By the Court, Crockett, J.:
In the year 1865 one Richard Pearson died in the County of Colusa, seized of certain real estate situate in that county, and leaving a last will and testament, which was duly admitted to probate, whereby he devised to the defendant Laura Pearson, who is styled in the will the wife of the testator, and to Theodore, Henry, Mary, William, Richard, and Jefferson Pearson, who are described in the will as children of the testator, and to Susan Price, equal portions of his real estate. The plaintiff is a daughter of Pearson by a former wife, from whom he was divorced; and the action is ejectment to recover from the defendants the possession of all the real estate of which her father died seized. The plaintiff was [623]*623not mentioned or in any manner referred to in the will of her father : and she claims that, under section seventeen of the Statute of Wills, she inherited from him as though he had died intestate. In the Court below judgment was entered in favor of the plaintiff for all the real estate of which her father died seized; and the defendants appeal from the judgment and from the order denying their motion for a new trial.
At the trial certain facts were agreed to “for the purposes, of the trial of this action,” and embodied in a written stipulation, signed by counsel. The answer contained a literal copy of the will; and amongst other facts, it was admitted by the stipulation that Pearson made, executed, and published an instrument in writing, signed and sealed by him, “purporting to be his last will and testament, in the presence of witnesses, as set forth in defendant’s answer to said amended complaint.” The stipulation then sets forth certain proceedings of the Probate Court, touching the admission of the will to probate, the settlement of the final account of the executor, and the distribution of the estate, which it is admitted is a correct statement of those proceedings. It was also admitted that the plaintiff is a daughter of Pearson by his former wife, from whom he was divorced; and that the defendants are in possession of the land, holding the same as devisees under the will, and under the decree of distribution. There was no proof that the defendant, Laura Pearson, was the wife, or the other defendants the children of Bichard Pearson, except such as is furnished by the facts admitted by the stipulation, or by the original will, which the defendants claim was put in evidence.
The Court below held : First, that there was no proof, or not sufficient proof, that the defendant Laura was the wife, or the minor defendants the legitimate children of Richard Pearson, deceased; and that as to the plaintiff, he must be held to have died intestate; that being his only heir at law, [624]*624she is entitled to the whole estate ; second, that the decree of distribution is void on its face, and does not estop the plaintiff.
The defendants contend that these rulings are erroneous; and further, that the District Court is not the proper forum, or ejectment the form of action in which the plaintiff can assert her rights, if she has any.
If the last point be well taken it is decisive of this appeal, and will therefore be first considered. That the District Court has jurisdiction of an action of ejectment every one will concede; but whether the plaintiff can maintain that form of action is the point raised by the defendants. In discussing this point it becomes material to inquire by what tenure the plaintiff holds, and what status she occupies towards the real estate of her deceased father. Section seventeen of the Statute of Wills provides that if a testator shall omit in his will to provide for any of his children, unless it shall appear that the omission was intentional, the omitted child ‘ shall have the same share in the estate of the testator as if he or she had died intestate, to be assigned as provided in the preceding section.” The next preceding section provides that if a child be born to the testator after the making of his will, and no provision shall be made therein for such child, it shall have the same share in the estate as if the testator had died intestate, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child; ‘ ‘ and the share of such child shall be assigned as provided by law, in case of intestate estates.” The share of a pretermitted child is therefore to be “assigned as provided bylaw, in case of intestate estates.”
If the testator leave no wife surviving him, nor any issue except the pretermitted child, it is clear the child would take the whole estate in the same manner as though the testator had died intestate. The estate would, of course, be [625]*625subject to the payment of debts; and, if there were no other statutory provisions, the rights of the child would be, in all respects, precisely the same as though the testator had died intestate. There can be no doubt that, in such a case, the child would take by descent, and not by purchase. But section eighteen provides that the share of the omitted child “ shall be first taken from the estate not disposed of by will, if any; if that shall not be sufficient, so much as shall be necessary shall be taken from the devisees or legatees in proportion to the value they may respectively receive under the will, unless the obvious intention of the testator in relation to some specific devise or bequest, or other provision in the will, would thereby be defeated; in such case, such specific devise, legacy, or provision may be exempted from such apportionment, and a different apportionment consistent with the intention of the. testator may be adopted.” These provisions can have no application to a case in which the testator left no surviving wife, nor any issue except the pretermitted child; in which event the child would take the whole estate, and there would be no need for any apportionment. The same remark applies to section nineteen, which provides that if the omitted child shall have had an equal proportion of the testator’s estate bestowed on it in the lifetime of the testator by way of advancement, it shall take nothing under these provisions. If the omitted child is entitled to the whole, the question of advancement becomes, of course, immaterial. I am, therefore, of opinion that if there was no surviving wife, or other issue of the testator than the plaintiff, she might maintain ejectment if there be no pending administration of the estate.
