Whittenberg v. Mueller

SPENCE, J. In a proceeding to determine heirship, the trial court directed a verdict against appellants and in favor [386]of respondents and judgment was entered accordingly. Appellants appeal from said judgment.

The deceased was a former lieutenant on the San Francisco police force. He died in 1937 leaving neither wife nor issue. He was originally known as Harry Peter Breig and later changed the spelling of his last name to Braig. It was conceded by all that his mother was Helena Breig, formerly Helena Boehm. Respondents claimed that they were the maternal first cousins of the deceased. Appellants claimed that the deceased was the son of John Breig and Helena Breig and that appellants were the paternal nieces and nephew of the deceased. There appears to be no conflict in the evidence with respect to certain relationships, that is to say, the relationship of respondents to Helena Breig and the relationship of appellants to John Breig. It is further undisputed that John Breig and Helena Breig were husband and wife for many years and that they were divorced in 1882. The main subject in dispute is whether the deceased was the son of John Breig.

It is difficult to determine from the evidence the exact date of the birth of the deceased. The parties seem agreed that he was born around 1870 but no record, public or private, or other evidence was produced to establish definitely the exact date. If he was born in San Francisco, as claimed by appellants, no public record of the birth was available.

In support of the claim that the deceased was the son of John Breig and Helena Breig, appellants produced numerous witnesses to give testimony concerning the history of the family and to establish the pedigree of the deceased through testimony of common reputation in the family as evidenced by the acts and declarations of the members of the family. (Code of Civil Procedure, sections 1852 and 1870, subdivisions 4 and 11.) In determining the propriety of the trial court’s order directing a verdict in favor of respondents, we must view this evidence in the light most favorable to appellants and when so viewed, the following facts appear.

John Breig was a German immigrant who established himself in San Francisco as a soda water manufacturer in the early 1860’s. His first wife was Caroline Breig by whom he had three children: Edward Breig, Amelia Breig and Theresa Breig. Edward was the father of appellant Emma S. Durr. Amelia was the mother of appellants Bertha R.