The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1892-03-15
A DAY OF TALKING.
The Blythe Case in the Supreme
Court OH Appeal.
Justice Harrison Disqualified in the Matter
Legal Points Urged Against the Fam
lily Allowance to Florence.

The Supreme Court sitting In bank was
occu pied yesterday at both sessions with the
| arguments In the Blythe case. Justice
Harrison did not participate, he having
been an attorney in the case. All the
| familiar faces were there that were seen
daily during the long trial about year and
a half ago when the matter was before
! Judge Coifey. Among the prominent attor-
neys in court were: Acknowledgement W.
H. H. Hart. John Ii. Boalt, I. |. Bergin. T.
J. Lyons, Z. C. GoOdfellow, E. r. Taylor,
II. e. Highton, 5. ". Holiday and Burke
Holiday.
Judge Coffey, it will be remembered,
found that Florence. the illegiiimate
| daughter had been adopted by Blythe
! according TO the code. and was entitled to
inherit his $4,000 coo estate. lie found, also,
| that the Williams claimants were the next
Of kin, as his brothers, sisters. nephews and
nieces. The WiliiamSes live in England,
and it was proved that Blythe changed his
name when he came TO California ia 1S49
| from Williams to Blythe. Judge Coffey
found that the London and Liverpool
Savages, the London BytheS. the Scotch
! gypSies and all of the other 100 claimants to
the estate. including Miss Dickson. who
claimed to be the widow. had no standing in
! court.
All these claimants say they are preparing
! appeals, but none have yet effected one ex-
| cent the Wiliamses, and hence the matter
came before the Supreme Court with the
| Nlliamses as appellants and Florence as
respondent. and the others as on-lookers.
| The appeal Is from the order granting fam
| lily allowance on the application OF James c.
Perry, since dead. as guardian Of the person
! and estate OF Florence Blythe. The all0w-
! ance decreed was $500 from the date of the
! death of Blythe on April 4, 1888. 20 October
| 81, 1899, and 5000 per month thereafter dur
| ing the progress of the settlement of the
| estate Tor her support, maintenance and
/ education.
POINTS OF LAW.
| The appeal is necessarily on points Of law
| alone. Before the argument commenced,
| Attorney Gear, on behalf of the London
| SavageS. asked leave TO file brief as an
amicus curiae, being party interested in
| the outcome, though not before the court
! on appeal. This was resisted decision
! served and both sides were granted each
| two hours In which to argue. M+ssrs. Tay-
/ lor and Burgln making the principal argu-
| ments.
Several points are raised by the appel
lants. They claim that the lower court
| abused its discretion in forcing the petition
| Tor an allowance TO a hearing on the same
| day on which the petition was served on the
| appellants, without any service thereof on
codefe ndants aud in refusing to allow ap-
| pellants any time in which to prepare evil
| dence IN defense against the petition.
| Under this head another claim of abuse
is made in that the court refused 10 continue
! the application a sufficient time TO allow an
| appeal 10 be taken from the decree estab-
| fishing her heirship.
The argument was advanced that this
/ whole question of the allowance should
| have been left in allegiance until the final
| determination of tie beirship, for it would
| be clearly unjust and improper to pay cut
| the funds OF the estates of the deceased u
| one who has no pecnniaTy responsibility for
their return, if it should be decided upon
] hat Hn hos arfrrf Is hair 81
! Blythe TO any portion OF these funds.
! 1t would seem, further, that the appeal
! from the Judgment having been perfected
| within the sixty days, so as to stay all
! further proceedings under the judgment
| appealed from aud TO suspend its effect as
determination OF rights il should have the
| effect 10 stay the operation Of any allow
! ance made in pursuance OF the Judgment
| pending an appeal therefrom. 1t was, in
tact, urged that the appeal from the judg-
| ment should be considered and determ ined
| In connection with the appeal.
LAW FROM TIE FACTS
Another point raised is that from a proper
| conclusion of LAW from the facts, il must be
! held on appeal that Florence is not an heir
| Of the decedent, never ing been adopted
! as required by section 1887 OF the Civil
4 Code.
The case is not one for family allowance
| in view OF the established fact that she was
| in England from the date of her birth to the
death Of Blythe, and never behed his face
in his lifetime, aud therefore ia no proper
sense member of his family, who could be
| entitled to a family allowance. Whatever
| Blythe may have voluntarily done toward
her maintenance in England, she could
never have compelled support from lin in
! bis lifetime, and family allowance should
| not be made where support could not have
| been compelled against him in his lifetime.
Probably the principal point relied on,
and one which was argued for two days be-
| fore Judge Coffey and overruled. is the one
| that the laws Of California under which
| Blythe was found TO have adopted Florence
| could not have operated 10 confer any rights
on child in England, whose guardians,
mother and other kin were English. la
| other words. the laws of parent and child
| have no eX-terrtorality.