61 P. 670 | Cal. | 1900
Appeal from an order of distribution. James Williams died testate at the city and county of San Francisco, March 1, 1897, and his will was admitted to probate March 15, 1897, and letters testamentary were granted to appellant. Said will was made at San Francisco February 28, 1897, in which, after some special bequests, the testator's brothers, George Williams and William Frederick Williams, were made residuary legatees.
The final account of the executor having been filed and settled, Clifford Oswin Williams and Frederick Percy Williams, a minor, by his guardian Arvilla S. Williams, filed their petition for final distribution on January 31, 1898, alleging that George Williams, one of said residuary legatees, died before said testator, unmarried, and without any lineal descendants, and that the other residuary legatee, William Frederick Williams, also died before the testator, leaving surviving him his widow, said Arvilla S. Williams, and said petitioners, Clifford Oswin and Frederick Percy, but no other lineal descendants; that the testator was never married, and at the time of his death left no kin except said petitioners.
The executor answered said petition and put in issue all its material allegations.
The questions of fact to be determined were whether William Frederick Williams, the husband of Arvilla, and the father of the petitioners Clifford Oswin Williams and Frederick Percy Williams, was the brother of the testator and one of the residuary legatees named in the will, and whether George Williams, the other residuary legatee, was dead.
The will recited that the testator, James Williams, was born in Norwich, Chenango county, New York, that his father's *554 name was James Williams and that his mother's name was Harriet Luddington.
Arvilla S. Williams testified that she was married to William Frederick Williams at New Haven in 1875, and produced the certificate thereof, in which her husband was named "William F. Williams," and also produced the record of the baptism of her sons in which the father's name was stated as William F. Williams. She further testified that she learned from her husband that he was born in Norwich, Chenango county, New York, that his father's name was James Williams, that his mother's name was Harriet Luddington, and that he had four brothers and twin sisters.
At this point the attorney for the executor "objected to any testimony by witness as to what William F. Williams said to Arvilla S. Williams or her sons as hearsay and incompetent testimony to prove heirship." The objection was overruled, and an exception taken.
Appellant, in his brief, contends that before the declarations of a deceased person can be admitted, in case of pedigree, the relation of the declarant to the family must be established by other testimony. (Citing Blackburn v. Crawfords, 3 Wall. 187;Thompson v. Woolf,
That such is the rule at common law is not doubted; nor is it necessary to consider whether sections 1852 and 1870 of the Code of Civil Procedure, or either of them, have changed the common law in that regard, since there was sufficient evidence to connect William Frederick Williams with the family to which the testator belonged, to justify the admission of his declarations made long before the execution of the will.
The will itself was sufficient evidence that James Williams, the testator, was born in Norwich, Chenango county, New York, that his father's name was James Williams, and his mother's name Harriet Luddington, and that he had at least two brothers, named respectively William Frederick Williams and George Williams, who were made his residuary legatees. There was record evidence of the marriage of the witness Arvilla to William F. Williams, and it was entirely competent for her to testify that her husband so wrote his name, but that his full name was William Frederick Williams. The identity of the name of the petitioners' father *555
with that named in the will was prima facie proof that he was the William Frederick Williams named in it. Identity of person is presumed from identity of name. (Code Civ. Proc., sec. 1963, subd. 25; Douglas v. Dakin,
The presumption arising from identity of name is, of course, rebuttable, but it is sufficient to shift the burden of proof to the other side. The question was one of fact, and there was certainly sufficient evidence to justify the court in finding that the petitioners were the nephews of the testator, and entitled to the whole of the residuary estate, if George Williams died before the testator leaving no issue. Upon this point the declarations of William Frederick Williams, deceased, as to the family understanding and belief, to the effect that he enlisted in the army, when a boy, on the Federal side of the Civil War, and was believed to have been killed, and that he never married, was competent evidence and sufficient to sustain the finding of the court. (Doe v. Griffin, 15 East, 293.) I quite agree with the learned counsel for appellant that evidence consisting of the alleged declarations of deceased persons is so easily fabricated that it is open to suspicion; but this objection goes to the weight that should be given it, not to its competency. That there was some testimony tending to contradict the testimony of the witnesses for the petitioner is conceded. Much of it, however, was incompetent, though not objected to; but it was for the trial court to determine the weight to be given to each and every particular statement, and I am satisfied with the correctness of its conclusions. The executor himself testified that he had exerted himself every way to ascertain who the relatives of the deceased were, and said: "I feel satisfied these two boys are the nephews of James Williams, but I should like to have it proven. I believe, from my investigations, George Williams to be dead and left no family." I advise that the order appealed from be affirmed.
Gray, C., and Cooper, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is affirmed.
Van Dyke, J., Garoutte, J., Harrison, J. *556