BELT, J.
This is a proceeding to escheat to the State of Oregon the property of the estate of Arthur W. Wakefield, deceased. Wakefield, a single and unmarried man, died intestate, leaving real and personal property of an approximate value of $9,000. An ad
ministrator was appointed to administer the estate. In the final account, it is averred that the defendants, Emily A. Moore and Claudine Mellinger, are half-sisters of the decedent, Arthur W. Wakefield, and are his sole surviving heirs at law.
The State denies that the defendants have any right, title or interest in the estate and alleges affirmatively that Wakefield was not born in wedlock and died a bachelor subsequent to. the death of his mother.
It is the contention of the defendants that Arthur W. Wakefield was born in Missouri on April 12, 1862, during lawful wedlock, and was the son of Anna Wake-field who married Theodore Pleasant in 1861. Defendants assert that Theodore Pleasant, soon after his marriage, joined the Union army and was reported as having been killed in 1862. There is evidence tending to show that, after the death of Pleasant, his widow assumed her maiden name and that, in 1872, she married Henry Lane Clark at Topeka, Kansas. It is conceded that the defendants were born as a result of the marriage between Anna Wakefield and Clark.
The State admits that Arthur Wakefield and defendants, Emily A. Moore and Claudine Mellinger, had the same mother, but asserts there is no proof of any marriage between Anna Wakefield and Theodore Pleasant, or that Arthur Wakefield was born in lawful wedlock.
After hearing, the trial court filed the following findings of fact:
“I.
“That the allegations in the Answer, as amended, of the named defendants Emily A. Moore and Claudine Mellinger on file herein, are true and that the allegations in the Complaint and Eeply, as amended, of the
plaintiff are not supported or established by the evidence submitted in the trial of this suit.
“II.
“That Arthur W. Wakefield, deceased, died intestate at or near Grants Pass, Oregon, on or about July 3, 1936, leaving an estate now pending for administration before this Court.
“III.
“That said decedent was the legitimate son of Theodore Pleasant and Anna C. Pleasant, nee Wakefield, who were legally married to each other in Bates County, Missouri, in the year 1861; that the said Arthur W. Wakefield was so born in Bates County, Missouri, on April 12, 1862; that he was the only issue of said marriage ;
“IV.
“That Theodore Pleasant died in or about the year 1862 and that thereafter the said Anna C. Pleasant, then being the lawful widow of Theodore Pleasant, deceased, for reasons well and sufficiently shown to this Court, abandoned the use of her surname Pleasant, resumed the use of her maiden name, Anna C. Wakefield, and also reared her son, this decedent, under the name of Arthur W. Wakefield, under which name he was known to the time of his death.
“V.
“That on July 21,1872, at Topeka, Kansas, the said Anna C. Wakefield, being then the lawful widow of the said Theodore Pleasant, deceased, was legally married to Henry Lane Clark;
“VI.
“That of said marriage of the said Henry Lane Clark and Anna C. Clark, .there were born as all the legitimate issue thereof two daughters, Emily A. Clark, who was born at Topeka, Kansas, on June 25,1875, and Anna Claudine (herein known and hereinafter named as Claudine), Clark, who was born at Ottawa, Kansas, on February 27, 1879;
“VII.
“That the said Emily A. Clark was on July 3,1895, near Perrydale, Oregon, legally married to Charles William Moore; that she survived the said Arthur W. Wakefield, deceased, and she is one of the named defendants in this suit;
“VIII.
“That the said Claudine Clark was on February 22, 1899, at Dayton, Oregon, legally married to James Hiram Mellinger; that she survived the said Arthur W. Wakefield, deceased, and she is the other of the named defendants in this suit;
“IX.
“That Anna C. Clark, the mother of the said Arthur W. Wakefield, deceased, died at Salem, Oregon, on January 12, 1919.
“X.
“That the said Arthur W. Wakefield, deceased, was never married, and left no natural, adopted or putative child or children.
“XI.
“That the said Emily A. Moore and Claudine Mel-linger, the named defendants herein, are the lawful and legitimate sisters of the half-blood of the said Arthur W. Wakefield, deceased, and his nearest surviving relatives and next of kin. ”
Based upon the above findings of fact, the court entered what purports to be a decree, as follows:
“* * * that the above named defendants herein, Emily A. Moore and Claudine Mellinger, are the lawful and legitimate sisters of the half-blood of the above named Arthur W. Wakefield, deceased, are all of his next of kin and heirs at law, and that as such they are entitled to have paid over and delivered to them as their property, one-half
(y2)
to each, all of the clear proceeds and assets of the said estate of Arthur W. Wakefield, deceased, upon conclusion of the adminis
tration of said estate before this court and defendants be and are hereby awarded costs herein.”
