaining the objection to the former of these questions. The authorities are practically in accord to the effect that evidence tending to show unchaste conduct of the alleged mother with other men is allowable only in so far as it has a bearing upon the question of the paternity of the child — in so far as it tends to show that another is or may be the father of the child, and hence that it must be directed to a time at or about the time the child was begotten. (See 3 Am. Eng. Ency. of Law, 2d ed., 822; 5 Cyc., p. 661; State v. Lavin,
Complaint is made that the court should have stricken out certain evidence given by witness Sanders. The evidence was given on direct examination without objection and was practically that he had come upon deceased and Alice while they were engaged in an act of sexual intercourse. On cross-examination it was developed that the witness was uncertain whether the incident occurred shortly before or shortly after the birth of Nellie, the younger child. The motion to strike out was based on the ground that the witness said it was after the birth of Nellie. Assuming this to be so we nevertheless are of the opinion that the evidence was proper as tending to show the extent of the intimacy between Alice and the alleged father of her children and to corroborate the testimony of Alice as to the nature of the relations existing between them as members *548
of the same household before and after the birth of Nellie. InPeople v. Jamison,
The trial court did not err in sustaining objections to questions asked witnesses Ralph Rose and Arthur Cochrane for the purpose of showing that witness Sanders, who had testified to declarations on the part of deceased, stated shortly before the trial that he kept a memorandum of all the things that deceased told him during his stay at the Gird Ranch. On his cross-examination by appellants, Sanders had testified that he never kept such a memorandum, and that he did not remember telling Rose and Cochrane that he had done so. This was clearly a collateral matter elicited on cross-examination. In Faulkner v.Rondoni,
It was sought by appellants to show certain declarations by Alice to a physician, Dr. Coffman, some few months before the birth of Nellie, to the effect that she was "in the family way" by one Smith, and that she desired to be rid of the child by an operation. This proposed evidence was properly excluded by the trial court. Alice was not a party to this proceeding, but only a witness on behalf of her children. Evidence of these declarations by her to the physician would have been pure hearsay, in no way binding on her children as evidence on the *549 question of paternity. Being contrary to her evidence given on that question, the declarations, waiving other objections thereto, would have been admissible by way of impeachment of Alice as a witness, but a complete answer to appellants' claim in this regard is that no foundation was laid for any such impeachment on the examination of Alice.
There was no error in refusing to give appellants' requested instruction I, commencing "I instruct you that of the women who are mothers of nameless children, there are few indeed who would hesitate at fraud, or to whom perjury would seem a crime," etc. It was not only open to the objection of being in part pure argument in favor of appellants' side of the case and an instruction on the weight to be accorded the testimony of certain witnesses, but it also in terms informed the jury that to hold that there had been an adoption under section 230, of the Civil Code, would require "liberality of construction destructive of language, of the statute itself." There was no prejudicial error in modifying appellants' requested instruction III. Appellants' requested instructions IV and V were properly refused. They were to the effect that deceased did not receive the children into his family unless he acknowledged his paternity to every relative, friend and acquaintance who visited his house after their birth. This certainly is not the law.
It was established without conflict that there were always several hired men working on the Gird Ranch. Exclusion of other evidence going simply to that extent was, therefore, not prejudicial error.
If any of the rulings sustaining objections to questions asked Sanders on his cross-examination for the purpose of showing bias on his part were erroneous, the effect of the errors was obviated by the testimony given by the witness, in which he fully covered the subject-matter of such questions.
The refusal of the trial court to allow the witness Hopper to testify as to the contents of a letter said by him to have been given to him by Alice to be given to Smith was not prejudicially erroneous. The theory of appellants was that the letter contained statements by Alice showing that Smith was the father of Nellie. But Hopper fully testified as to statements then and at other times to the same effect made by Alice to him. Additional evidence by him showing similar statements by her in a *550 lost writing could not have added to the effect of his evidence already given.
What we have said disposes of all points made in appellants' briefs that require notice, except the claim that the trial court erred in distributing all the residue of the estate to the petitioners. It must be held that there is merit in this claim. The application of petitioners was one under sections 1658 et seq. of the Code of Civil Procedure, the sections relating to "partial distribution prior to final settlement," there having been no presentation of the accounts of the administrator, a prerequisite to final distribution. By the decree all the property of deceased, both real and personal, and specifically all cash, money in bank, and every other article of personal property, is distributed to the petitioners share and share alike, and, the bond for two thousand dollars required by the court of each petitioner under section 1661 of the Code of Civil Procedure having already been given, the decree orders the administrator to forthwith deliver to the petitioners all of the property distributed. While the trial court might have been warranted in finding that all debts of the deceased except the mortgage debt had been paid, it did not so find. It did find to the contrary that "the estate . . . is but little indebted, and may be distributed as prayed for without loss to the creditors of said estate," evidently proceeding upon the theory that the creditors would be protected by the bonds ordered. It is manifest that our law does not contemplate the distribution of all the property of an estate under partial distribution proceedings or prior to the settlement of the final account of the executor or administrator. Such a distribution can be had only upon the final settlement of the accounts of the executor or administrator, or thereafter. (Code Civ. Proc., sec. 1665.) The court in probate must necessarily retain until such time what may reasonably be anticipated as necessary to pay debts and expenses of administration. "Creditors are not to be deprived of their lien upon the assets of the estate, and given a bond in lieu thereof. The court should see that sufficient assets are left, after partial distribution, to pay them, without recourse to the bond. The requirement of a bond is only additional security to provide against unforeseen liabilities, and against errors in judgment."(In re Painter,
The decree of distribution appealed from is reversed and the matter remanded, with directions to the lower court to make a decree of partial distribution to the petitioners upon the findings and decision filed July 27, 1909, distributing to said petitioners all the property of decedent except such portion thereof as it may deem advisable to retain until final settlement of the accounts of the administrator for the purpose of paying debts and expenses of administration, upon the giving of such bond by the distributees under section 1661 of the Code of Civil Procedure as the court may deem proper and subject to the payment by the distributees of the amounts due as inheritance tax under the act of March 20, 1905. (Stats. 1905, p. 341.) The order denying a new trial is affirmed.
Shaw, J., and Sloss, J., concurred.
Hearing in Bank denied. *552