
    [No. 11774.
    In Bank.
    February 23, 1887.]
    In the Matter of the Estate of ANDRE BRISWALTER, Deceased. CELEDONIA GUIRADO De BRISWALTER, Appellant, v. I. W. HELLMAN et al., Respondents.
    Estate of Decedent—Probate of Will — Contest—Issue as to Marriage — Instructions. — On the trial of a contest to the probate of a will, made by the alleged surviving wife of the testator, and in which issue is raised as to the fact of her marriage with the deceased, an erroneous instruction as to what constituted legal marriage at the time when that relation is alleged to have existed between them will not warrant a reversal, if the evidence conclusively shows that no marriage ever existed.
    
      Appeal from an order of the Superior Court of Los Angeles County admitting a will to probate, and from an order refusing a new trial.
    The facts are stated in the opinion of the court.
    
      Wells, Van Dyke & Lee, and Wicks & Bentley, for Appellant.
    
      Glassell, Smith & Lee, and Bicknell & White, for Respondents.
   McFarland, J.

Andre Briswalter died April 20,1885, leaving a will in which the respondents, Heilman, Hammel, and Denker, were named as executors, who petitioned to have it admitted to probate, and for letters testamentary. The appellant, calling herself Celedonia G-uirado de Briswalter, and claiming to be the surviving wife of said Andre Briswalter, deceased, filed written grounds of opposition to the probate of said will. Respondents then filed an answer and petition, in which they denied that appellant was the surviving wife of the deceased, or had any interest in his estate, and objected to her right to make a contest of the probate of said will, and prayed that said contest be dismissed.

The other respondents, Louis and Christina Mesmer, two of the beneficiaries under the will, also filed similar objections to the hearing of the contest. The appellant filled an answer averring specifically that she was such wife. The issue thus made was submitted by the court to a jury, who found that the appellant was not the surviving wife of said deceased. Appellant moved to set aside the verdict, and for a new trial of said issue, and her motion having been denied, she appeals from the order denying the new trial, and also from the judgment and order of the court dismissing' said contest and admitting said will to probate. ,

The only ground for reversal contended for by appellant which we deem it necessary to particularly notice is the alleged error of the court in instructing the jury what constituted legal marriage at the time when that relation is claimed to have existed between appellant and the deceased. It was admitted by appellant that there never was any ceremony between deceased and herself before any officer or person authorized to solemnize marriages; but she testified that, commencing in the year 1861 and ending in 1864, there were such facts of intimacy and cohabitation and mutual assumption of the marital relation by and between them as constituted in law a marriage. Now the court instructed the jury, substantially, that prior to January, 1873, there could be no legal marriage in this state without the ceremony and solemnization required by the statutes then in existence; and that although without direct evidence of such solemnization, it might, under some circumstances, be presumed, from the existence of other facts, yet that such presumption would be overcome by the admission or clear proof that the conditions necessary to a legal marriage. never were in fact complied with. But whether or not this instruction was erroneous,—and we do not decide that it was erroneous,—the evidence, admissions, and proven facts in this case show clearly that the relation between the appellant and the deceased was not marriage under the most liberal construction of the law upon that subject. If the instruction objected to had not been given at all, the jury would have been bound to find as they did; and if they had found for appellant, their verdict should have been set aside as against the evidence. The proof is overwhelmingly to the point that appellant and the deceased never publicly assumed the marriage relation toward each other; that they never lived as husband and wife “in the face of their neighbors”; that she did not take and was not known by his name; and that the relation between them was generally recognized as meretricious. Her own acts show that she did not consider the relation that of marriage; because after she quit living with the deceased, and ten years before his death, upon a marriage license regularly issued by the county clerk of Los Angeles County, in which she was named “Celedonia Wilburn,” she was solemnly married by a justice of the peace to one Andres Souer, with whom she has lived ever since'as his "wife. Under these circumstances, there is no need of a critical examination of abstract questions about the law of marriage.. If we deegaed the instruction to the jury erroneous, we would not reverse the judgment; because under any instructions upon the subject which we could hold to be correct, the verdict should have been for respondents. (Green v. Orphir Co., 45 Cal. 527.)

With these views of the case, it is unnecessary to note minor points made by counsel, further than to say that we see no material errors in the ruling of the court below.

•Judgment and orders affirmed.

Thornton, J., Temple, J., Sharpstein, J., Paterson, J., McKinstry, J., and Morrison, C. J., concurred.

Rehearing denied.  