Gavin v. Protestant Episcopal Bishop

This is an appeal by petitioner, Constance May Gavin, from a decree of the probate court denying her application for partial distribution. The sole question presented to this court is whether the case should have been submitted to the jury, the court having directed a verdict against petitioner and in favor of respondents. In our opinion, the court erred in so doing, and the judgment must be reversed.

The decedent, James L. Flood, died testate, leaving a surviving widow, Maud Lee Flood, and two children, Mary Emma Stebbins and James Flood. The estate, appraised at $8,565,507.85, was by the terms of his will distributed among said widow and children, Cora Jane Flood, a sister of the decedent, since deceased, and various charitable institutions,

Probate Code, section 255, is not involved in this proceeding, petitioner’s claim being based upon legitimation under section 230 of the Civil Code, which reads as follows: “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 ...” To establish her claim of legitimation under this section as construed by a number of decisions of this court, petitioner must sustain the burden of proof of the following elements: (1) Illegitimacy: that she is an illegitimate child; (2) paternity: that James L. Flood was her father; (3) public acknowledgment: that he publicly acknowledged her as his own child during her minority; (4) reception into the family with wife’s consent: that she was received into his family with his wife’s consent, given with knowledge of the illegitimacy; (5) treatment as legitimate: that he otherwise treated petitioner as if she were his legitimate child. (See, generally, Estate of Baird, 193 Cal. 225 [ 223 Pac. 974 ]; Estate of Gird, 157 Cal. 534 [ 108 Pac. 499 , 137 Am. St. Rep. 131 ]; Estate of Jones, 166 Cal. 108 [ 135 Pac. 288 ].) It is admitted by the pleadings that petitioner is an illegitimate child, the daughter of Eudora Helen Forde Willette, born out of wedlock May 11, 1893, at San Francisco. The evidence is also undisputed that petitioner was received into the family of James L. Flood with the consent of his wife, and lived there for some time during her youth, where she was treated as if she were his legitimate child. The controversy, therefore, cen

Before proceeding to discuss the evidence, it is necessary to set forth the rule governing the power of the trial court to direct a verdict. This matter has been before the courts of this state on numerous occasions, and the principles were recently reviewed in Estate of Lances, 216 Cal. 397 [ 14 Pac. (2d) 768 ], wherein this court said (p. 295) :

“It has become the established law of this state that the power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. A non-suit or a directed verdict may be granted ‘only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which ma/y be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given’. (Newson v. Hawley, 205 Cal. 188 [ 270 Pac. 364 ]; Perera v. Panama Pacific Int. Exp. Co., 179 Cal. 63 [ 175 Pac. 454 ]; Estate of Sharon, 179 Cal. 447 [ 177 Pac. 283 ]; Estate of Gallo, 61 Cal. App. 163 , 175 [ 214 Pac. 496 ]; 24 Cal. Jur., pp. 912-918.) Unless it can be said as a matter of law that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury. (Umsted v. Scofield Eng. Const. Co., 203 Cal. 224 , 228 [ 263 Pac. 799 ].) A motion for a directed verdict ‘is in the nature of a demurrer to the evidence, and is governed by practically the same rules, and concedes as true the evidence on behalf of the adverse party, with all fair and reasonable inferences to be deduced therefrom . . . Even though a court might be justified in granting a new trial it wrould not be justified in directing a verdict on the same evidence . . . The power of a court in passing upon such motions is strictly limited. It has no power to weigh the evidence, but is bound to view it in the most favorable light in support of the verdict ... If, in the opinion of the

court, the evidence is unreliable, it is its duty to grant a new trial, and it may grant such a trial even where there is substantial evidence to sustain the verdict, if it believes that the evidence preponderates against the verdict.’ (Hunt v. United Bank & Trust Co. of California, 210 Cal. 108 , 117, 118 [ 291 Pac. 184 , 188].) In other words, the function of the trial court on a motion for a directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict. Although the trial court may weigh the evidence and judge of the credibility of the witnesses on a motion for a neto trial, it may not do so on a motion for a directed verdict.” (Italics ours.)

