Abate's Estate, In re

• Decision Date: 17 December 1958
• Citation: 166 Cal.App.2d 282,333 P.2d 200
• Parties: In the Matter of the ESTATE of Robert Valentino ABATE, Deceased. Pearl P. MARLOW, Appellant, v. Daniel A. KIRSCH, as Guardian ad litem of Robert V. Abate, Jr., a Minor, Petitioner and Respondent. Civ. 23384.
• Court: California Court of Appeals Court of Appeals

Page 200

333 P.2d 200

166 Cal.App.2d 282

In the Matter of the ESTATE of Robert Valentino ABATE, Deceased.

Pearl P. MARLOW, Appellant, v. Daniel A. KIRSCH, as Guardian ad litem of Robert V. Abate, Jr., a Minor, Petitioner and Respondent.

Civ. 23384.

District Court of Appeal, Second District, Division 1, California.

Dec. 17, 1958.

Rehearing Denied Jan. 7, 1959.

Hearing Denied Feb. 11, 1959.

Henry Merton, Los Angeles, for appellant.

Charles E. Taintor, Scott Weller, Daniel A. Kirsch, Raymond A. Nelson, Los Angeles, for respondent.

LILLIE, Justice.

Upon the admission to probate of decedent's will, Robert V. Abate, Jr., a minor, through his guardian ad litem, filed a petition and statement of claim of interest, purporting to be his legitimate son and entitled to the entire estate. Appellant Pearl P. Marlow, executrix under the will, likewise filed a petition in her individual capacity, claiming to be the surviving wife. After a four-day hearing on both petitions, the trial court rendered judgment declaring Robert V. Abate, Jr., to be the son of decedent, his legitimate son for all purposes from the time of his birth, his pretermitted child and entitled to distribution of one-half of the estate; and Pearl P. Marlow to be the putative wife of decedent, entitled to one-half of the estate under the will, and that all of the estate constituted decedent's separate property. From this judgment Pearl P. Marlow appeals, contending that it lacks support in the evidence.

Robert V. Abate died testate August 25, 1956, in Los Angeles, possessed of estate in Orange and Los Angeles Counties. Appellant claims she was married to decedent on July 21, 1945, at San Diego. They lived together as husband and wife until their separation September 26, 1955. During this time decedent accumulated a sizeable estate including a home in Balboa which was held in joint tenancy. Upon their separation, and pursuant to an agreement, appellant transferred to decedent her interest in the Balboa property, for which he paid her $10,000. On September 26, 1955, he executed the instant will. Appellant thereafter resided apart from decedent, obtained separate employment and resumed her maiden name of Marlow. No divorce action was ever filed.

In August of 1955, decedent, then 43 years of age, met Thelma Stober. In October they engaged in intimacies and thereafter, in December, Thelma became pregnant. Upon learning of this, and in February of 1956, decedent rented an apartment on Bonnie Brae Avenue in Los Angeles, where he and Thelma, although never married, resided together as husband and wife until decedent's death on August 25, 1956. The child was born fifteen days before, on August 10, 1956.

On the issue of adoption by legitimation, respondent relied upon Section 230, Civil Code, which provides: 'The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth.'

Uncontradicted is the testimony of Thelma Stober that she had intimate relations with decedent commencing in October, 1955, and had not been intimate with any other man since then. Her testimony further shows that when she told decedent she was pregnant, he told her he 'always wanted a child with the woman he loved,' and established a home for them both by renting an apartment on Bonnie Brae Avenue where they lived together until his death. He bought her a ring, placed it on her finger telling her that 'in the sight of God's eyes we are married,' and opened up a joint bank account in their names. They sent out printed 'wedding announcements,' (Exhibit A), to all their friends and relatives, thereafter purported themselves as husband and wife, and Thelma took the name of Mrs. Abate. They travelled together in the performance of his duties arising out of certain of his health lecture tours and made a visit to her family in Washington.

Appellant testified decedent had told her he was sterile. Thelma, however, testified that she and decedent had discussed the matter of his sterility because he knew how she felt about children, and how much she loved him; and he told her he had become sterile after a plane accident, but that the doctors had assured him it was nothing permanent. Photographs of decedent were received in evidence for the court's comparison of his features with those of the child, as were the child's blood tests which were compared with decedent's hospital records showing the blood types were such as not to preclude paternity. There is nothing improbable about Thelma's story and the trial judge, as he had a right to do, after determining the credibility of the witnesses and weighing the evidence, accepted her testimony and that of her witnesses as true.

