Connors v. Connors

In 1910 the decedent, Mary Alice Connors, was living with her mother, two brothers and two sisters in the mother’s home at 207 Hoffman Avenue in San Francisco. She was an unmarried woman in her early thirties employed by the telephone company. On February 28, 1910, she resigned her position “on account of ill health” and disappeared from the family home. She remained absent until some time in August of 1910 when she telephoned to her sister Maud from a hotel at Fourth and Mission Streets in San Francisco to come and help her home with her luggage. She was reinstated in her position with the telephone company on September 1, 1910. During the decedent’s absence from home the incompetent Joseph Thomas Murphy was born in Los Angeles. His baptismal certificate introduced into evidence herein recites that he was the son of Francis T. Murphy and Mary A. Holland Murphy, born in St. Vincent’s Hospital, Los Angeles, California, on the 29th day of July, 1910.

In 1915 the decedent told the members of her family, then living at 207 Hoffman Avenue with her, that she would like to bring a young boy into the home as a boarder. She arranged with her sister Maud to take charge of the boy for

In 1931 or 1932 young Murphy was compelled by ill health to leave St. Joseph’s College and in 1932 he was adjudged insane and committed to Agnews State Hospital. The affidavit of insanity was sworn to by decedent. In the report of the medical examiners she was described as ‘ ‘ distant nearest relative, ’ ’ and in the judgment of insanity she and Thomas Madden were described as “relatives.”

In 1934, Murphy having in the meantime been discharged from the state hospital, he was again adjudged insane. Decedent again made the affidavit of insanity, and was described both in the certificate of medical examiners and the judgment of insanity as “cousin.”

Decedent died in 1940, having never been married, leaving a holographic will which named her brother, Thomas I. Connors, appellant herein, executor and left to him the bulk of her estate. Small amounts were left to her sister Maud, her brother Joseph and to another brother who predeceased her. Joseph Thomas Murphy was not mentioned in the will. Joseph Connors as guardian of Murphy appeared in the probate proceedings alleging that Murphy was the illegitimate son of decedent and praying that the estate be distributed to him as a pretermitted heir. From a decree finding Murphy

In addition to the facts recited above it was established on the trial that Holland was the family name of collateral relatives of decedent’s father living in the eastern part of the United States, none of whom had ever been seen by any of the witnesses, that no persons claiming to be relatives had ever visited Murphy, that decedent frequently referred to Murphy as her nephew, and that she also frequently stated that his mother was a close friend of hers who had died and his father was a railroad company employee.

Against this background of undisputed facts Maud Connors testified that on the evening that decedent brought young Murphy to their home in 1915 she said to decedent that if she was to have the care of the boy she hoped that his relatives would not be bothering her by visiting him, and that decedent after asking her to keep the disclosure secret whispered in her ear: “I am his mother.” She further testified that out of respect for her sister’s wishes she did not disclose this conversation to anyone until after her sister’s death.

Joseph Connors testified in answer to a direct question about the common reputation in the Connors family as to the maternity of Joseph Thomas Murphy:

“My deceased sister, Mary, was known as his mother in the family—as the boy’s mother.”

On cross-examination he stated that by “common reputation” he meant “common knowledge . . . taking care of the boy, clothing him, looking after his welfare and physical condition . . . paying all his bills and clothing him.”

He further testified that he had never heard his sister Mary say that she was the boy’s mother and that shortly after the boy was brought into the household he had asked his mother about the boy (the witness was about nineteen years of age at that time) and “she told me not to bother my head about it; in other words, I was told to mind my own business.” His mother never told him that Mary was the boy’s mother. However, his brother, Frank, and his sister, Christine, both deceased at the time of trial, told him that Mary was young Murphy’s mother, and his sister Agnes, also then deceased, “from the way she took care of him—she was closely associated with my sister Mary—from her actions, from the way she spoke; that is she. believed my sister Mary

This evidence of declarations and acts of deceased members of the family was admissible to prove the relationship in issue (§§ 1852 and 1870, subd. 4, Code Civ. Proc.; Estate of Flood, 217 Cal. 763 [ 21 P. (2d) 579 ]) as was the tesmony of Joseph Connors as to common reputation in the family. (§1870, subd. 11, Code Civ. Proc.) This is not disputed by appellant, but he argues that as to Maud Connors’ testimony it was of a single conversation with the testatrix and that unsupported testimony of a single declaration by a deceased person has been characterized as the weakest of all kinds of evidence. (10 Cal. Jur. 1097 and cases collected in footnote 7.) The same argument is directed against the testimony of Joseph Connors as to the declarations of his brother Prank and sister Christine and the acts and conduct of his sister Agnes. As to his testimony of common reputation in the Connors family appellant points out that on cross-examination it proved to be based on his sister Mary’s conduct and the conduct and equivocal declarations of Agnes and on isolated declarations of Prank and Christine; and that neither Mary, Maud, Thomas, Agnes, nor their mother, nor their uncle Thomas Madden, ever declared to Joseph that Thomas Murphy was Mary’s son.

We may put aside Joseph’s testimony as to common reputation, as having no more probative value than the facts on which it was based. There remains as direct evidence of maternity Maud’s testimony of the declaration made to her by her sister Mary, and Joseph’s testimony of the declarations made to him by his brother Prank and his sister Christine. Granted that this is the “weakest kind of evidence possible,” it is none-the-less both at common law and under the express provisions of our code above cited admissible and competent to prove pedigree. And in evaluating its weight the trial judge was not bound to isolate it from its background and consider it as if in a vacuum. This evidence, which uncorroborated might have been regarded as the lifeless bones of an unarticulated skeleton, was given flesh and contour by the other facts in evidence, undisputed and unimpeached. Standing alone Mary’s abrupt and unexplained absence from her home from early March to late August, 1910, during which time Joseph Thomas Murphy was born in Los Angeles; the coincidence of his mother’s first name and mid-

The suggestion that it is improbable that the testatrix in 1915 would be likely to make any explanation or confide the fact of maternity to Maud when their mother was the head of the household is met by the testimony of Joseph that “Maud wanted to go to work at that time, and so it would not be necessary for her to go to work my sister agreed to pay her to take care of the boy. ’ ’

A physician who took care of the testatrix in her last illness testified that in 1939 when he first examined her he found that she had an unbroken hymen and that from his experience it would have been impossible for that reason for her to have given birth to a child in the normal way. On cross-examination he stated that he made no written record of the presence of an unbroken hymen but had a clear recol

We conclude that the decree appealed from finds substantial support in the evidence and it is accordingly affirmed.

Nourse, P. J., and Spence, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied September 14, 1942.