Two important propositions should be noted in the above quotation. First, the trial court, on a motion by a defendant for a directed verdict, cannot weigh all the evidence introduced by both sides; all evidence in conflict with the plaintiff’s evidence must be disregarded. Second, the trial court, in determining such motion, cannot judge the credibility of witnesses, but must give to the plaintiff’s evidence all of the value to which it would be legally entitled if the witnesses were believed. If extraordinary situations may be conceived in which these rules would yield to exceptions, the instant ease is not one of them, and it must be governed by the rules, which must now be considered as settled in this state by a long line of authorities. (See, also, Topley v. Zeeman, 216 Cal. 182 [ 13 Pac. (2d) 666 ]; Smellie v. Southern Pac. Co., 212 Cal. 540 , 552 [ 299 Pac. 529 ]; Bannister v. Los Angeles Ry. Corp., 203 Cal. 427 [ 264 Pac. 631 ]; Estate of Caspar, 172 Cal. 147 [ 155 Pac. 631 ].) Such cases as Diamond v. Weyerhaeuser, 178 Cal. 540 [ 174 Pac. 38 ], where the court found the case for the plaintiff wholly lacking in the elements to justify recovery, and therefore held it proper to direct a verdict, are not inconsistent with these rules. We proceed, then, upon the basis that petitioner was required merely to offer competent evidence of such a substantial nature that it might reasonably be inferred therefrom that she was the illegitimate daughter of James Flood, legitimated in conformity with Civil Code, section 230.

While living at one of these houses Eudora discovered that she was pregnant. She testified that she consulted a priest concerning her plight, asking whether she might not take the name of a married woman; that he permitted her to do so, telling her that she could treat the matter as a spiritual marriage; that she thereupon took the name of “Mrs. Steam”, which, she says, was familiar to her as the name of a department store in Boston. In April, 1893, Mrs. Forde and Eudora rented a room at 628 Eddy Street, and early in May moved next door to a boarding-house at 626 Eddy Street. On May 11, 1893, Eudora gave birth' to a daughter. On May 19, 1893, the child was baptized, and a baptismal record made, in which the child’s name was entered by the priest as “Constans Marguerite Stern”, and the parents’ as “Eudora Ford” and “Victor Stern”. The

In August, 1893, when the child was about three months old, she was taken into the family home of James L. Flood at 1890 Page Street. He was then thirty-six years of age, had been married to Marie Rose Flood for six years, and had no children. Upon the reception of the child into the Flood family, the financial condition- of Mrs. Forde and Eud’ora improved considerably, many of their bills being paid and large additional sums being given them from time to time. The Floods changed the child’s name from “Constance Marguerite” to “Constance May”, and she was known as “Constance May Flood”. Some time prior to May, 1894, Mrs. Flood acquired a summer home at Alma, Santa Clara County, where she lived with her husband and petitioner during the summer. In August, 1896, she secured a residence at 1816 Pacific Avenue, San Francisco. On January .15, 1898, Mrs. Flood died. Shortly thereafter, on February 23, 1898, James Flood made a trip to the Orient, taking with him his sister-in-law, Maud Lee Fritz, and brother-in-law, Walter Fritz, Constance, and a valet and maid. He returned June 7, 1898. At the conclusion of the trip, Maud and Walter Fritz remained with him at Alma, and their parents, Mr. and Mrs. John Fritz, and their brothers, John and Beaumont Fritz, came out from their home in Kansas City at Mr. Flood’s invitation. Mr. Fritz, John and Beaumont spent the summer and part of the fall there, and Mrs. Fritz, Maud and Walter stayed until January 1, 1899, when they went to Kansas City accompanied by Mr. Flood and Constance. It was arranged that Mrs. Fritz was to rear Constance in her home, and Flood thereupon left her and returned to San Francisco. He went back to Kansas City and soon afterwards, and .on February 9, 1899, was married to Maud Lee Fritz, sister of his deceased wife. They went to Europe, returned and established their home at Menlo Park, San Mateo County. A child, Mary Emma, was born to them on July 7, 1900. Constance remained in Kansas City with the Fritz family until July, 1901, attending St. Theresa’s Academy there for a time.

Some time in July, 1898, Colonel Henry I. Kowalsky, an attorney representing Mrs. Forde and Eudora, sought to

Shortly before July, 1901, Mrs. Forde wrote to Flood on behalf of herself and Eudora, asking that Constance be returned to them. After consultation with his attorney, Mr. Flood had Constance brought to San Francisco. On July 13, 1901, a meeting was held at Mr. Flood’s office, at which Flood, according to evidence presented by respondents, offered either to return the child, or to educate her during her minority. The latter arrangement was decided upon, and on July 22, 1901, Constance was taken by her nurse to “Ramona Convent” at Shorb (now Alhambra), Los Angeles County. Flood paid the sum of $7,000 into a trust fund for her expenses for a period of ten years. She remained a boarder in the convent until June, 1911, and was there known as “Constance May Stearn”. While there, she became intimate with the two daughters of Senator Robert N. Bulla, frequently spending her week-ends with them. At the conclusion of the ten-year period, she left the convent and went to live at the home of Senator Bulla. He lived in Alhambra with his two children and his sister-in-law, Mrs. Bertha Welfare. Constance made her home there for over nine years, receiving her board and lodging, and a monthly allowance from him of thirty dollars for clothing and incidentals, which was the amount given by him to each of his daughters.

