The San Francisco call., 1896-04-11
BLYTHE HEIRS
RENEW THE SUIT,
Will Combat Distribution of
Millions to Mrs.
Hinckley.
APPEAL TO BE TAKEN.
Case Perhaps Only in It's Infancy
After Years Of Litiga.
tion.
JUDGE C0FFEY AN OBSTACLE.
To.Day's Action but Stepping Stone
to the State and National
Supreme Courts.
JUDGE C0FFEY AN OBSTACLE

The remarkable Blythe inheritance case
will pass another milestone this afternoon
in its long journey through the courts.
A bill of exceptions to Judge Coffey's
ruling will be settled at 2 o'clock by the
Judge himself, who will either grant it and
thereby allow the numerous Blythe heirs
to take an appeal to the Supreme Court at
once. or will refuse it and thus force the
applicants to secure writ of mandamus
from the Supreme Court compelling him
to show cause why he should not grant the
bill.
This bill of exceptions to Judge Coffey's
decision,' said Attorney George w. Towle
Jr., speaking yesterday for the opponents
of Mrs. Florence Blythe Hinckley, sis
merely stepping-stone to an appeal that
we shall take to the Supreme Court of the
State, and if unsuccessful there we shall
appeal to the Supreme Court of the United
States.
"As far as the length of time of the liti ga
tion over the Blythe estate, the case may
possibly be said to be still in its infancy.
"The Judgment rendered that Florence
Hinckley was heir to Blythe was void for
want of jurisdiction.
THAT judgment rests on section 1887 of
the Civil Code, which provides that every
ilfegitimate child is an heir if the father of
such child acknowledges it in the presence
of competent witness.
''The judgment rests on that section
which was re-enactment of section of
the act of April 10, 1850. That section 2
had been passed upon twice by the
Supreme Court prior to the time of re-en-
oofp hol hall iy,t . &c
Pima VS.. Peck, reported in 81 California,
that writing produced by the child to be
sufficient under that section must show
upon Its face that it was executed for the
purpose of making the child an heir;
must refer to the child as illegitimate, and
must bear the signature of the witness to
its execution.
"The writings in the Blythe case do not
meet the requirements of the court in that
case in any single particular. They are
simply letters constituting mass of social
correspondence.
Justice Garoutte in his decision on the
Blythe case, quoted in So California, said:
Pima VS.. Peck is not authority in this
case for two sufficient reasons: Four
Justices participated in the decision [Jus-
tice Sanderson not taking part], and two
of these Justices conferred alone in the
judgment
'The opinion in Pima vs. Peck, as pub
lished in 81 California, begins, by the
court, Rhodes j.. Justice Rhodes being
the writer Of the opinion, with which Jus
tees Shafter and Sawyer concurred spe-
oially, following which are the words, L
concur in the Judgment to which no sig
nature appears.
"After Justice Garoutte's opinion was
published discrediting the opinion in Pima
VS.. Peck, the Blythe Company instituted
proceedings to perpetuate the testimony
of Justices Rhodes and Currey, the only
members CT the court at the time the
opinion in Pima VS.. Peck was rendered
that are now living. Both remember the
case distinctly; both are emphatic in their
statement that it was the opinion of the
court. And Justice Rhodes deposes that
he is as certain that Justice Sanderson did
participate in the decision in that case and
did concur freely in the opinion written by
himself, as published, as he is that he him.
self wrote it.
81 said to him, Judge IS your belief in
that fact such. that it amounts to an abid.
ing conviction, to moral certainty, of the
truth of that statement, to such all extent
that if a human life depended upon your
SO saying you would still 80 DECLARE? He
replied that it did.
"In the hearing OF our appeal before the
Supreme Court in February last the depo-
sitions of Justices Currey and Rhodes
the opinion in Pima VS.. Peck. The depo.
sitions were objected to by counsel for
Mrs. Hinckley, and the court declined to
receive the depositions in evidence.
"In connection with the offer of the
dispositions counsel stated to the court the
substance of the depositions. In Pima
VS.. Peck the decision is material because
in an unbroken line of decisions in courts
of all States including California the law
is that where a statute such as the act OF
1850 has been construed by the highest
court of the State and subsequently re-
enacted without substantial change in
phraseology, that such re-enactment is a
legislative adoption of the construction
that has been placed upon it by the court.
referring to this, Justice Garoutte saws
in his opinion: There can be no question
that if the rules of statutory construction
are the same now as when Pima VS.. Peck,
81 California 359, was decided and the
views then expressed had been adopted by
majority of the court this principle of
the construction of statutes would have
controlling effect in this case, but it is
equally true that rules of construction have
been changed. Such principle in the very
nature of things could not maintain
''The rule of construction that he refers
to as having been changed is that estab-
lished by section of Civil Code, which
reads that the common-law rule of statutes
and derogations thereof should be strictly
construed, has no application in the code.
but that its provisions should be liberally
construed to effect its objects and promote
justice.
''Our purpose in this bill OF exceptions is
to appeal from the judgment of final dis
tribution OF the Blythe estate, permitting
Mrs. Hinckley to enter into possession as
legal heir"