Fitch

This is an appeal by defendant from a judgment against the estate of her testate, George Hamlin Fitch, said judgment being based on an alleged separation agreement entered into by plaintiff and decedent during his lifetime.

Respondent and Fitch were married by a justice of the peace at Fairfield, Solano County, on the seventh day of June, 1912. At the date of marriage plaintiff was thirty-six years of age and had two daughters by a former marriage, one of whom was between thirteen and fourteen years of age; the age of the other girl is not shown.

In September, 1912, Fitch and his wife were having marital difficulties, the nature of which, other than Fitch’s statement that he was disappointed, does not appear. Mrs. Fitch consulted James M. Hanley, an attorney, who "wrote to Fitch concerning the matter and the letter brought a reply from J ames F. Lanagan, an attorney who represented Mr. Fitch. Fitch being dead and Mrs. Fitch not being competent to testify under the provisions of subdivision 3, section 1880, of the Code of Civil Procedure, Mr. Hanley appears to have been the only available person who had knowledge of the negotiations that led up to the writing hereinafter referred…