In re the Estate of Jessup

I dissent, for the reasons stated in the opinion filed on the former hearing of this case, written by me and concurred in by a majority of the court. No new point was made on the second hearing, and nothing additional, either of law or fact, was developed. The second hearing strengthened my views as expressed in the former opinion, and the manner in which the evidence is treated in the prevailing opinion of Mr. Justice Fox has served to confirm my first convictions.

I dissent. Reargument and ré-examination of this ease have convinced me that *435 our former decision was correct, and have not materially changed my views as to the validity of the particular grounds upon which it was based. It is conceded—it would have been impossible to deny—that the proof of respondent’s paternity is complete. The only argument that can be made against his claim to inherit his father’s estate rests upon a strict construction of the statutes, remedial in their nature, designed to secure to innocent unfortunates in his situation a just share of the rights to which they are by nature as fully entitled as are legitimate offspring. No doubt a strong argument can be built on this basis of strict construction against the decision of the superior court. But I adhere to the view so strongly -put and so satisfactorily maintained by Justice Works in his opinion, that in cases of this kind the only strictness required is in proof of paternity. That being satisfactorily established by plenary proof, I think courts should lean strongly in favor of a finding that the father of an illegitimate child has done what every honest and humane man should be not only willing but…

I concur in the order, and in all that is said by the chief justice, except the reasons given in support of the order granting a rehearing. I did not think a rehearing should be granted, and therefore voted against it.

As at matter of fact, five justices voted for a rehearing in this case, and the only thing really involved in-the question debated at the bar is, whether their official act was sufficiently authenticated without an order in writing, signed by them, or by four of them,— that is to say, whether it was sufficiently authenticated by an order purporting to emanate from the court. This question has been foreclosed by former decisions; claims to property of great magnitude have been established and denied upon the construction thus placed upon the power of the court; and as all orders thus made would be rendered absolutely void by a judicial change of front on the proposition, and numberless judgments be set aside after it is too late to do justice between the parties, the exigencies of the case imperatively demand the application of the rule stare decisis.

Gershom P. Jessup died in this state on the second day of November, 1886, leaving a last will and testament, dated August 28, 1867, and being at the time of his death a resident of the city and county of San Francisco. The will was admitted to probate November 22, 1886, and letters testamentary issued to S. 0. Putnam and Isaac Jessup, the executors therein named. He was never married, and his entire estate, amounting to nearly one hundred thousand dollars, was devised to his brother, Isaac Jessup, and his two sisters, Mrs. Ann A. Lindsley and Mrs. Caroline 0. Bogart, the two latter of whom were and are non-residents of this state.

On the eleventh day of April, 1887, the petitioner, respondent here, describing himself as Richard P. Jessup, but signing as Richard Jessup, and who is subsequently shown to have been usually known as Richard Miller, filed his petition in the said ease in probate, in which, after setting out the preliminary facts showing the death and pendency of the probate proceedings, and showing the character and condition and amount of the estate, he avers substantially that he is a son of said Gershom P. Jessup, deceased, and of Josie Landis, deceased; that he was…