But it is argued that, even though there be a surviving wife, and other lawful issue than the omitted child, the latter will nevertheless take by descent, as though the tes[626]*626tator had died intestate, and will become a tenant in common with the wife and other children; in which event, ejectment would lie to recover the share of the omitted child in the real estate, if there be no administration. In support of this view, it is claimed that the provisions in sections eighteen and nineteen only regulate the method of distribution, and do not touch the question of the title acquired by the omitted child. On the other hand, it is urged that the. title of all the estate devised passes by the will to the devisees, and that the omitted child has no interest whatever therein, if there be an amount of the estate not devised equivalent to the share of such child, or if its share was advanced by the testator in his lifetime. But if no advancements were made, and if there be no estate not devised, still, it is claimed, the title passes to the devisees by the will, and that the rights of the omitted child can be worked out only through proceedings in the Probate Court for distribution; or if there be no administration, then through the medium of a Court of equity. Under section seventeen, the omitted child is to “ have the same share in the estate of .the testator as if he or she had died intestate,” to be assigned “as provided by law in ease of intestate estates.”
The next inquiry is: What would have been the share of such child if the testator had died intestate, and how must it have been assigned ? The Statute of Descents and Distributions answers the first branch of the inquiry. “ When any person having title to any estate, not otherwise limited by marriage contract, shall die intestate as to such estate, it shall descend, and be distributed, subject to the payment of his or her debts, in the following manner,” and then proceeds to define the “ shares ” which the surviving husband, or wife, and the children, if there be any, are to take. The estate descends, and the title vests in the heirs, by operation of law, subject to the payment of debts'. The reasonable inference from these provisions is, that the omitted child is [627]*627to take the same share of the estate, and to hold it by the same title as though the testator had died intestate; and it is to be assigned, “as provided by law in case of intestate estates.” That is to say, it is to be distributed, after the payment of debts, to those entitled to it, by a decree or order of the Probate Court. But-section eighteen provides that in a certain contingency the usual order of distribution is to be departed from. If a portion of the estate be not devised, so much of this as may be necessary shall be assigned to the omitted child, in lieu of its interest in the remainder of the estate; or if it has already received its full share by way of advancement, it shall receive nothing more. But all this relates merely to the basis of the distribution, and to the method adopted for assigning to the omitted child its share of the estate, but has no reference to the question of title, or the tenure by which the estate is held. I am, therefore, of opinion that the omitted child takes the title by descent, and becomes a tenant in common with the devisees. If it were otherwise, and if the title to the property went exclusively to the devisees, a conveyance by them to a purchaser in good faith, and for a valuable consideration, would exonerate the estate from the claim of the omitted heir, and remit him to his remedy against the devisees personally. This remedy would often be of no practical value; and the omitted heir would hold his estate by a frail tenure, if he had no greater security than the personal liability of the devisee. The following authorities tend to support the proposition that the omitted child takes the title by descent: Wilson’s Exrs. v. Fosket, 6 Met. 405; Bancroft v. Ives, 3 Gray, 371; Bradly v. Bradly, 24 Mo. 312; Hargardine v. Pulte, 27 Mo. 423.
This brings us to the point, whether the Court below erred in holding that there was no sufficient proof that the defendant Laura was the wife, and the minor defendants the legitimate children of the testator. In considering this [628]*628point, we shall treat the original will as having been put in evidence. It appears from the statement on motion for a new trial that at the close of the testimony “plaintiff’s counsel then said that they desired that the original will should go with the papers in evidence, that the Court might inspect the original manuscript, and observe the alterations and interlineations in different handwritings, to which the defendants’ counsel assented, saying that they, too, wanted it to go in evidence.” We think this must be regarded as putting the will in evidence for every purpose for which it was legitimate testimony. The recitals in the will constitute the only evidence offered tending to prove that the defendant Laura was the wife, and the minor defendants the legitimate children of the testator.
