SHAW, J.

This is an appeal from an order annulling and revoking the probate of a document admitted to probate as the last will of William Jones, deceased. The contest was initiated within one year after probate, by and on behalf of Lester William Jones, who alleges that he is an illegitimate son of the testator and that he was duly adopted as legitimate by the testator in the manner specified in section 230 of the Civil Code. The grounds of the contest were that at the time of the execution of the will the decedent was not of sound mind and that the execution of the will was procured by undue influence.

The cause was tried by a jury and a verdict was returned in favor of the contestant on both of the alleged grounds.

It is earnestly contended that the evidence is insufficient to support the verdict on either ground. There was no direct evidence of undue influence, but there was proof of circumstances from which the jury might with reason have inferred that the beneficiary of the will and certain other persons conspired to procure the execution of the will, and that, taking advantage of the weak condition of the testator in his last sickness, they prevailed upon him to make this will, contrary to his real wishes and intentions. On the issue of insanity there was much direct evidence both for and against the verdict. At the very time of making the will, the persons present were those who, it is claimed, exercised the undue influence. They all, without exception, testified that the testator was then of sound and disposing mind. There was no direct evidence to the contrary, as to his condition at that time. It is argued that for this reason the verdict on this issue is contrary to the evidence. There was, however, substantial evidence on which to found two distinct theories, upon either of which the jury might have reached the conclusion that his unsoundness of mind existed at the time of the making of the will and rendered him incompetent to execute it. The evidence tended to show that the testator was afflicted with a gradual increasing dementia or insanity, which, though not always manifest, was ever present affecting his mental capacity, particularly in his later life and during his last illness when he made the will. Other evidence tended to show that his insanity was of that form which manifests itself by frequent attacks, with fairly lucid intervals between. With respect to this, the appellant insists that the only evidence relating to his condition when he was making his will was to the effect that he was then in a lucid interval. But there was evidence that both before and after he made the will, and when he was apparently lucid, his persistent purpose was to provide for this child and that he knew that it was his own child and openly acknowledged it as such. The will did not even mention the child, and during the time it was under consideration, according to the testimony introduced by appellant, he denied that he was the father of the child. From this evidence, the jury might have believed that the time when he was making the will was not one of his lucid intervals, but was one of the periods when his mind was clouded by delusions concerning the paternity of his child. In this condition of the case upon the evidence, the decision of the jury cannot be disturbed upon the ground that it is contrary to the evidence.

The most interesting question presented is that of the adoption of the contestant, Lester William Jones, as a legitimate son of the deceased. Section 230 of the Civil Code is as follows:

"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."

The fact that Lester William Jones was the illegitimate son of William Jones was clearly proven by uncontradicted evidence. It was also shown that the decedent acknowledged Lester to be his own child many times, willingly and on all occasions, as the father of a legitimate child would naturally do. Without stating details, it is sufficient to say that these requirements of the code were fully met by the proof. (Estate of Gird, 157 Cal. 542, [137 Am. St. Rep. 531, 108 P. 499]; Blythe v. Ayres, 96 Cal. 577, 592, [19 L.R.A. 40, 31 P. 915]; In re Jessup, 81 Cal. 425, [6 L.R.A. 594, 21 P. 976, 22 P. 742].) The only doubt is upon the question whether his treatment of the child constituted a sufficient "receiving it as such (his own) . . . into his family, and otherwise treating it as if it were a legitimate child," to comply with the true intent of the code provision. The facts and circumstances bearing upon this point are as follows:

For many years prior to his death the decedent resided on his cattle ranch in the western part of Merced County, in the mountains near the line of San Benito County. In 1897 the mother of this boy, then known as Laura Roberts, went to this ranch with him and there lived and cohabited with him until November, 1902. She testified that they expected to be married but that they just lived together from year to year without having any ceremony performed. Two children were born to them during this time, Corinne, a daughter, born in 1898, and William, a son, born in 1900, but who died about a year thereafter. In May, 1902, she became pregnant with the boy here in question. In November, 1902, on account of the strange and rather violent conduct of Jones toward her, she left the ranch, taking the little girl with her. She never afterward lived with Jones. The boy, Lester, was born on February 27, 1903, at the house of her sister. In July, 1903, she married William W. Baker and she has lived with him ever since that time. From the birth of this boy, while Jones lived, he looked after the boy, frequently visited him at the home of the mother, acknowledged him as his son, gave her money for his support and bought clothing for him at frequent intervals. Some two or three years after her marriage with Baker she had a child by him. The girl Corrine died in the summer of 1908. Soon after her death Lester had scarlet fever and it left him in somewhat delicate health. About the time of his recovery, Jones upon one of his visits to the boy, seeing that his health was not good, invited or requested the mother to come with her family to his ranch in the mountains and remain there with him for awhile to benefit the boy's health. She acceded to this and thereupon she and her husband, with the boy Lester, and the child of Baker, went to said mountain ranch and remained there for two months. Jones at that time was living in a four room house on the ranch. In this house he had theretofore lived, usually alone, but sometimes with a man who assisted him in the ranch work. At the time of this visit an old man was living with him doing chores about the place. During that visit of two months Jones, Mr. and Mrs. Baker, and the two children lived in the four-room house and Mrs. Baker cooked for them all. Jones played with Lester, spoke of him as his boy, slept with him for the greater part of the time, took him to the house of his half-brother Lee, living near, and there spoke of him as "my boy." The boy called him "papa," and Jones apparently took as much interest in the boy as a parent would ordinarily take in a legitimate child. The boy grew better and as soon as his health was established, the mother and Baker left the ranch, taking the child with them. Neither before or afterward was the boy on the ranch or present at his father's home, and in no other manner, nor at any other time did Jones receive the child into his family assuming that the establishment was a "family," within the meaning of section 230

The meaning and effect of section 230, so far as it requires that the father of an illegitimate child must, in order to adopt it as legitimate, receive it as his own into his family, have been frequently considered by this court. We are satisfied that, under these decisions, William Jones had a "family," within the purview of the provision, into which he could have received this child. In Estate of Jessup, 81 Cal. 408, [6 L.R.A. 594, 21 P. 976, 22 P. 742], the prevailing opinion does not satisfactorily determine whether in order to come within the section a man must have a family in the strict sense of a collective body of persons living together as a household, or whether it is sufficient that he have a family in the sense of having brothers and sisters, with whom he is not living but with whom he associates ( 81 Cal. 424, 434). The decision there was that the child had not been received into the family, whether the word was taken in the one sense or the other. The discussion of the true definition of the word "family" was, therefore, not an important part of the opinion. The court was unanimous to the effect that it was not necessary that he should be married in order to have a family within the meaning of the provision. In Blythe v. Ayres, 96 Cal. 577, [19 L.R.A. 40, 31 P. 915], it seems to have been considered that Blythe had no family in either sense of the word. The child was there declared to be an heir because Blythe had made a written acknowledgment that he was her father as provided in section 1387 of the Civil Code. In Garner v. Judd, 136 Cal. 394, [ 68 P. 1026], the court said that a man who has a dwelling in which he makes his home, living with a woman to whom he is not married, but whom he holds out to the world as his wife, has a family into which he must receive an illegitimate child in order to adopt it under section 230 In Estate of De Laveaga, 142 Cal. 169, [75 P. 794], the court held squarely that a man cannot adopt a child under this section unless he has a "family, or at least a home, into which he can receive it." In that case the father had parents, brothers, and sisters living, with whom he was on friendly terms, but he did not live with them. He also had a place of abode, but he never received the child therein or took it among his kindred. In Estate of Gird, 157 Cal. 542, [137 Am. St. Rep. 131, 108 P. 499], the father was unmarried, but lived on his ranch in a dwelling-house occupied by a woman as his housekeeper, assisted by the mother of the child. His relations with the mother were clandestine. It was held that this household constituted a family within the meaning of this section.