The State appeals;
This proceeding was treated by the trial court as being in equity and has been so presented on appeal. It is, however, on the authority of
State v. McDonald,
55 Or. 419, 103 P. 512, 104 P. 967, 106 P. 444, an action at law. In the McDonald case, which was an escheat proceeding, the court said:
“Before considering any other assignments of error it will be necessary to determine the nature of such proceedings, as to whether they are at law or in equity. If the former, we will be confined to an inspection of the bill of exceptions, but if the latter, the whole of the evidence must be considered and the case tried
de novo.
In an action against the State to recover property that had been escheated, this court held that such proceedings is at law (Fenstermacher v. State, 19 Or. 504, 507: 25 Pac. 142), because the subject-matter to be tried is to identify the petitioners as heirs of the intestate, and entitle them to recover the money escheated. This ruling was followed in Young v. State, 36 Or. 417, 424 (59 Pac. 812; 60 Pac. 711: 47 L. R. A. 548), which is a case of thó same character.
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BELT, J.
This is a proceeding to escheat to the State of Oregon the property of the estate of Arthur W. Wakefield, deceased. Wakefield, a single and unmarried man, died intestate, leaving real and personal property of an approximate value of $9,000. An ad
ministrator was appointed to administer the estate. In the final account, it is averred that the defendants, Emily A. Moore and Claudine Mellinger, are half-sisters of the decedent, Arthur W. Wakefield, and are his sole surviving heirs at law.
The State denies that the defendants have any right, title or interest in the estate and alleges affirmatively that Wakefield was not born in wedlock and died a bachelor subsequent to. the death of his mother.
It is the contention of the defendants that Arthur W. Wakefield was born in Missouri on April 12, 1862, during lawful wedlock, and was the son of Anna Wake-field who married Theodore Pleasant in 1861. Defendants assert that Theodore Pleasant, soon after his marriage, joined the Union army and was reported as having been killed in 1862. There is evidence tending to show that, after the death of Pleasant, his widow assumed her maiden name and that, in 1872, she married Henry Lane Clark at Topeka, Kansas. It is conceded that the defendants were born as a result of the marriage between Anna Wakefield and Clark.
The State admits that Arthur Wakefield and defendants, Emily A. Moore and Claudine Mellinger, had the same mother, but asserts there is no proof of any marriage between Anna Wakefield and Theodore Pleasant, or that Arthur Wakefield was born in lawful wedlock.
After hearing, the trial court filed the following findings of fact:
“I.
“That the allegations in the Answer, as amended, of the named defendants Emily A. Moore and Claudine Mellinger on file herein, are true and that the allegations in the Complaint and Eeply, as amended, of the
plaintiff are not supported or established by the evidence submitted in the trial of this suit.
“II.
“That Arthur W. Wakefield, deceased, died intestate at or near Grants Pass, Oregon, on or about July 3, 1936, leaving an estate now pending for administration before this Court.
“III.
“That said decedent was the legitimate son of Theodore Pleasant and Anna C. Pleasant, nee Wakefield, who were legally married to each other in Bates County, Missouri, in the year 1861; that the said Arthur W. Wakefield was so born in Bates County, Missouri, on April 12, 1862; that he was the only issue of said marriage ;
“IV.
“That Theodore Pleasant died in or about the year 1862 and that thereafter the said Anna C. Pleasant, then being the lawful widow of Theodore Pleasant, deceased, for reasons well and sufficiently shown to this Court, abandoned the use of her surname Pleasant, resumed the use of her maiden name, Anna C. Wakefield, and also reared her son, this decedent, under the name of Arthur W. Wakefield, under which name he was known to the time of his death.
“V.
“That on July 21,1872, at Topeka, Kansas, the said Anna C. Wakefield, being then the lawful widow of the said Theodore Pleasant, deceased, was legally married to Henry Lane Clark;
“VI.
“That of said marriage of the said Henry Lane Clark and Anna C. Clark, .there were born as all the legitimate issue thereof two daughters, Emily A. Clark, who was born at Topeka, Kansas, on June 25,1875, and Anna Claudine (herein known and hereinafter named as Claudine), Clark, who was born at Ottawa, Kansas, on February 27, 1879;
“VII.
“That the said Emily A. Clark was on July 3,1895, near Perrydale, Oregon, legally married to Charles William Moore; that she survived the said Arthur W. Wakefield, deceased, and she is one of the named defendants in this suit;
“VIII.
“That the said Claudine Clark was on February 22, 1899, at Dayton, Oregon, legally married to James Hiram Mellinger; that she survived the said Arthur W. Wakefield, deceased, and she is the other of the named defendants in this suit;
“IX.
“That Anna C. Clark, the mother of the said Arthur W. Wakefield, deceased, died at Salem, Oregon, on January 12, 1919.
“X.
“That the said Arthur W. Wakefield, deceased, was never married, and left no natural, adopted or putative child or children.
“XI.