But if the recitals were competent evidence, tending to prove the fact, and if there was no rebutting evidence, it is insisted,' nevertheless, that the evidence was insufficient to establish the marriage and the legitimacy of the children. The first point to be examined is whether the recitals in the will furnish any evidence which the Court could properly consider as tending to prove the controverted facts. That such evidence has been received in Courts of high authority admits of no doubt. The earliest case to which our attention has been called is Goodright v. Moss, 2 Cowper, 591, in which Lord Mansfield held that, on an issue as to the legitimacy of the plaintiff, the answer of his deceased mother to a bill in chancery, wherein she admitted he was born out of wedlock, was admissible in evidence. The decision was put upon the ground that if the mother had been living she would have been a competent witness to prove the fact; and that after her death her declarations were competent. He says: “An entry in a father’s family Bible, an inscription on a tombstone, a pedigree hung up in the family mansion, are all good evidence. So the declarations of parents in their lifetime.” [629]*629The answer was therefore admitted as a declaration by the mother touching the legitimacy of the son. In Vowles v. Young, 13 Ves., Jr., 141, Lord Chancellor Erskine held that the declaration of a husband, to the effect that his wife was illegitimate, was admissible in evidence. In Whitelocke v. Baker, in the same volume, p. 514, Lord Eldon says: “ Declarations in the family, descriptions in wills, descriptions upon monuments, descriptions in Bibles and registry books, all are admitted upon the principle that they are the natural effusions of a party who must know the truth, and who speaks upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth.” The case of Doe on demise of Johnson v. The Earl of Pembroke, 11 East, 504, carries the doctrine, apparently, to an extreme length. In that case the question was whether one Win. Johnson, through whom the plaintiff claimed, had an elder brother, Thomas, through whom the defendants claimed. On this point the defendants offered in evidence a paper, purporting to be the will of one Richard Johnson, signed by him, and properly attested, dated in 1738, but with the seal torn off. In this condition it was found shortly after the death of, the person last seized, in a drawer in his house, where it was kept with several canceled bonds and a current lease of his farm. It appeared by other evidence that John Johnson’s father was named Bichard; and if he were the maker of the will which was found in the drawer of his grandson, the person last seized, then it did appear by'the will of the grandfather that he had an elder brother named Thomas, who was also the elder brother of William, through whom the plaintiff claimed. Lord Ellenborough admitted the will in evidence on the ground that, being kept with other family papers, as something relating to the family, it might be considered as a recognition that there was a person in the family of the name of Thomas Johnson, an elder brother of William, through whom the [630]*630plaintiff claimed. In Slaney v. Wade, 1 Mylne and Craig, 338, the question was whether one Robert Moreton was the legitimate son of Slaney Moreton and Elizabeth Moreton, his wife. In deciding the case the Lord Chancellor said:
‘‘ It is proved, therefore, that there was a Slaney Moreton and an Elizabeth, his wife, at Birmingham; that after the death of Slaney Moreton, Elizabeth Moreton, widow, speaks of her son Robert Moreton, there being no trace of any second marriage; in addition to which, Robert Jones Moreton, . by his will, gives two thousand pounds, in trust, for Robert Moreton, of Bilston, the lunatic, describing him as his relation. This, in the absence of evidence throwing any doubt upon the case, is conclusive of the fact that Robert, the lunatic, is the legitimate son of Slaney Moreton and Elizabeth, his wife.” The Court not only held that the declarations of the mother, and the will of the relative, were competent, but that in the absence of rebutting proofs or circumstances, they were sufficient evidence of legitimacy. The same rule appears to have been adopted in some American Courts of high authority. In Carjolle v. Ferrie, 26 Barb. 177, the declarations of a mother as to the legitimacy of her son, were held to be admissible in evidence after her death, if they were made ante litem motam. The case was taken to the Court of Appeals, where this ruling was affirmed (23 N. Y. 91). In Fenton v. Reed, 4 John. 52, the question was whether a marriage had been solemnized between the plaintiff and one Reed. The Court say: “Proof of an actual marriage was not necessary. Such strict proof is only required in prosecutions for bigamy, and in actions for criminal conversation. A marriage may be proved in other cases from cohabitation, reputation, acknowledgment of the parties, reception in the family,” etc.
