Rice v. Skinner

YORK, P. J.— Mancil S. Skinner died testate leaving surviving him Rubie L. Skinner, his wife, Carole Dana Skinner, a minor daughter, and Ona Joe Skinner and Mary Jane Skinner, minor daughters by a previous marriage. The last will of decedent named as beneficiaries, his surviving wife and the two minor children by his former marriage, but the minor child Carole Dana Skinner “was not mentioned” therein, nor “provided for by any property settlement agreement, or otherwise.”

[529]In a proceeding instituted to determine heirship, the trial court on April 8, 1943, adjudged Carole Dana Skinner to be the daughter and one of the heirs at law of Mancil S. Skinner, deceased, and “entitled to share in the estate of . . . deceased under the laws of succession as a pretermitted heir. ’ ’ In orders (1) setting apart exempt personal property and (2) setting apart a homestead, the court placed certain property in the care and possession of respondent, Ruble L. Skinner, the surviving wife of the testator, for the use and benefit of herself and the said minor children, in the following proportions :

Ruble L. Skinner, three-sixths;

Carole Dana Skinner, one-sixth;

Ona Joe Skinner, one-sixth;

Mary Jane Skinner, one-sixth.

This appeal is prosecuted from such orders, i. e., determining heirship, setting apart exempt personal property and setting apart a homestead,—by Grace Josephine Rice, the divorced wife of decedent, as guardian of Ona Joe and Mary Jane Skinner, minor children of said guardian and testator, only insofar as “the question of the rights of Carole Dana Skinner as an illegitimate child and pretermitted heir” of decedent, Mancil S. Skinner, is concerned.

Appellant here contends that “there is no substantial evidence to support the order and judgment . . . decreeing that Carole Dana Skinner is the illegitimate daughter and pretermitted heir of Mancil S. Skinner”; and urges that “the material allegation and essential element of illegitimacy must be proved as well as the other required elements of the case.” Also, that the evidence adduced herein was insufficient to overcome the presumption of legitimacy.

It is provided by section 195 of the Civil Code that illegitimacy “may be proved like any other fact.” The burden of proof is the same as in other civil eases, for although the presumption of legitimacy is strong and the contrary proof must be clear and convincing, a preponderance of the evidence is sufficient; it is not necessary that the proof of illegitimacy satisfy beyond the possibility of a doubt. (13 Cal.Jur. 925, citing Estate of Walker, 180 Cal. 478, 493 [181 P.792].)