Montgomery v. Elmer

NOURSE, P. J.

Helen McMurray Elmer petitioned for distribution under section 1658 of the Code of Civil Procedure as the daughter and sole heir of decedent. Persons claiming to be a sister, a nephew and nieces petitioned for partial distribution. No evidence on their petitions appears in the record and no written objections to the daughter’s petition were filed, but a full hearing was had upon the latter petition and the trial court found that petitioner was the daughter of William T. McMurray, and Lucille Mary McMurray, both of whom were dead, and that she was the sole heir and entitled to all the estate. The probate court also found that none of the other petitioners were entitled to any portion of the estate and then decreed that all the estate should be distributed to Helen McMurray Elmer. From this decree the other petitioners appeal upon typewritten transcripts.

In the final analysis the case is governed by questions of fact only. Helen McMurray Elmer was born July 21, 1904. Her parents were William T. McMurray and Lucille Mary McMurray, both deceased. In the year 1901 the parents met Henry and Marie Durnez in the city of Chicago

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and represented themselves as husband and wife. The four traveled on the same train from Chicago to Denver, Colorado. There they separated, the Durnez family going to Leadville and later to Bucktown, Colorado, the McMurrays going to Cripple Creek. Mrs. Durnez and Mrs. McMurray frequently corresponded and about two years later the McMurrays visited at the Durnez home. During all this time they deported themselves as husband and wife and introduced themselves as such. In January, 1905, Mr. McMurray appeared at the Durnez home with a six-months’ old child which he said was the daughter of himself and Lucille, which he asked Mrs. Durnez to take care of. He told Mrs. Durnez that his wife Lucille “was gone”, giving her the impression that she was dead. He told her that the baby was named Helen and that she was born on July 21, 1904. He agreed to pay $25 a month for her care and then paid Mrs. Durnez $300 for the first year. Of'er payments were made from time to time, until July, 1907, when the Durnez family moved to Goldfield, Nevada, where McMurray was located. For a period of ten years father and daughter associated constantly in Goldfield, she staying in his home two or three days of each week. In 1917 McMurray took his daughter from Goldfield to Fallon, Nevada, thence to Reno, and thence to San Francisco, where she lived with him for three months. Later he took her back to the Durnez home, which was then in Clemenceau, Arizona. He continued to pay for her maintenance until her marriage to Cecil Elmer in April, 1923. In February, 1928, Helen Elmer, with her husband and two children, visited McMurray in San Francisco. He then told her that if she would pick out a home he would pay for it. She selected a home in San Diego upon which McMurray made the first payment and paid all installments up to the time of his death.