Estate of McNamara

Preliminary to the discussion of this appeal it is advisable to correct the record of this court regarding it. It was decided by ns in Department on December 18, 1918. A petition for rehearing in Bank was duly filed and on Jannary 17, 1919, an order was signed by the chief justice and two associate justices directing a rehearing. This was within thirty days after the judgment in Department and, therefore, within the time prescribed by the constitution within which rehearings may be granted. It appears, however, that the order was given the date of January 18, 1919, which was thirty-one days after the Department decision and not within the prescribed time. The order was also marked by the clerk as filed on January 18, 1919.

[1] The fact that the paper on which the signed order was written was not marked by the clerk as filed until after the expiration of the period of thirty days from the time of the Department decision is not material to the validity of the order. The joint action or concurrence of four associate justices or of the chief justice and two associate justices, “is the thing required to constitute the action of the court” (Const., art. VI, sec. 2), and, in…

I dissent.

The policy of the law has always been to favor legitimacy and to prevent, except upon the most convincing proof, the bastardization of a child born to a married woman. I believe the opinion of Mr. Justice Olney, in which all of my other associates concur, forsakes this oft-declared policy and is moreover against the letter of our statute. I believe this decision, as a result of which a woman is permitted successfully to attach the stigma of illegitimacy to her little boy, will stimulate many similar efforts on the part of others who desire to spend the money left by deceased bachelors.

The presumption arising because of the ancient policy the law to which I have referred above is well set forth in an opinion written by the learned author of the prevailing opinion in this case. I refer to Estate of Walker, 180 Cal. 484 , 181 Pac. 792 . In the opinion in that case (at page 794) I find the following language: “There is no doubt but that the presumption of legitimacy goes at least to this extent: That if it appear that by the laws of nature it is possible that the husband is the father (that is, if it appears that the husband had intercourse with the mother during the…