Conceding that if the trial court believed Thelma Stober's testimony, it was justified in finding decedent was the father of the minor, appellant claims decedent did not publicly acknowledge the child as his own as he is required to do under Section 230, Civil Code. She argues that his only statements acknowledging the child were made by decedent to Thelma, her sister Marcella and a friend, Pearl Campbell, at times he was ill and under the 'influence of sedation,' and at most they were only private admissions of paternity, which are insufficient to constitute public acknowledgment. She submits that no such statements were made outside the family circle and decedent at no time acknowledged paternity to his friends, family, relatives or associates; that although decedent introduced the child's mother at the hospital to Mrs. Bressert, manager of an apartment house he owned in Balboa, as 'Thelma,' he did not disclose who she was or his relations with her; that he did not tell his sister Celeste about Thelma, referring to her on one occasion outside of her presence as his nurse; and that he told appellant when she took him to the Hoxy Clinic in Texas, several days before his death, he was not the father of Thelma's baby.

On the other hand, the record discloses that upon learning of her pregnancy, decedent made his home with Thelma in Los Angeles where he lived with her as her husband, leaving only occasionally to visit his property in Balboa and to continue his lecture tours on which Thelma accompanied him; and that twice he returned from the hospital to his home with Thelma and finally from the clinic in Texas to die there. Of significance is the fact that the child was born August 10, 1956, and decedent lived only fifteen days thereafter. During this time he was incurably ill with cancer, struggling to keep alive. There is no evidence that during that time he was under the 'influence of sedation' or under 'heavy sedation' as claimed by appellant in her brief, although the record does show that he took sedation upon retiring and after eating. While decedent lived with Thelma from February, 1956, to his death, he was in the hospital on two occasions, from June 23 to July 28, and from August 11 to August 16; and after the child's birth, from August 21 to August 24, he was in the Hoxy Clinic in Texas. During this time he was critically ill, which left him little opportunity to declare to anyone outside his family circle that he was the father of the child. There was little reason to declare the same to Thelma, her sister, and her friend, for in providing and maintaining a home for her, and living with her in a normal 'husband and wife' relationship, he set up as against the world a 'legitimate household.' As to their friends and relatives, he and Thelma had previously declared they were married by sending 'wedding announcements' which would leave no reason for decedent to make any declaration to them that the child was his. Obviously anyone having been told of the 'marriage' would naturally assume that the child was 'legitimate.' As any proud father, when he first saw the child in their home upon his arrival from the hospital, he walked over to the crib and said, 'so this is my son.' He referred on numerous occasions to the boy as 'my son' to those around him--Thelma and her friend and sister, apparently the only visitors they had. At one time after watching Thelma turn the baby on his stomach, he said, 'I wish I was well enough to enjoy him.' In a telephone call to one of his doctors in the hospital, decedent told him immediately after the birth of the child 'the baby was grand.' Decedent participated in making a list of things the baby needed, gave Marcella money to buy them and the keys to his car and sent her shopping for the items, saying: 'I want the best for him.' The evidence further shows that when Thelma went to the hospital for the birth of the child, only fifteen days before decedent died, there was no one in the apartment to care for the decedent and she called his sister to take him to the City of Hope where he could be cared for until she could return from the hospital and do so herself. His sister took decedent to the City of Hope and he returned to the apartment on the same day Thelma returned from the hospital after the birth of the child. His treatment and care at the hospital at that time is a reasonable explanation why Thelma alone gave information concerning the child and his name as Robert V. Abate, Jr., for the birth certificate, and why he did not visit her in the hospital or contact the hospital or her doctors. On the very day Thelma brought the baby home, decedent arranged to and did return there from the City of Hope. It is obvious from the trial judge's findings he accepted Thelma's testimony and that of her witnesses and believed, under the unusual circumstances, that decedent's acts and conduct toward the child and his statements to those near him were sufficient to constitute public acknowledgment.

As to decedent's...