Opinion
Appeal from a judgment of the Superior Court of Santa Barbara County, and from an order refusing a new trial.
COUNSEL:
Fernald, Cope & Boyce, for Appellants.
Paul R. Wright, and W. C. Stratton, for Respondent Ella A. C. French.
JUDGES: In Bank. Paterson, J. Searls, C. J., McFarland, J., Sharpstein, J., and McKinstry, J., concurred.
OPINION
PATERSON, Judge
On January 9, 1864, G. W. Corliss and Lucretia, his wife, were murdered at their home on the Los Cruces rancho, in the county of Santa Barbara, and the house in which their bodies were left was set on fire and burned by the parties who killed them. The land in controversy, and sought to be partitioned herein, was the community property of said G. W. and Lucretia Corliss, and the rights of the parties depend entirely upon the question, Which one of the spouses died first, George W. or Lucretia? The law then provided -- as it does now -- that upon the death of the husband, one half of the community property should go to the wife, and upon the death of the wife, the entire community property to the husband.
Plaintiffs claim that the wife, Lucretia, survived her husband, and inherited one half of the property. The court below found that George W. survived his wife, and gave judgment for defendant.
The evidence is without conflict. The witnesses testify that they arrived at the scene of the murder on the morning after the killing. The body of the woman lay near the door; the hoops of her crinoline lay over her head, showing that she had been dragged into the house by the feet; there were small foot-tracks around a large rock a few yards from the house, and [18 P. 856] blood upon the rock; there was a mark upon the ground, indicating that the body of the woman had been dragged from the rock to the house, and there was the blood-mark of a small hand on the stone doorstep, showing that she had clutched the doorstep as she was being dragged into the house. The body of George W. lay in the middle of the floor near the fireplace, with several large wounds upon it. Both bodies were badly burned. The remains of the servant -- a shepherd -- were found several days later in the bottom of a stream several rods from the house. This is substantially all of the testimony upon the issue of survivorship.
We cannot agree with counsel for appellant in saying that the evidence "points clearly and unmistakably to the conclusion that the husband was first slain within their dwelling on the ranch, and that the wife was afterward pursued, seized outside of their habitation, murdered, and dragged by the feet over the threshold of the door, and the building then set on fire." It may be that such was the fact; but there is nothing to show which one expired first. The husband may have been wounded, and left on the floor of the house while they were pursuing the wife, and may have been alive when the latter was dragged into the house. No one can say from the evidence which one died first. Both may have been living while the house was burning. The court below, we think, properly indulged the presumption authorized by subdivision 40, section 1963, of the Code of Civil Procedure, which reads of follows: "When two persons perish in the same calamity, such as a wreck, a battle, or a conflagaration, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, survivorship is presumed from the probabilities resulting from the strength, age, and sex, according to the following rules:. .. . If both be over fifteen and under sixty, and the sexes be different, the male is presumed to have survived; if the sexes be the same, then the older." Both were between the ages of fifteen and sixty. Both perished in the same calamity. The murder, perpetrated as it was, was a calamity within the meaning of section 1693, supra, -- as much so as would be a shipwreck or a battle; and the court found that there were no particular circumstances from which it could infer who died first. We think the decision of the court upon this issue was right.
The court did not err in striking out portions of the testimony; they were mere matters of opinion. All of the facts were fully stated by the witnesses.
There was no error in excluding the verdict of the coroner's jury. It does not purport to contain a statement of any facts within the knowledge of the coroner or any juror as to the time or manner of the death of Corliss and his wife. It is a matter of mere opinion and hearsay.
Judgment and order affirmed.