O'Connor v. Schroyier

BEAUMONT, J., pro tem. Mary Ann Horgan died testate in San Francisco August 15, 1925, leaving certain property to charitable institutions and the remainder of her estate to her heirs at law. Elizabeth O’Mahoney, respondent, petitioned the court for partial distribution, alleging she was an heir, to wit, cousin of decedent. Elizabeth A. O’Connor, assignee of Thomas O’Connor, one of the heirs, opposed the petition, denying that petitioner was such heir and alleging that the said petitioner was not related whatever to decedent. The court found that there were three heirs at law, to wit, Richard O’Connor, a cousin; Thomas O’Connor, a cousin; and Elizabeth O’Mahoney, a cousin. The petition for partial distribution was granted, and from the decree Elizabeth A. O’Connor is the only appellant. She contends that the evidence is insufficient to sustain the finding that Elizabeth O’Mahoney was the cousin of decedent.

John Horgan, a native of Ireland, came to the United States prior to 1849. He was married to Bridget O’Connor, and one child was the issue of the marriage, namely, Mary Ann Horgan, decedent herein. John Horgan lived in San Francisco for many years prior to his death there in 1886. He was a blacksmith. Mary Ann Horgan was never married.

Respondent gave testimony, by deposition, of many particular facts of family history, relationship, descent, birth, marriage, and death connected with and concerning the family of herself and decedent which, she testified, she learned from her father. Among other things, she testified ¡that her father’s name was Patrick Horgan and his brother’s ¡name was John; that their father’s name was John Horgan [38]and their mother’s name was Johanna Horgan, née Flynn; that her uncle, John Horgan (father of decedent), was a blacksmith by trade. She testified that she based her statements as to those matters upon, to quote the witness, “talks I had from time to time with my father”; “information passed on to me from my father,” “family knowledge and from information given to me by my father during his lifetime.” Some of the answers, for example, given by respondent were: “The decedent never married, as my father in his lifetime always told me,” “I always heard my father say that decedent was an only child.” Respondent further testified in various parts of the deposition, both in answer to interrogatories and cross-interrogatories, that she and decedent were “first cousins”; that “her father and my father were brothers,” and that she learned this, as she stated, “from what my father used to tell me.”