The facts in the case at bar on this point are not essentially different from those in Estate of Gird, 157 Cal. 542, [137 Am. St. Rep. 131, 108 P. 499]. Jones had a residence and dwelling-house which was his fixed place of abode. Although, for long periods of time, he lived in the house alone, it was nevertheless his home. Clearly, if he had taken this child there and they had lived there as father and son, the two would have constituted a family sufficient to satisfy this statute. We are of the opinion that the section requires nothing more in this respect than that the father should have a fixed habitation, constituting his home, which, if he takes the child to live with him there, would be the home of such family, although the family may then consist of but the two persons.

The residence of the child for two months with Jones in his own house was, in our opinion, a reception into his family as his own child, and complied with the provision under consideration. Jones's condition in life must be considered in this connection. If the child had been born in wedlock and the mother had died, and Jones could not have conveniently kept him on the ranch without having some other person there to take care of him while he was at work, it would have been reasonable for him to have the boy kept elsewhere during his tender years by a competent person. In such a case, if the child's health was bad and a sojourn for a time at the ranch would have improved it, the natural and reasonable course toward a legitimate child would be to have the person in charge of it take it to the ranch and remain there with it while it was recuperating. Mrs. Baker, in all respects except in her ideas as to the marital relation, appears to have been a fit person to care for a small child. Both she and Jones appear to have considered the separation as in the nature of a divorce and no enmity or ill-feeling arose between them on account of it. The visit of the boy to the ranch with his mother's family was, under the circumstances, very like what would have been expected in the case of a legitimate infant child necessarily living away from his father's home in the family of some other person. Jones openly received the boy into his home as his own child. It was his family into which the boy came. Although the boy was at the same time a member of his mother's family, it was also, while living in this manner in his father's home, a member of his father's family. Where the father and mother of a child have been divorced, or have not been married, and live apart and have separate and distinct families, the child must often have a dual family relation as a member of each family. If under such conditions the two families should come together as one, it would be during that period of time as much a member of the father's family as of the mother's, and this would make a reception into his family sufficient to carry out the purpose and object of the section we are considering. There was, therefore, a substantial compliance with the section in this particular.

The facts we have related are sufficient to show that Jones, before and after this visit, was "otherwise treating it as if it were a legitimate child," within the meaning of the section. He claimed paternity, visited the child often, contributed continuously to its support, had a parental affection for it, and his conduct and feelings toward the child were substantially the same as those of a father toward a legitimate child under similar circumstances. Our conclusion is that the evidence of adoption under section 230 is sufficient to support the finding.

Upon the trial, Lee Jones, a half-brother of testator, was a witness for the contestant. He testified that he had a conversation with the testator with reference to his property two days before his death and twenty-six days after the execution of the will. He was then asked to relate that conversation. Objection was made on the ground that it was incompetent and immaterial. The court then said to contestant's counsel, "What is the purpose of this?" Counsel answered that the purpose was to show his mental condition at the time he made the will, and also that it was admissible to show that undue influence had been exercised upon him at the time he made the will. The court thereupon overruled the objection. Witness then answered as follows:

"When I went in to see him I said, `Bill, how are you?' He said, `I am awful sick, Lee.' I says, `I suppose you have everything fixed up Bill, the way you want it,' and he said, `No, I haven't, Lee. I was talked into making the will and cutting off my boy without a cent. I know it ain't right; I want to give my boy the property. Ain't that right, Lee?' I said, `Yes, if you are sure it was your child, that is right. Are you sure, Bill, that is your child?' He said, `Yes, I am sure.' I said, `If that is the way you feel about it, that is right. You are a very sick man and you should attend to it.' He said, `Let this go for a day or two days and I will fix it up.'"