“That the said Emily A. Moore and Claudine Mel-linger, the named defendants herein, are the lawful and legitimate sisters of the half-blood of the said Arthur W. Wakefield, deceased, and his nearest surviving relatives and next of kin. ”
Based upon the above findings of fact, the court entered what purports to be a decree, as follows:
“* * * that the above named defendants herein, Emily A. Moore and Claudine Mellinger, are the lawful and legitimate sisters of the half-blood of the above named Arthur W. Wakefield, deceased, are all of his next of kin and heirs at law, and that as such they are entitled to have paid over and delivered to them as their property, one-half
(y2)
to each, all of the clear proceeds and assets of the said estate of Arthur W. Wakefield, deceased, upon conclusion of the adminis
tration of said estate before this court and defendants be and are hereby awarded costs herein.”
The State appeals;
This proceeding was treated by the trial court as being in equity and has been so presented on appeal. It is, however, on the authority of
State v. McDonald,
55 Or. 419, 103 P. 512, 104 P. 967, 106 P. 444, an action at law. In the McDonald case, which was an escheat proceeding, the court said:
“Before considering any other assignments of error it will be necessary to determine the nature of such proceedings, as to whether they are at law or in equity. If the former, we will be confined to an inspection of the bill of exceptions, but if the latter, the whole of the evidence must be considered and the case tried
de novo.
In an action against the State to recover property that had been escheated, this court held that such proceedings is at law (Fenstermacher v. State, 19 Or. 504, 507: 25 Pac. 142), because the subject-matter to be tried is to identify the petitioners as heirs of the intestate, and entitle them to recover the money escheated. This ruling was followed in Young v. State, 36 Or. 417, 424 (59 Pac. 812; 60 Pac. 711: 47 L. R. A. 548), which is a case of thó same character. The present case is to escheat the real property of an intestate, but the inquiry is practically the same; that is, to determine whether there are any heirs, and particularly whether the defendants are the heirs. The case of State v. Simmons, 46 Or. 159 (79 Pac. 498), was brought to escheat the property of an intestate. It was tried by the court without a jury. Findings of fact and of law were made and judgment rendered thereon. The case came to this court on the claim that the findings were not sufficient to support the judgment.' The question now under consideration was not suggested, but the court treated the case as an action at law, and refused to modify the judgment to accord with what was claimed to be the facts. Section 7 of the act (Laws 1903 p. 129), gives the right to a
trial by jury, if requested by either party, and makes the verdict rendered conclusive upon the court. This, we think, establishes the character of the proceeding to be an action at law.”
Since the proceeding is an action at law, we will not consider the cause on appeal as a trial
de
novo, but will determine whether there is substantial evidence to support the judgment. The findings of fact by the court are equivalent to the verdict of a jury.
The vital question is whether there is any substantial evidence tending to prove a legal marriage of Anna C. Wakefield and Theodore Pleasant and that Arthur W. Wakefield was born in wedlock.
It is conceded that, under the law of this state, if Arthur W. Wakefield was an illegitimate child and died intestate subsequent to the death of his mother, all the clear proceeds of his estate would escheat to the State of Oregon:
State v. Looney,
149 Or. 287, 40 P. (2d) 735. However, escheats or forfeitures are not favored in law (10 R. C. L. 613) and it is presumed that a decedent leaves heirs or next of kin capable of inheriting property: 21 C. J. 857. There is a strong presumption in favor of a valid marriage and the strength of such presumption increases with the lapse of time. As stated in Abbott on Pacts, p. 1034:
“It may be laid down as a broad general rule that where a ceremonial marriage has been proved, the law raises a presumption in favor of the legality of the marriage, and the burden is on the party questioning its validity to prove such facts and circumstances as will establish its invalidity.”
In the instant case there is evidence tending to show a ceremonial marriage between Anna C. Wake-
field and Theodore Pleasant in 1861, at the home of Almeda Francis, a sister of Anna Wakefield, near the town of Bntler, in the state of Missouri. The ceremony was performed by Beverend Daniel Francis, a Christian minister. Such, in substance, is the testimony of Emily A. Moore, as related to her by her mother Anna C. Wake-field. True, this testimony is hearsay, but, since it relates to the history and tradition of the family concerning the pedigree of the decedent, it is admissible as an exception to the general rule: Jones Commentaries on Evidence (2d Ed.) §1135;
State v. McDonald,
supra. There are many other facts and circumstances tending to show that, according to family tradition, Arthur Wakefield was always looked upon by the family as a legitimate child. At any rate the evidence relative to the ceremonial marriage tends to support the judgment. Having thus shown a marriage, there is a strong presumption that Arthur Wakefield was born in lawful wedlock.
It is true, as the State contends, that there is no record of the marriage, but certainly that is not fatal to its validity. In those turbulent times of border warfare, few marriages were recorded. It is also shown that many of the official records viere destroyed. After the lapse of so many years, we think the court may well rely upon the presumption of the validity of the marriage.
Since this is not a trial
de novo,
it is not necessary further to discuss the facts as disclosed by the voluminous record. Suffice it to say there is substantial evidence tending to support the judgment. We are not concerned with issues upon which the evidence is in conflict.
It follows that the judgment of the lower court is affirmed.
Rand, C. J., and Bailey and Lusk, JJ., concur.