ESTATE of Matti WAINOLA, also known as M. Wainola, Deceased. Edessar Geraldin HUDGINS, a minor, and Edessar Barboza, quardian of Edessar Geraldin Hudgins, a minor, Appellants,
Anna Tattari RISTOLAINEN, Uuno Tattari and Eero Tattari, and W. D. Riley, as Administrator of the Estate of Matti Wainola, also known as N. Wainola, deceased, Appellees.
[79 Ariz. 343] Brandt & Baker, Yuma, for appellants.
A. J. Eddy, Yuma, for appellees Anna Tattari Ristolainen, Uuno Tattari and Eero Tattari.
Glenn Copple, Yuma, for appellee W. D. Riley.
Matti Wainola, a resident of Yuma, Arizona, departed this life on September 23, 1951, and W. D. Riley was appointed administrator of his estate. One Eero Tattari, representing himself to be one of the decedent's heirs, filed a petition alleging that various persons claimed to be heirs and praying that the court ascertain and declare the rights of all persons claiming an interest in the estate. After the usual orders and notice required in such proceedings, Anna Ristolainen, Uuno Tattari and the said Eero Tattari, appellees herein, filed a complaint alleging decedent left neither wife nor surviving children and claiming to be the sister and nephews of decedent and therefore his heirs. Edessar Geraldin Hudgins, a minor, by her guardian Edessar Barboza, as defendant, filed an answer denying plaintiffs as heirs were entitled to share in the estate and claiming that the defendant minor was the child of Wainola and therefore entitled to the whole of the estate. The issue tried was whether decedent was the father of the child. The court adjudged he was not and awarded the estate to the sister and nephews. Defendant appeals. The administrator appears in this court as an appellee, adopts the brief of the other appellees and requests that the lower court's decision be sustained.
There was certain evidence which during the course of the trial the court believed to be inadmissible but permitted defendant to submit in the form of an offer of proof. This was done by taking and reporting the evidence in full. At the termination of defendant's case, her counsel again urged that the excluded evidence be admitted, suggesting that the matter be submitted on written memorandum. The court stated, 'if you want to produce some authorities * * * my ruling stands subject to being reversed if you can persuade me I am in error.' Authorities were submitted and argued at the
conclusion of which the court stated, 'I will examine the authorities you have cited and advise you by mail.' Upon further reflection the court reversed its ruling and admitted the evidence covered by the offer of proof.
The first complaint of defendant is that the court had no jurisdiction nor right [79 Ariz. 344] to reverse its ruling after the evidence was submitted and admit and consider the evidence offered. We fail to perceive merit in this contention. There is no possibility that defendant could be prejudiced by the precise manner in which it occurred. The defendant was benefited to the extent of having the court consider the evidence in arriving at its conclusion. Nothing of value could result by the court taking the time to permit a re-examination of witnesses upon the same subject matter. The procedure was had with the full consent of defendant. Counsel was advised that the court had excluded the evidence but reserved the right, upon examination of authorities submitted, to reserve its ruling and admit the evidence. Had defendant thought this method of handling the matter would be to her disadvantage, she should have objected rather than consented to such procedure. If there existed any basis for valid objection, it certainly was waived.
It is claimed that, assuming the court had the power to admit the evidence, the included testimony was such as to prevent the judgment rendered. This proposition makes necessary an analysis of all of the evidence.
Edessar Barboza, mother and guardian of the minor defendant, testified in substance that she first came to Yuma and became acquainted with decedent in 1930; that she remained in Yuma until October, 1932, when he took her back to Los Angeles in his car; and that during this period of time she saw him practically every day. In October, 1935, she went through a marriage ceremony in Yuma with one Earl Hudgins. She then lived in Los Angeles with Hudgins until November, 1941, when she returned to Yuma. During this period decedent came to Los Angeles to see her every two or three months. Upon her return to Yuma, she remained there until she went back of Los Angeles in July, 1942. She testified that from January 1, 1942 until the following July when she want to Los Angeles, she had intercourse with decedent two or three times a week and that thereafter decedent visited her in Los Angeles each month until the baby was born on February 20, 1943. When the child was born, she gave the sanitarium the name of Hudgins, her purported husband, as the father of the child. The copy of the birth certificate recites that the full name of the father is Earl Hudson Hudgins. The mother's explanation of this was that decedent told her to so represent the name of the father. The mother further testified to the effect that decedent admitted to her he was the father and furnished money at rather regular intervals and treated the child with great affection giving her money and toys. She likewise testified that she took a picture of decedent in the casket at his funeral so that the child could 'see and know her daddy'.
The record shows that the purported marriage of the mother of Hudgins was annulled in April, 1947, and that she remarried him in November, 1951. She testified that [79 Ariz. 345] although living with him, she never lived with him as husband and wife. In fact, she stated that, although she had been married three or four times, 'I haven't got a husband'. The record further shows that decedent received his citizenship papers in November, 1944, whereby he became a citizen of the United States. As we interpret the mother's testimony, she and Wainola planned to get married when he received his citizenship papers. She continued, however, to live with Hudgins until 1947 and remarried him in 1951.
Viola Poindexter, an older daughter of Edessar Barboza, testified that from the time the mother returned to Yuma in the fall of 1941 until June, 1942, she (the witness) lived with her mother and that about every weekend and a night or two during the week, her mother stayed at Wainola's. The court was compelled to strike several voluntary statements of this witness to the effect that her sister was Wainola's child. The witness seemed anxious to help establish the fatherhood of decedent. This witness
further testified that during pregnancy Wainola made visits to Los Angeles each month or two to see how her mother was getting along and also that he came to see her the day after the baby was born. She testified that Wainola was very fond of the little girl and on occasion he brought her toys and clothes. She testified that it was the general reputation in the family that the defendant was the child of Wainola and that her mother had told her she was going to have Wainola's baby.
Mary Dantznac, another daughter of Edessar Barboza, who lived in Los Angeles, testified that during the period of pregnancy, decedent came to Los Angeles about once a month and was there the day after the birth staying several hours with the mother and baby.
Burr Holt, a witness for defendant, testified that he had lived in the Wainola courts since about May, 1941, and that during that time he had seen Edessar Barboza there on at least two occasions. He also testified that he had never seen anyone go into Wainola's living quarters ...