It is obvious that the contestant did not offer this evidence to prove that the testator was of unsound mind at the time the conversation took place. His theory was that he was of sound mind at that time, but that the purpose and feeling he exhibited then indicated that he must have been insane at the time the will was made four weeks before, inasmuch as the will gave nothing at all to the boy, and did not even mention him. So much of the conversation as simply disclosed his feelings and desires with respect to the boy would be admissible on the issue of insanity. For similar reasons it would tend to raise an inference, if at the time of the conversation he was free from any influence, that his real wish and purpose was to give his property to the boy, and that the will giving it to another was probably the product of undue influence. Other parts of it were competent as proof of the paternity of the child and of his acknowledgment thereof, as going to show the adoption. But the evidence was avowedly offered as a statement by the testator that the will had been procured by undue influence and that it was the result of undue influence upon him. It was not a part of res gestae of the execution of the will. The declaration "I was talked into making the will and cutting my boy off without a cent" was a narrative or relation by the testator of a past event, an express declaration that undue influence had been exercised upon him whereby he was caused to make this will. We have so often declared that such evidence is hearsay and inadmissible for that purpose that it is unnecessary now to discuss the subject. We refer to the following cases where the doctrine is elaborately treated and stated: Estate of Calkins, 112 Cal. 302, [44 P. 577]; Estate of Arnold, 147 Cal. 593, [82 P. 252]; Estate of Snowball, 157 Cal. 308, [ 107 P. 598]; Estate of Ricks, 160 Cal. 466, [ 117 P. 532]; Estate of Ricks, 160 Cal. 485, [ 117 P. 539]; Estate of Lavinburg, 161 Cal. 546, [ 119 P. 915]; Estate of Gleason, 164 Cal. 760, [ 130 P. 872].

This declaration of the testator would be very persuasive evidence to a jury and its admission must be presumed to have been prejudicial to the appellant on the issue of undue influence. If no other ground of contest had been presented, it would be necessary to reverse the case for this error. But it was also alleged that the testator was not of sound mind when he executed the will. Separate verdicts were returned on each of the issues. Upon the latter issue, as we have said, the evidence, while conflicting, was sufficient to support the verdict that he was of unsound mind at the time the will was made. This being the case, the verdict is sufficient to support the judgment without regard to the decision as to undue influence. Errors, though substantial, in regard to the trial of that issue, must for this reason be considered as harmless so far as the judgment is concerned. (Lowe v. San Francisco etc. Ry. Co., 154 Cal. 578, [ 98 P. 678].) For this reason we refuse to reverse the judgment because of this ruling.

After the trial had proceeded five days, the appellant discovered that two jurors serving on the jury were also then members of the grand jury of the county, and he thereupon challenged them as jurors on that ground and asked to have the challenge allowed. Under the code they were clearly incompetent. (Code Civ. Proc., sec. 602, subd. 1; sec. 199, subd 4.) If the challenge had been made at the time the jury was impaneled it would doubtless have been allowed. But they were impaneled as grand jurors before the impanelment of this trial jury. The records of the court, easily accessible to the appellant, showed that fact. He might also have learned it by an examination of the jurors on their voir dire, but he neglected to do so. No reason was offered for his failure to ascertain the fact before the jury was sworn. Under the circumstances, the court did not abuse its discretion in holding that the objection was too late and must be deemed to have been waived. (People v. Sanford, 43 Cal. 31; People v. Chung Lit, 17 Cal. 320; People v. Mortier, 58 Cal. 266. )

A number of alleged errors concerning the admission and rejection of evidence are referred to in the brief but not argued. We have examined them and find that none of them is of sufficient importance to justify further notice.

The order appealed from is affirmed.

Angellotti, J., and Sloss, J., concurred.

Hearing in Bank denied.

Melvin, J., dissented from the order denying a hearing in Bank, and filed the following opinion on September 29, 1913: