Los Angeles herald., 1892-10-30

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mutual assumption of marital rightt
duties or obligations, as required b.
section 65, civil code, supra"
He then passes to consideration @
this branch of the case. The counse
for contestants having urged that in tn
way OF performance Of the duties or oh
legations growing out of the contract
was not necessary that the marital rela
tions should be openly or publicly as
sumed, the court says:
I'm this | am not willing to agree
From reading of the prevailing opinion
of Mr.. Justice Works in the last appea
(Sharon) case, think it clear that tht
contention of respondents counsel tha
the construction there placed was thai
to show mutual assumption of MARTA
rights, duties or obligations, cohabit
ing together in the manner usual with
married people is necessary, is sus
| tained."
After quoting further from the opin
ion of Justice Works upon this point, the
court states that the rule is conclusive
against the claim of Delfna Varelas
The evidence was conclusive that the
agreement of December, 1885, was not
followed by true and open matrimonial
cohabitation between the parties. II
showed that the deceased, after the death
of his wife in June of that year, pro-
cured his daughter, Mrs. Cahen, and her
| family to live at mis- home on Main
street; yet that he still contiued as the
head OF that household, claimed it as
his domicile, represented that ward in
the city council, was in the habit of
going there to sleep, was taken there
when sick, and when departing from or
returning to the city departed from and
returned to that home, and continued
there to his death.
The contestant in the meanwhile con-
tinued to live on Saneevain street, the
plaza or Buena Vista street in houses
furnished by Cohn. That he visited
them frequently the court does not
doubt, but that there was true matri-
moniaI cohabitation in the sense that
where one lives and dwells there does
the other live and dwell also, was not
established by the evidence.
There was nothing in the conduct of
the parties toward each other and the
public after December, 1885, sufficient
in itself to show that there had been a
change in their relations, and while the
court is of the opinion that upon the
issue of consent the weight of evidence
preponderates upon the side of the
affirmative, he is clearly of opinion that
this consent was not followed by a
mutual assumption of marital rights,
duties or obligations within the mean
ing of the statute. and that the decree
must be that there was no marriage,
that the relations of husband and wife
did not exist, and that Delfina Varelas
is not the widow of deceased or entitled
to any share in his estate as such.
Upon the issues raised by the minor
contestants, the opinion states that the
adverse finding upon the issue of mar
riage disposes OF the first position, and
upon the second position rules: 1.-The
findings will be, as above intimated,
that the minor contestants are the ille-
climate children of decedent, and that
decedent did sign writing, in the
presence of competent witness, admit
ting three of them, viz: Bernard,
Miguel and Marcos (Rosalia having
died and Eduardo having been born
subsequent thereto) to be such. Sec
tion 1885 OF the civil code reads: Every
illegitimate child is an heir of the per-
son who, in writing signed in the pres
ence of q competent witness, acknowl-
edges himself to be the father of such
child, and is in all cases the heir of his
mother, and inherits his estate in whole
or in part, as the case may be, in the
same manner as ii he had been born in
lawful wedlock; etc."
The court then says, after citing cases,
that the writing in question did not
state in terms that the children named
therein were illegitimate, nor, possibly,
was the sole or main purpose of it's ex-
ecution the legitimizing of the children;
but it did acknowledge the decedent to
be the father of the children, and was
signed in the presence of q competent
witness, and under the liberal construc-
tion to be applied to section 1887, civil
code, it was sufficient.
The remaining point discussed by the
court is in relation to the question
whether or not Cohn adopted the minor
contestants under the provisions of Sec
tion 230 of the civil code which reads:
"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 bis
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 it's BIRTH" That they were
his children is not seriously disputed,
but that he publicly acknowledged them
to be his is not 80 well established, and
the court holds that he did not treat
them as his legitimate children, other
wise he would not have permitted them
to live in the neighborhood he did and
would have attended the funeral of his
daughter Rosalia, and not contented
himself with paying the undertaker's
bill and draping her bed. In conclusion
the opinion says:
s'To summarize. am of opinion that
the weight of evidence establishes that
decedent and principal contestant did
consent to be husband and wife, but
that this consent was not followed by
mutual assumption of marital rights,
duties or obligations; that decedent did,
by writing signed in the presence of
witness, acknowledge three of the minor
contestants to be his children: that all
of the minor contestants are the chill
dren OF the decedent, but that they
were not received as such into his fam
lily or otherwise treated as legitimate
children. Let findings and decree in
this proceeding, and in case 14,231, be
prepared accordingly
CLERK WARD GAINED.