In Re Estate of Keith (1917) · DecisionDepot

In Re Estate of Keith

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Apr 30, 1917 No. S. F. No. 7965.Published

Before: Sloss

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Holding. The court affirmed the denial of a petition for partial distribution, holding that the petitioner failed to prove she was the daughter and heir of the decedent. The court further determined the appeal was frivolous and imposed a penalty for the protraction of baseless litigation.

Issues

Whether the trial court erred in finding that the petitioner was not the daughter of the decedent.
Whether the appellant's claims of evidentiary error warranted reversal of the judgment.
Whether the appeal was frivolous and justified the imposition of damages.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The court found that Keith was married only once, and that there was no issue of this marriage; that Louise K. Thomson was not a child of John M. Keith, and was not entitled to inherit any part of his estate.”

“The judgment is affirmed, and it is adjudged that the respondents recover from the appellant the sum of one hundred dollars as damages for the taking of a frivolous appeal.”

Synopsis

The facts are stated in the opinion of the court.

SLOSS, J.

John M. Keith died on the twenty-seventh day of April, 1914, leaving a large estate. On May 28, 1914, a paper, dated March 3, 1913, was admitted to probate in the superior court of the city and county of San Francisco as the olographic will of said decedent, and letters testamentary were issued to J. J. Mack, named therein as executor. The order admitting the will to probate has long since become final. In June, 1915, the executor filed his first annual account, and soon thereafter various beneficiaries named in the will filed applications for partial distribution.

While matters were in this condition, Dr. Sarah J. Tedford presented a paper, dated April 20, 1914, as the last will of John M. Keith, and filed a petition for its admission to probate. The alleged will purported to give the entire estate to Louise Keith Thomson, described as Keith’s “only daughter,” and named Dr. Tedfurd “Truste to carry out the exicutive work of probating” the will.

The petition for probate was filed on September 3, 1915. The petitioner having been advised that the time for questioning the probate of the will of March 3, 1913, had long gone by, she dismissed her petition on September 15, 1915. On the last-named day, Louise K. Thomson, the appellant herein, filed a petition asking that the entire estate be distributed to her. In this petition she alleged that Keith had been married twice, that she, the petitioner, was the sole issue of the first marriage, and that there was no issue of the

second;

and that she, as sole heir, was entitled to receive the entire estate because of the omission of the decedent to make any provision for her in his will. She subsequently filed a petition for partial distribution, based upon similar allegations, and the proceedings here under review were had under this petition and the oppositions thereto.

[28]

The court found that Keith was married only once, and that there was no issue of this marriage; that Louise K. Thomson was not a child of John M. Keith, and was not entitled to inherit any part of his estate. Judgment was entered denying and dismissing her petition for partial distribution. From this judgment she appeals. The record was brought up in typewritten form under the provisions of sections 953a, 953b, and 953c of the Code of Civil Procedure.

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of the child, the death of the mother, and the second marriage all took place at Chicago, and Mrs. Tedford was present on each of these occasions. In 1886, at San Francisco, Keith obtained a divorce from his second wife. In 1887, Keith and his daughter Louise made a journey to Alaska, and both were thought to have been lost in a shipwreck. Dr. Tedford learned in 1898 that the daughter had survived the wreck, but neither she nor the appellant saw or heard anything of Keith until April 20, 1914, just one week before Keith’s death, when they met him walking on the street in San Francisco. A mutual recognition ensued. The three went into a store, where Keith wrote his will in favor of the petitioner. This document, according to Mrs. Tedford’s story, is the paper which she offered for probate many months after Keith’s death. In addition to the testimony of Dr. Tedford, that of some other witnesses was offered in support of the claim that the appellant was Keith’s daughter. One of these witnesses knew Keith as manager of a railroad eating-house at North Platte, Nebraska, during the period from 1869 to 1879, Keith then having a little girl with him. Although this witness had not seen the girl for nearly forty years, he was able, at the trial, to identify her with the petitioner. Another witness testified that he had seen the petitioner with Keith at Bakersfield in the years from 1884 to 1887. This, with some further testimony of minor corroborative value, was the evidence introduced to establish the appellant’s case. We need not stop to point out its inherent weakness. A more detailed statement would disclose abundant ground for saying that the testimony of Mrs. Tedford, which formed the main reliance of the appellant, was on its face improbable and unworthy of belief. It is not, however, necessary to go so far. The respondents introduced evidence, unimpeached and convincing, making it entirely clear, either that the appellant was not the daughter of any man named Keith, or that, if her father did bear that name, he was not the Keith whose estate is here involved.

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Synopsis

SLOSS, J.

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