But we have been referred to two cases, which, it is claimed, hold a contrary doctrine: Clayton v. Wardell, 4 N. Y. 230, and Blackburn v. Crawford, 3 Wall. 176. In the [631]*631former case the question was as to the legitimacy of the issue of a marriage, which was claimed to be void on the ground that the wife had been previously married and that the first marriage had not been dissolved or terminated by the death of the husband or otherwise. There was no direct proof of the first marriage, and it was attempted to establish it by evidence of cohabitation, of acknowledgment of a marriage, of reception by their relatives and friends, and of common reputation. It was clearly proved that the connection between the parties, at its commencement and for a considerable time thereafter, was meretricious, and the evidence tending to prove a subsequent marriage was conflicting and unsatisfactory. On these facts the Court held that the presumption was quite as strong that the connection continued to be meretricious as that there was a subsequent marriage. “ The most that can be said upon this point is that there is a conflict of presumption, and in such a case the rule is that that must yield which has the least probability to support it” (p. 237). The decision turned upon the point that the connection having been at its commencement and for a considerable time thereafter meretricious, the presumption was it so continued, unless the contrary appeared; and the evidence in the case was insufficient to overcome the presumption.
Blackburn v. Crawford was a somewhat similar case. The connection between the parties was conceded to have been, at its commencement and for many years thereafter, meretricious, and the question was whether a secret marriage had subsequently taken place. The female testified positively to the marriage; but the priest by whom she claimed it was celebrated, had no recollection of it, and there was no evidence of it to be found in the church register. The alleged husband, in his last will and testament, declared the children to be illegitimate, and so stated to the attorney who drew up the will. In support of the marriage, there [632]*632was the positive testimony of the alleged wife, the notorious cohabitation of the parties, the recognition of the children by both parents, and the fact that they were permitted to take the name of the father. On the other hand, the wife admitted the connection to have been for many years meretricious, and there was no record of ¿he marriage, nor did the priest remember to have celebrated it. In addition to these facts, the alleged husband, in his will, declared the children to be illegitimate. Said Mr. Justice Swayne, in delivering the opinion of the Court: “Under such circumstances, the law makes no presumption. The question to be determined was one of fact and not of law.”
There is nothing in either of these cases in conflict with those previously cited. . On the contrary, in Blackburn v. Crawford the will and declarations of the father were received as competent evidence ‘tending to disprove the marriage and the legitimacy of the children; and in Clayton v. Warded, Mr. Justice Harris, in delivering the opinion of the Court, said: “But I am unable to see why it should be necessary to prove the first marriage by eye-witnesses of the ceremony, or those who heard the marriage agreement. In every other case the acts and admissions of a party, even though he be accused of a capital offense, are evidence against him. It is not easy to say why such evidence should not be received to prove a marriage.”
It cannot be denied that in an issue touching the legitimacy of the children, the parents, if living, would be competent witnesses to prove the -marriage, and I think it is equally clear, both on reason and authority, that after the death of the parent his admissions are likewise competent for the same purpose, and if the oral admissions would be competent, written declarations should be entitled to at least as much weight. (1 Greenl. Ev., Sec. 104.)
But it is claimed by counsel that such admissions, if admissible at all, are only so, first, when the facts are not sus[633]*633ceptible of more direct and positive proof; or, second, when they are verbal acts, constituting part of the res gestee. I do not understand the rule to be thus limited. In Blackburn v. Crawford, supra, the declarations and will of the father, though of recent date, were admitted to disprove the marriage.
In the same case, the declarations of a deceased sister of the alleged wife, to the effect that she" was present at the alleged marriage, were offered to be proved. But the Supreme Court held the evidence to be incompetent, on the ground that the sister was in nowise related to the family of the person last seized of the estate, and did not come within the rule which permits the declarations of deceased members of a family to be given in evidence on questions of pedigree. But the Court say: “To prove this relationship, it was competent for them to give in evidence the declarations of any deceased member of that family.”
