In re Estate of Baird

The appellant, David J. Baird, Jr., claiming to be the legitimate and only child of the decedent and his only heir, applied for partial distribution to him of the estate. His application was denied. He appeals from the judgment.

The petition avers that the applicant, who is a minor, was the illegitimate child of said decedent and one Lydia M. Valencia, to whom decedent was never married, and that the decedent, who was unmarried, adopted said child as his own lawful issue in the manner specified in section 230 of the Civil Code. Opposition to this claim was made by the mother, brothers, and sister of the decedent, who denied all the facts relating to such adoption.

The court made findings declaring (1) that the decedent was not the father of the applicant, (2) that the decedent did not publicly acknowledge the said applicant as his own child, and (3) that the decedent did not receive the applicant into his family, nor otherwise treat the applicant as if it were his legitimate child.

In due time the appellant, in writing, regularly demanded a trial by jury. This demand the court below refused. This, it is claimed, was a fatal error.

It will be observed that section 1717 does not grant the right to demand a trial by jury, but merely prescribes the procedure when such right exists and is exercised, or, in any case when a jury is. allowed on such demand, whether of right or of grace. The right to demand a trial by jury in probate proceedings was not given by the common law. (Estate of Moore, 72 Cal. 335 , 338, [ 13 Pac. 880 ].) It exists in this state only where it is given by some statute. (Estate of Dolbeer, 153 Cal. 652 , 657, [15 Ann. Cas. 207, 96 Pac. 266 ].) The right, in cases of the class here involved, if it exists, is given by section 1716 above quoted, referring to article II, chapter 2, title XI of the Code of Civil Procedure. The said article II consists of sections 1312 to 1318, inclusive, and relates to pleadings and practice in will contests. Section 1312, after certain requirements relating to the pleadings in such cases, provides for the trial as follows:

“Any issues of fact thus raised, involving: 1. The competency of the decedent to make a last will and testament;

2. The freedom of the decedent at the time of the execution of the will from duress, menace, fraud, or undue influence;

3. The due execution and attestation of the will by the decedent or subscribing witnesses; or, 4. Any other questions substantially affecting the validity of the will, must, on request of either party in writing (filed at least ten days prior to the day set for the hearing), be tried by a jury. If no jury is demanded, the court must try and determine the issues joined.”

The question of the right to a jury trial in probate proceedings, in cases other than will contests, under sections 1716

In giving its reasons for denying the right of trial by jury upon a contested account, the court, in Estate of Moore, 72 Cal. 340 , [ 13 Pac. 883 ], said: “We think courts would have little difficulty in confining the operation of these sections to those eases in which the code has expressly authorized issues of fact to be framed. Without such a provision, under the decisions, parties to a contest in the probate court would

Such proceeding is authorized, and the practice therein prescribed, by sections 1658 to 1662, inclusive, of the Code of Civil Procedure. Section 1658 provides that any person, .after four months from the issuance of letters, may present -his petition for partial distribution. Section 1659 provides for notice to all persons interested in the estate. Section 1660 provides that “any person interested in the estate, may appear at the time named and resist the application.” The other sections provide the form of the order to be made and of the bond to be given by the applicant. Respecting this proceeding, and discussing its nature, the court, in Estate of Ryer, 110 Cal. 556 , 561, [ 42 Pac. 1082 ], stated that such a proceeding “is in the nature of a collateral inquiry or episode, injected into the proceedings for the administration of the estate, in which there are pleadings, process, trial, findings, and a judgment, thus presenting all" the elements of a civil action:” "In Carter M. Waste, supra, the court had under consideration a proceeding for final distribution, and declared that section 1668 provided for issues in that proceeding, and that it was one class of cases in which'the framing , of issues

The record shows that many other errors were committed by the court below in the course of the trial. In view of the possibility of another trial we deem it advisable to notice some of them.

The physician, who attended the mother when the applicant was born, was called as a witness for the applicant, and testified that he was requested to attend at the birth by the decedent Baird, that Baird was at the house on that night, that the birth took place at 5 o’clock in the morning, and that immediately afterward, on that day, he made out and signed a certificate of birth which was afterward filed in the proper public office. This certificate was read in evidence. It stated that David Jennings Baird, the decedent, was the father of the child, and that Lydia Marguerita Valencia was its mother. By appropriate questions the applicant’s counsel sought to elicit from the witness testimony that Baird, at the time the witness made and filled out the certificate, informed him of the facts stated therein and then declared that he, Baird, was the father of the child, and that Baird read the certificate after it was prepared and signed. This testimony the court refused to allow. The ruling was clearly erroneous. No evidence as to the paternity of the child could be much more satisfactory and convincing than the statements of the reputed father declaring his paternity, made at the time of its birth, and under the circumstances stated. The court not only rejected the evidence but, in the face of many other admissions by Baird that he was the father of the child, allowed as proof of public acknowledgment of the fact by him, found that Baird was not the father, and that he did not publicly acknowledge the child as his own. The testimony sought from the physician was competent evidence

Other witnesses were prevented from testifying to acknowledgments made by Baird that he was the father of the child. The reason for the rejection in many cases was that the acknowledgment was not made in public. On this ground all statements to that effect made by.the decedent at the home of the child’s mother to the servants were excluded. We know of no rule by which such rulings can be supported.

The only argument made by the respondent in regard to these errors is that it is immaterial whether they were erroneous or not because, as they claim, the applicant should never have prevailed in any event. This argument is based upon the theory that whatever may be the fact as to the paternity of the child and public acknowledgment thereof by the decedent, the proof showed beyond controversy, and without conflict, that the decedent did not receive the child into his family as his own, and did not treat it otherwise as if it were a legitimate child. If the errors were confined solely to the admission of evidence on the other issues proposed this claim would be more plausible. But where the error is so grave as the unauthorized substitution of the court for a jury as the tribunal to hear the evidence and determine the facts, we cannot, as a general rule, say that the scheme in force in this state for the administration of justice has not miscarried. (See People v. O’Bryan, 165 Cal. 55 , 65, [ 130 Pac. 1042 ].) Doubtless there may be eases so devoid of merit, or so wanting in proof of some essential fact, that the judgment of the lower court to that effect should be upheld even in the face of such an error. Decisions affirming judgments of nonsuit are familiar examples. But here the court denied a motion for nonsuit, made in part upon the ground that the evidence did not show the two facts last mentioned. Evidence offered by the appellant in support of these facts was also improperly excluded by the rulings of the court. Upon the whole record it appears so probable that the appellant was prevented from fairly presenting his case by improper and adverse rulings that we deem it advisable to remand the cause for a new trial. Nothing we have said is to be taken as an expression of opinion on our part regarding the sufficiency

The judgment appealed from is reversed.

Sloss, J., concurred.

I concur in the judgment of reversal on the ground that the court erred in refusing the demand for a jury trial.

Hearing in Bank denied.