The morning call., 1895-01-03

Coffey that Florence Blythe was the
daughter OF the deceased; the other, that
the evidence was insufficient to support the
finding that the appellant. Alice Edith
Blythe, was not the lawful wife Of the
deceased.
With respect to the first contention
made by the appellant Justice Mcfarland,
in sustaining the judgment of Judge
Coffey. says: 1T is sufficient to say that
tn re- is nothing in the evidence presented
in the transcript on this appeal, or In the
argument of counsel. that changes or
affects the conclusion reached on the
former appeals on the subject of the
paternity of the respondent. There was
evidence sufficient to support the hndlng
of the lower court that she is the daughter
of the deceased, and we do not care TO say
anything more on the subject than was
said in the opinions delivered in the said
cases of Blythe vs. Ayres."
Ga the second Intention his Honor re-
marks: ut is not TO be wondered at that
counsel contend strenuously for their sec
ond proposition, VIZ, that appellant was
The wife of the deceased. For if she was
not his wife, then, notwithstanding the
fact that she gave to him the best years OF
her life and appears to have contributed
more to his comfort and happiness than
any other person mentioned in the record,
she will be left without dollar of his vast
estate. If he had made will and left her
large share of his ample fortune he
would thereby have done an act as COM
mendable. at least, as any other act OF his
life which the evidence shows. But courts
cannot control the disposition of property
otherwise than the law directs. They can
not take the property from its lawful own
ers and give it to others according to their
own notions about its proper distribution.
"The trial court found that said
/, tyfh IN a n
the defendant, styling herself in her
answer herein as and by the name Of
Alice Edith Blythe, widow of said Thomas
Fl. Blythe, deceased; but that for certain
period before his death she did live with
him as mis- mistress, and in no other char
acter or capacity. And. putting the case
in the most favorab bic light Tor appellant,
the pivotal question is really one of fact,
and presents itself in this form: Was
here sufficient evidence to warrant the
court in finding that from about April
l. 1880, until the death OF the deceased on
April 4, 1883, the appellant and deceased
did not live together as husband and
wifeo'
"Of course, the court may not have be-
ieved that any contract of marriage had
ever been made between said persons. 1t
may be, also, that their living together as
husband and wife during said period
would not have constituted marriage, be-
cause it is not pretended that there was
any contract Of marriage later than two
years prior to the commencement OF said
period; aud in the meantime they had
meretrcious intercourse"
Then follows an explanative review OF
the testimony regarding an alleged con-
tract of marriage entered into between
Thomas Fl. Blythe and Alice Edith, on
May 10, 1873. in cottage at the corner OF
Geary and Dupont streets. From that
time on the couple lived together. but the
court finds that ''there was no Dretense that
for the next two years there was between
them any mutual assumption of marital
rights, duties or obligations" Blythe
lived at O'Farrell street, and during those
two years, despite the fact that she visited
Blythe from inns to time, she lived at
half dozen or more different places. The
Supreme Court remarks:
Counsel for appellant do not contend
that there was an assumption of the mar
rage relation at or near the time OF said
alleged consent and agreement to be mar
red, but they seem to suggest that during
the next two years there was sort OF
gradual, unfolding, evolutionary progress
towatd assumption. We dismiss this part
of the case by saying that there Is 10th ng
to show anything like an assumption of the
marriage relation prior to the spring OF
1880, when appellant went to live with the
deceased at OFarrell street. About
April /. 1880, the appellant commenced to
live with deceased at his said house at 6
OFarrell. ami lived there with him until
October, 1882, when they removed to q
Geary street., where they lived until the
death of the deceased, on April d, 1883"
The court proceeds to discuss the law of
marriage without solemnization. or what
constitutes a mutual assum ption of marital
rights, etc. The evidence on this particu-
lar case, many hundred pages In length.
is reflected upon. and the following sig
nifcant remarks uttered in the courts
opinion:
"At the outstart one is struck with the
wonderful dearth of lady visitors at the
residence of the deceased aud appellant,
A married woman living in tie usual way
with man who beyond any doubt or sus-
.picion is her husband, no ma tier how hum
BILE ner surroundings, mas. almost invaria.
bly,, some friends and visitors of her own