Some time in 1917 petitioner became engaged to be married to John P. Gavin, her present husband, and on April 16, 1917, she wrote to Mr. Flood asking information as to her parentage. Receiving no reply, she wrote again on

James Blood died February 15, 1926. About two months later, petitioner visited in San Francisco, and consulted a firm of attorneys as to her possible right to a share in the estate. Thereafter various investigations and conferences took place, resulting in the commencement of this proceeding.

It is the theory of petitioner that James L. Flood met Eudora Forde soon after she came to San Francisco, had sexual relations with her, that petitioner was the result of the union, and that Flood and Mrs. Flood took her into their home with knowledge of these facts. Respondents advance the theory that Eudora Forde, while accompanying her mother to the Grove Street theater at this time, met James S. Cannon, the property man (who died subsequently in 1911), became intimate with him, and that he was the father of petitioner. According to this theory petitioner was taken into the Flood household as an act of charity by Mrs. Flood, who secured her husband’s consent thereto. Both theories find their origin, to some extent, in the statements of Eudora Forde Willette, who from 1926 to 1931 persistently maintained to representatives of petitioner and of respondents, to newspaper men and to others, that Flood was the father, and subsequently testified at the trial that Cannon was the father. As will hereinafter appear, the testimony of this witness is unimportant on this appeal, for at most it creates a conflict with petitioner’s case which must

We come now to the case for petitioner, the question being whether the testimony presented by her and all reasonable inferences therefrom, sufficiently establish the elements of legitimation set forth above. Her evidence falls into three classes: (1) Declarations and acts of Mr. Flood; (2) declarations and acts of Mrs. Eose Flood; (3) declarations of others, which the trial court excluded.

Numerous witnesses, including servants, friends, neighbors and casual acquaintances, testified to the conduct and statements of Flood with respect to petitioner. He was greatly attached to the child, played with her constantly, embraced and kissed her frequently and affectionately. Photographs were introduced in evidence, showing the child at the table, or seated with Flood. He provided her with beautiful clothes, toys and trinkets. She was known in the household and among friends as “Baby Flood”. She had visiting cards with the name “Constance May Flood” engraved thereon. A flower bed on the Alma estate contained the same name, and various trinkets carried her initials as “C. M. F.” Packages and telegrams were received and sent in the name of Constance May Flood. Flood called her “baby”, “my daughter”, “my little daughter”, “my little girl”, “my darling daughter”; she called him “papa”. He would take the child in his arms and say: “Who does sweetheart look like?” She would answer: “Papa.” Their coachman testified that on one occasion, when Flood was in the carriage with the child, he said to her, “Baby, what is papa going

The conduct of Mrs. Bose Flood was equally affectionate. As did the rest of the household, she called the child “baby Flood” or “Sunshine”, and was present on many occasions when Flood referred to the child as his “daughter”. One of the declarations of Mrs. Flood, which is chiefly relied upon by petitioner, appears in the testimony of Mrs. Adele Gahan, formerly Adele Cerles, nurse in charge of the child at Alma, during the ocean trip, and then at the Pacific Street home. She testified that in July or August, 1897, Mrs. Flood gave her an envelope containing money, and told her to take it to a “Miss Ford” on Mason Street; that she took the child with her to the place, inquired for the woman, and was told by an elderly lady that she was not in, but that she (the elderly ladjr) was the mother of the woman; that she gave this person the money, and that the lady then tried to coax the child to her, and after some effort said: “Isn’t it too bad she doesn’t know her grandmother?” Upon her return, the witness testified, she told Mrs. Flood of the incident, and Mrs. Flood said to her: “Adele, I am

