In re Estate of Walker

This proceeding grows out of the following facts: On July 3, 1913, upon the ground of desertion, Cornelius Walker obtained an interlocutory decree of divorce from his wife, Mabel E. Walker. He died on November 20, 1913, leaving an estate of which Mabel A. Nason, a daughter by a former wife, was appointed administratrix. On April 11, 1914, Mabel E. Walker gave birth to twin sons, Earl and Edwin, whose legitimacy as lawful heirs of deceased constitutes the subject of this controversy.

On March 29, 1915, Mabel A. Nason, as “petitioner and administratrix,” filed her first and final account, accompanied by a petition wherein she alleged that she was the sole heir of deceased, to whom she asked that the estate be distributed. In due time Mabel E. Walker, as guardian of her said minor sons, filed a counter-petition alleging that they were children of deceased and who, with Mabel A. Nason, constituted the only heirs to whom the estate should be distributed. Mabel A. Nason, as administratrix, answered this counter-petition, denying all the material allegations thereof other than that she was an heir of deceased. Thereafter, on May 27, 1915, Mabel A. Nason, as administratrix, served notice that she would demand a jury to try the issues, as provided by section 1717 of the Code of Civil Procedure, and that on June 1, 1915, the administratrix would move the court to settle the issues to be tried. When the case was called for trial on December 9, 1915, Mabel E. Walker waived a jury trial and for the first time made an objection to the participation of anyone in the proceeding other than herself, ‘' on the ground that said minors by their guardian are the only persons interested in this proceeding,” which objection was overruled and a trial was had before a jury, which rendered a verdict finding that said minors were not the children of

The first contention made by appellant is that Mabel A. Nason, in her capacity as administratrix, had no interest in the proceedings, and therefore no authority to participate in the trial or demand the impaneling of a jury to try the issues. In support thereof several authorities are cited to the effect that an administrator of an estate has no interest in a controversy to determine rights of inheritance, he being a mere officer of the court holding the estate as a stakeholder, to be delivered in accordance with the order of distribution made by the court. Undoubtedly this is true. (Roach v. Coffey, 73 Cal. 281 , [ 14 Pac. 840 ] ; Estate of Healy, 137 Cal. 474 , [ 70 Pac. 455 ] ; Estate of Murphy, 145 Cal. 464 , [ 78 Pac. 960 ].) Nevertheless the rule is not applicable to the facts disclosed by the record in this case. It clearly appears therefrom that Mabel A. Nason, in filing her petition, appeared before the court not only as administratrix, but in her individual capacity, alleging that she was the sole heir of deceased. Her petition, as an individual, for distribution of the estate to her as the sole and only heir of deceased was filed prior to the appearance in the proceedings of Mabel E. Walker as guardian of the minors. Her position as an heir was clearly set forth therein, which fact as pleaded was by counter-petition recognized and admitted by the guardian of the minors and reiterated in the answer filed by the administratrix. It further appears that Mabel A. Nason personally paid the costs of the proceedings charged to her in defense against the claims of the said minors and bore the expense of hiring counsel therein. Up to the time of calling the case for trial, her right as an heir to wage the contest was recognized not only by the guardian, but as well by the court. Appellant made no objection whatsoever to the fact that she appeared as administratrix or in a dual capacity, until after issue of heirship was joined and the impaneling of a jury called to try the same on December 9, 1915, at which time her counsel, in language, if not misleading, at least not calculated to acquaint the court or opposing counsel with the

A number of errors are predicated upon rulings of the court in admitting evidence the prejudicial effect of which, it is claimed, was greatly accentuated by instructions given to the jury. At the time of the death of deceased, Mabel E. Walker, mother of the minors, was, and for a number of years prior thereto had been, his wife,■ though they had not lived together as man and wife for a period of some four years. Excepting for a short time when the husband lived at Santa Monica, they, having separate abodes, resided in the city of Los Angeles, where during all the time the husband was engaged in business. On November 8, 1911, a property settlement was had between them, and on January 10, .19Í2, the wife brought suit for divorce on the ground of the hus

Section 194 of the Civil Code provides that “all children of a woman who has been married, born within ten months after the dissolution of the marriage, are presumed to be legitimate children of that marriage. ’ ’ The marriage relation existing between the husband and wife was not dissolved by the interlocutory decree of divorce, but by the death of the husband on November 20, 1913. (Estate of Dargie, 162 Cal. 51 , [ 121 Pac. 320 ]; Brown v. Brown, 170 Cal. 1 , [ 147 Pac. 1168 ] ; Olson v. Superior Court, 175 Cal. 250 , [ 165 Pac. 706 ].) Hence the children, having been born within ten months succeeding his death, are, under the provisions of said section 194, presumed to be his sons. This presumption, however, as stated in Han-grave v. Hargrave, 9 Beav. 552, may be rebutted and overcome “by proper and sufficient evidence showing that the husband was (1) incompetent; (2) entirely absent, so as to have no intercourse or communication of any kind with the mother; (3)'entirely absent at the period during which the child must, in the course of nature, have been •begotten; or (4) only present under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse.” (Estate of Mills, 137 Cal. 304 , [ 92 Am. St. Rep. 175 , 70 Pac. 91 ].) The court instructed the jury that the evidence adduced was insufficient to justify a finding that Cornelius Walker was impotent, or that he was entirely absent, so as to have no intercourse or communication with the mother, or that he was entirely absent at the period during which the children must, in the course of nature, have been begotten; and told the jury that the sole question for it to pass upon in determining the issue was whether the presence of Cornelius Walker upon the occasion of conceded visits made upon and meetings with his wife were under circumstances which clearly established the fact that no sexual intercourse was had between them. Hence the jury must be deemed to have considered the evidence adduced only in so far as it bore upon the question thus submitted for its determination. Therefore, in reviewing the alleged errors, we are

