Estate of Barton

BRAY, J.,

pro tem.

There are two appeals in this case: One, by the parties denominated the Conner claimants, from an order denying their motion to vacate the judgment of the court notwithstanding the verdict; the other, by the parties denominated the McGrew claimants, from the order granting the application of the Conner claimants for a new trial.

Nettie Barton died in San Francisco December 2, 1933. Probate proceedings upon her estate were had and during the course thereof proceedings to determine heirship under the provisions of section 1080 of the Probate Code were commenced therein by Allie Mathers, May Conner Beaton, Myrtle Lowers, Frank Conner, Bertie Conner Avery and Norma Conner, claiming to be cousins of the deceased. For brevity these parties will be referred to herein as the Conner claimants. Charles L. McGrew and Erastus W. McGrew, claiming to be uncles of the deceased, filed statements in the proceedings. These parties will be referred to herein as the McGrew claimants. It was stipulated that the Conner claimants were cousins of the deceased. The issue at the

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trial was the question of whether or not the mother of the deceased, Hannah Ann Conner, sometimes called Nan Conner, and the alleged father, Milton MeGrew, were married. If the said mother and father were married, the MeGrew claimants would be the next of kin and entitled to the estate, whereas if there were no marriage the Conner claimants would be the next of kin entitled to succeed, as the MeGrew claimants could not inherit through their half-brother, Milton McGrew. (Prob. Code, sec. 256.)

The proceedings were tried by a jury which brought in a verdict in favor of. the Conner claimants. A motion by the MeGrew claimants for a directed verdict was denied but their motion for a judgment notwithstanding the verdict was granted and such a judgment entered. Motion by the Conner claimants to vacate the judgment was denied but their motion for a new trial was granted upon the grounds: One, of newly discovered evidence; two, errors in law occurring at the trial. It is conceded that the only error claimed was the granting of the motion for judgment notwithstanding the verdict. The Conner claimants appealed to this court from the order denying motion to vacate judgment, and the MeGrew claimants appealed from the order granting a new trial. Both appeals are here before the court.