The above evidence constituted the main case for petitioner. No attack was made upon the admissibility of this evidence, and the competency of such acts or declarations concerning family history (pedigree) is clearly established by statute and case law in this state. Section 1870, subdivision 4, of the Code of Civil Procedure makes admissible “the act or declaration, verbal or written, of a deceased person in respect to the relationship, birth, marriage, or death of any person related by blood or marriage to such deceased person ...” Section 1852 of the same code provides: “The declaration, act, or omission of a member of a family who is a decedent, or out of the jurisdiction, is also admissible as evidence of common reputation, in cases where, on questions of pedigree, such reputation is admissible. ’ ’ Section 1870, subdivision 11, provides that “common reputation existing previous to the controversy” is admissible in cases of pedigree. Under these sections, the acts and declarations of both Mr. Flood and Mrs. Bose Flood are competent to prove the paternity of petitioner. In Estate of Heaton, 135 Cal. 385 [ 67 Pac. 321 ], a situation similar to that involved herein was presented, and the court said: “One of the facts absolutely necessary to support the claim of legitimation is that Warren D. Heaton was the father of Jennie. Jennie came to the family of Mrs. Buth May when but an infant. A few years later Heaton and Mrs. May were married. Thereafter Jennie became a member of the family of Warren D. Heaton and his wife. Being a member of their family, the declarations of either were competent and relevant evidence upon the question of Jennie’s paternity.” (Italics ours.) (See, also, Estate of Hartman, 157 Cal. 206 [ 107 Pac. 105 , 21 Ann. Cas. 1302, 36 L. R. A. (N. S.) 530 ]; In re Clark, 13 Cal. App. 786 [ 110 Pac. 828 ]; Estate of McNamara,, 181 Cal. 82 , 100 [ 183 Pac. 552 , 7 A. L. R. 313 ]; 3 Wigmore, Evidence, sec. 1489, p. 226.)

The admissibility of this type of evidence being demonstrated and conceded, respondents’ position is simply that the acts and declarations admitted in this case are not sufficient to establish the elements of legitimation, and partieu

Looking at respondents’ argument from another point of view, it would wholly prevent the proof of legitimation under Civil Code, section 230', by declarations and acts of a father who was married, for if he referred to the person merely as his child, this would not afford proof of illegitimacy, and if he referred to the person as his illegitimate child, this would constitute a failure to treat the child as

The second disputed issue relates to the element of knowledge by Mrs. Flood that petitioner was the illegitimate child of her husband. The evidence upon which petitioner relies is of two kinds. First are the declarations of James Flood, made in the presence of his wife, which, respondents concede, amount to the joint declaration of both spouses, that is, the express declaration of the declarant and the implied declaration of the other spouse who acquiesced therein. (See Code Civ. Proc., sec. 1870, subd. 3; In re Clark, 13 Cal. App. 786 [ 110 Pac. 828 ] ; Griswold v. Frame, 48 Cal. App. 178 , 183 [ 191 Pac. 962 ].) In this connection, section 1963, subdivision 27, of the Code of Civil Procedure is pertinent. It states, as a disputable presumption, that “acquiescence followed from a belief that the thing acquiesced in was conformable to the right or fact”. In re Clark, supra, deals with this precise question: “As to the third point, the acquiescence of Eliza Clark when introduced on two separate occasions as the sister of Jackson Freeman, is equivalent to an acknowledgment on her part of said relationship.” Re

The third element of legitimation which respondents claim is lacking is the public acknowledgment of the relationship by Flood. This contention is made in spite of the numerous instances in which Flood made declarations of paternity to members of his household, friends, neigh

From the foregoing brief review, we have' concluded that there was competent evidence of sufficient substantiality, in support of the elements of legitimation, to necessitate the submission of the case to the jury. We have, in the course of this review, dealt with those contentions of respondents which bear directly upon the admissi

The possibility of a new trial makes it necessary also to pass upon a ruling of the court which petitioner assigns as error, limiting cross-examination of one of respondents’ witnesses. The witness, Mrs. Bertha Welfare, sister-in-law of Senator Bulla, testified on direct examination that she knew petitioner prior to her marriage only under the name of “Constance May Stearn” and that all the expenses of maintaining petitioner after she left the convent were met by Senator Bulla and the witness. Petitioner sought to cross-examine the witness to show first, that Flood had paid for the maintenance of petitioner, and second, that the witness knew petitioner as “Constance May Flood”. She was asked, among other questions, the following: “Did you ever know Constance by any other name, or did you ever hear any other name mentioned!” “Isn’t it a fact, Mrs. Welfare, that in 1920, before Constance was married to Mr. Gavin, that Mr. Gavin, in asking you about Constance’s parentage in your home, there

The judgment is reversed.

Curtis, J., Waste, C. J., Thompson, J., Seawell, J., Shenk, J., and Preston, J., concurred.

Rehearing denied.