Los Angeles herald., 1891-11-28
A Decision in the Case OF
the Abila Estate.
The Points of Judge Clark's
Opinion Yesterday.
Several Interesting Law Points Dis
cussed and Elucidated.
A Law Suit which Invoked Some Ro-
mantle Features-The Rights OF
Inheritance OF Illegiti-
mate Children.

Judge Clark handed down an opinion
yesterday in the matter of the estate OF
Irenio Abila, finding against the claim
ants, Juan and Felipe Perez and Daniel
Kevane, who sought to determine title
and heirship to the estate. The pro-
ceeding was brought under section 1864,
&C. 2. The court says:
The contest arises upon the claims
OF Juan and Felipe Perez and Daniel
Keyane. 1t is admitted that decedent
had sister Ramona, who died in Octo-
Der, 1878 that she was married to one
Fernando Cadierque, but that for a
period OF about eight or ten years prior
to her death she lived in state of
adultery with one Juan Perez, and that
the claimants, Juan and Felipe Perez,
were the issue OF this intercourse.
Civil Code, section 1887, provides that
an il!egitimate child shall not represent
his father or mother by inheriting any
part of the estate of his or her kindred,
either lineal or collateral, unless be-
fore his death his parents shall
have intermarried and his father after
such marriage acknowledged him
as his child or adopts him into his
family.
To meet this rule the claimants offer
evidence tending to show divorce OBJ
tanned by Ramona from Caderique and
a marriage between her and Juan Perez,
father of the claimants.
To prove this divorce the Judgment
roll of the district court was offered,
showing that the divorce was sought
on the ground Of adultry and that the
decree was granted by default on the
22d of July, 1878.
After citing decisions conforming to
the points raised the court says that the
issue of divorce should be decided in
favor of the claimants. 1.-THE issue of
marriage is one of greater difficulty and
the evidence is conflicting. The evil
dence in support OF the marriage con-
sists of the testimony of Juan Perez,
Bedsaba Dominguez and Jose Luis
Lugo."
They all in substance testify that
during her last illness and some two or
three weeks prior to her death, the said
Ramona, who was Catholic, wished to
make confession, and to that END the
said Lugo, at the request OF Perez, came
to Los Angeles from the Cienega, where
they were than living, and obtained the
services of Father Duran that upon ar
irving at their home the priest inquired
if they were married and was told they
were not. He then asked If they wished
to marry and was told that they did,
and he then solemnized the marriage.
This issue OF marriage is to be decided
according to the preponderance of evil
dence, the burden of proof resting upon
the claimants, and this testimony, if
true. supports the burden and makes
prima facie case. There are. however,
grave doubts as to the credit which
should be given to the testimony of
these witnesses. The ignorance dis
played by the witness Perez was so re-
markable, his memory such blank,
that little if any value can be attached
to his testimony.
AS opposed to this evidence is the tes
timony of G. Reyes, A. Mason and B. L.
Bragg. G.. Reyes testi6es that she was at
the house of Perez at the time OF the al
legged cere nony, assisting in the care of
Ramona and her child had been there
for some three months, and that Father
Duran did not visit the house or SOL
emnize any marriage between the two
parties. Abel Mason testifes that he
was the husband of the witness Bedsaba
Dominguez; that at the time when she
testifies she was at the home of Perez,
she was not there, but was at their
home at the Encino, and fixes the date
by the fact that at that time they had a
sick child, and she was at home attend
ing it. b. f. Bragg testifies that at the
time of the alleged marriage Father Du-
ran was sick at San Juan Capistrano.
1t is true that the impression made
by these witnesses, from the manner in
which they testified and the character
OF their testimony, is hardly less unfavor-
able that that made by the witnesses
for the claimants. To the testimony oil
the last give no more credit than to
the testimony of the witness Perez.
His memory is as remarkable as the
the want OF memory of the former; and
when a witness, as this witness did
while upon the witness stand, unneces-
sarily iterates and reiterates that he is
there for the purpose of telling the
truth, it tends to create doubt whether
he be there for any such purpose. This
witness doth protest too much.'
The case is one where circumstantial
evidence is more satisfactory than direct
evidence. 1t is to the circumstantial
evidence that we may look with some
degree Of confidence, and which here,
think, causes the weight of evidence
upon the issue of marriage to prepon-
derate against the claimants.
1t is in evidence that the
rules of the Catholic church
forbid it's priests solemnizine
q marriage when one of the parties hal
been married by the church ant
divorced, and both parties to the first
marriage are still living. 1t is not to b
presumed that Father Duran would dis
obey this rule. No record of the mar
riage could be found. The fact that il
solemnizing marriage between Ra
mona and Perez, the first would b.
violating the rules of his church, tn
fact that there was no record Of an.
such marriage; the fact that Ramon
was buried by the church as the wife 0
Cadierque are, in view of the unsatis
factory character of the direct evidenc
sufficient to impel the belief that n
marriage between Ramona and Pere
was solemnized by Father Duran 0
other Catholic priest, and as said before
to cause the weight OF evidence upo
the issue of marriage to preponderat
against the claimants. The finding wi
be accordingly.