I am therefore of opinion that the recitals in the will were competent evidence, tending to establish the marriage and the legitimacy of the children. But the Court below held that even though the recitals be competent they did not of themselves constitute sufficient evidence on this point, in the face of the fact that the alleged wife was a competent witness to prove the marriage, but was not called for that purpose. Competent evidence tending to prove the fact in issue is ordinarily sufficient in the absence of all rebutting evidence. But there are cases in which the evidence, though competent and sufficient as far as it goes, yet falls short of proving the whole fact in issue. If it became material to prove that A. or B. had notice of a particular fact it would be competent to prove by A. that he had no notice. But that would not tend to prove that B. had not, and unless the want of notice to B. was proved the point in issue would not [634]*634be established. Such was the case of Williams v. East India Company, 3 East, 192, cited by plaintiff’s counsel. The plaintiff in the action was the owner of a vessel on which the defendant had caused to be shipped a quantity of combustible material, which took fire and damaged the. vessel. The plaintiff alleged that no notice was given to the officers of the vessel of the combustible nature of the material. -This was the point in issue; and it appeared at the trial that the first mate, who received the goods on board, was dead; but that the person who delivered them on board was living, and his testimony might have been had. The Court held that the burden of proof was on the plaintiff to show the want of notice; and he accordingly called the master and second mate, who testified that they had no notice; but he omitted to call the person who delivered the goods on board, to prove that the first mate had no notice. On these facts the Court properly nonsuited the plaintiff, on whom it was incumbent to prove that neither the master or either of the mates had notice. He proved that the master and second mate were not notified, but there was no proof as to the first mate. The testimony was competent and sufficient as far as it went, but it did not go far enough. It was wholly silent as to a material element in the question of notice, to wit: notice to the first mate. There is no analogy between the principle settled in that case, and the question involved in this: if Pearson’s will was competent and tended to prove anything touching the marriage, it tended to prove the whole point in issue, and not only one branch of it. The question of the marriage was a unit, and not divisible into several parts, as was the question of notice in the case cited. If the will tended to prove "anything on that subject it tended to prove all that was involved in that issue.
■ It might, and doubtless would have been more satisfactory if the defendants had called witnesses to prove the marriage, or had established it in some of the more usual methods. [635]*635But as the will was competent evidence tending to prove the fact and was admitted without objection, it ought not to be disregarded merely because fuller proof might have been made. If the rule were otherwise, a party could never safely rest on competent and uncontradicted evidence, tending to prove the fact in issue, if it appeared he might have made fuller proof.
It is urged, however, by the defendants, that the plaintiff is estopped, by the decree of distribution, from claiming any portion of the estate. But the Court below properly held the decree to be void as to the plaintiff, for want of jurisdiction over her person. Section one hundred and fifty-seven of the Probate Act requires that the order to show cause “ shall be personally served on all persons interested in the estate, at least ten days before the time appointed for hearing the petition, or shall be published at least four successive weeks in some newspaper, as the Court or Judge shall order; provided, however, that if all persons interested in the estate shall signify, in writing, their assent to such sale, the notice may be dispensed with.” By section two hundred and sixty, the foregoing provision is made applicable to proceedings for distribution. There were, then, three methods by which jurisdiction might be acquired: first, by a personal service on all persons interested in the estate; second, by publication for four successive weeks; third, by the assent, in writing, to the distribution, by all persons interested in the estate. It appears on the face of the decree that on the eighth of May the Court made an order directing all persons interested in the estate to appear on the fourth day of the following June, to show cause why an order distributing the estate should not be made; and also directing that notice be given by publication in a specified newspaper for four successive weeks. It appears on the face of the order that so much of it as related to the publication was impracticable. Between the eighth of May and [636]*636the fourth of June it was impossible to publish the notice for four successive weeks. The attempt to give notice by publication was therefore nugatory; and it does not appear that service was made or attempted, in any other method. Nor did the plaintiff, in any manner, appear in the proceeding. The decree, it is true, recites the appearance of Goad, who is represented as the “attorney appointed.to represent the minor heirs of said estate.” It appears by stipulation that when the will .was admitted to probate, Goad was appointed “to represent the minor heirs named in said will only,” and that on the settlement of the executor’s account Goad appeared as the “guardian of the minors named in the will interested in said estate, except the, plaintiff.” There is nothing to show that he was the guardian of the plaintiff, or was ever appointed to represent her. Under these circumstances the recital in the decree of the appearance of Goad, the “ attorney appointed to represent the minor heirs of said estate,” must be construed as an appearance by him only for the minors whom he had been appointed to represent, and not for the plaintiff, for whom he had no authority to appear.
The decree recites the method adopted to acquire jurisdiction over the persons of those interested in the estate; and it affirmatively appears in the body of the decree that this method was ineffectual. When the record discloses what was done to acquire jurisdiction, “it will not be presumed that something different was done.” (Hahn v. Kelly, 34 Cal. 407.) The Court therefore never acquired jurisdiction over the person of the plaintiff; and as to her the decree is void.
Judgment reversed and cause remanded for a new trial.