Not only is the record barren of any evidence tending to show that Cornelius Walker did not, during the period while living separate and apart from his wife, have physical access in the sense of opportunity for intercourse with her, but it, without contradiction, shows that he did at numerous times call upon her at her residence (ostensibly on business), on which occasions (and particularly at about the time when these children were begotten) the wife, without objection, testified they indulged in the procreative act. That he was not impotent, and during the period covering the time when the children were begotten he had access to his wife, by which is meant opportunity for intercourse (Cope v. Cope, 1 Moore & R. 275; Bury v. Philpot, 2 Mylne & K. 349), cannot upon this record be questioned. In the Banbury Peerage Case, 1 Sim. & S. 159, it was said “that after proof given of access (opportunity) of the husband and wife, by which, according to the laws of nature, he might be the father of a child, no evidence can be received except to deny that such intercourse had taken place.” In Van Aernam v. Van Aernam, 1 Barb. Ch. (N. Y.) 375 , it is said that the mere fact that the wife is living as the mistress of another, the husband not making any

Now, bearing in mind the existence of the marriage, the fact that the husband was competent and that he concededly had access in the sense of opportunity for sexual intercourse with the wife, .we come to a consideration of the evidence received and which the jury concluded sufficient to overcome the presumption declared in section 194 of the Civil Code, to the effect that such children are presumed to be legitimate children of the marriage.

Over appellant’s strenuous objection, much evidence was introduced with reference to the birth, paternity, and death of a child born to Mabel E. Walker in February, 1913, the illegitimacy of which and Walker’s knowledge thereof the evidence tended to prove and concerning which the court, among other things contained in a lengthy oral charge covering some twenty-one pages of printed matter, instructed the jury that the legitimacy or illegitimacy of such child was not involved in the controversy, except as such fact might incidentally throw light upon the relations of the husband and wife, the probability of love and affection between them, and the probability of acts of sexual intercourse occurring between them subsequent to that time; that such evidence bore upon the question of the innocence of the mother of the minors which, since it was a civil case, might be overcome by a preponderance of the evidence; and that such “evidence with regard to the legitimacy of the child born February 1, 1913, . . . was admitted for the purpose of overcoming, so far as it might justly have that weight in your mind, the presumption of the innocence of the mother.” It thus appears that this liné of testimony was received upon two theories: First, that if the illegitimacy of the child born February 1st was established, it was a circumstance tending to controvert the presumption arising from conceded access and prove there was no act of sexual intercourse had between husband and wife, as testified to by her, on occasions when he subsequently met and visited her, and particularly at about the

Although the status of the children, since not parties to the action for divorce, was unaffected by the interlocutory decree (Kleinert v. Ehlers, 38 Pa. St. 349 ; Shuman v. Shuman, 83

While in our opinion the interlocutory decree was admissible in evidence, the court erred in its instruction to the jury that “the law, then, is that the presumption of intercourse between husband and wife after the date of a divorce by an interlocutory decree, is not nearly so strong as the presumption that such intercourse occurred before the entry of such decree.” The jury were further told, with reference to the effect, as evidence, of the decree and judgment-roll in the divorce action, that while such decree does not destroy the presumption declared in sections 193 and' 194 of the Civil Code, “you are entitled, however, in weighing the evidence in this case, to consider the fact that where a divorce is obtained on the ground of desertion, that that fact decreases somewhat, and you are to judge to what extent, the weight of the presumption of legitimacy. ’ ’ The effect of thus instruct

The objection that the court erred in permitting evidence of the conduct of Walker and his wife toward each other, and of declarations connected with such conduct goes more' to the weight thereof than to its competency. While it might, where access of the husband and wife is shown, be entitled to very little weight in determining the question, nevertheless, under the authority of Baker v. Baker, 13 Cal. 87 , and Wright v. Hicks, 12 Ga. 155 , [ 56 Am. Dec. 451 ], we cannot say that such evidence was erroneously admitted.

Aside from the erroneous instructions referred to, the lengthy oral charge contains much matter that could serve no -purpose other than to confuse in the minds of the jurors the real issue submitted to them, which, as stated, was whether the husband on conceded visits to and meetings with his wife

Sloss, J., and Shaw, J., concurred.

Hearing in Bank denied.