Macario Torres died testate October 30, 1927. He left all his property to Maria A. de Torres, his widow. Julian Sanchez, born June 23, 1921, and Alejandro Sanchez, born June 29, 1924, sons of Elena Sanchez, appearing in this cause as their next friend, sued to establish rights of inheritance. They claimed to be illegitimate sons of the deceased (1929 Comp. St. § 38-114), and that not having been named or provided for in the will, they are entitled to share in the estate as if their putative father had died intestate (1929 Comp. St. § 154-112).
A former appeal of this cause resulted in a reversal for error in sustaining a demurrer to the evidence at the close of the plaintiffs' case. Sanchez v. Torres, 35 N.M. 383, 298 P. 408,409. *Page 558
The cause was reinstated in the district court and came on for hearing before Judge Armijo, sitting for Judge Frenger who had presided at the first trial.
By stipulation, a transcript of the testimony at the first trial was admitted in evidence, excluding only the testimony of Ida Garcia, the local registrar of births, whose testimony was alluded to in the former opinion. The findings are brief:
"First. That at the time complained of by the plaintiffs, the deceased, Macario Torres, was impotent and incapable of becoming the father of the minor children mentioned in the plaintiffs' complaint.
"Second. The court further finds that the testimony in the case, taken as a whole, fails to show that the said Macario Torres generally and notoriously recognized said children as his."
Upon these findings, judgment was rendered dismissing the cause. Plaintiffs have appealed.
The findings alone are challenged on this appeal. Appellants seek a general review of the record, which they contend will disclose a preponderance of evidence for their claims to be the sons of the deceased and to have had from him general and notorious recognition as such. They cite Davidson v. Enfield,35 N.M. 580, 3 P.2d 979, to the proposition that, a part of the testimony having been given otherwise than in the presence of the court, we "will review the whole record and decide upon the weight of the evidence."
The case cited does not go to that length. It in fact expresses doubt of the matter. The leading case is Gallup Electric Light Co. v. Pacific Improvement Co., 16 N.M. 86, 113 P. 848, 850, where, as here, the trial court heard part but not all of the testimony. This rule was laid down: "* * * the decree * * * should not be affirmed, unless it is sustained by substantial evidence which the court heard, unless the additional evidence taken by the examiner shows that the decree was properly made and sustains it by a preponderance of the testimony, and all the evidence should be considered by the court, on appeal, so as to determine whether * * * the evidence sustains the judgment * * *."
The rule, thus stated in a case where the trial court had awarded affirmative relief, cannot be applied literally. It should no doubt be applied in principle, where, as here, relief has been denied. To overcome a negative decree, it will be necessary for appellant to show a preponderance of evidence for every fact essential to recovery. And, applying the principle stated, if the court heard the evidence as to some fact, the substantial evidence rule would apply as to it.
It might seem at first that the trial judge did hear all of the evidence as to impotency. So he did, in so far as it went directly to that point. But, while true, of course, that if the deceased was truly impotent he did not beget, it is just as true that if he begot, he was not impotent. So it is the larger question of parenthood that we are to consider. The trial judge heard the evidence only in part, and we must weigh it. The same *Page 559 situation exists when we reach the question of recognition.
As we said on the former appeal, the case involves "* * * the usual features of direct evidence of paternity furnished by the testimony of the mother, testimony of association between the mother and the putative father, testimony of contribution by the putative father to the support of the mother and children, testimony of common report in Willard, where the affair took place and the children were born, that the deceased was their father, and testimony of direct and express admission on the part of the putative father in private conversation."
Actually we had before us the single question of recognition. The district judge had evidently considered, and we assumed, that plaintiffs had satisfactorily shown their ancestry. We have now reviewed the evidence in this regard. We need say no more than that we adhere to the generalization above quoted. Starting there, we must weigh the evidence and inferences contra.
Many, though by no means all, of the witnesses for the plaintiffs were related to them. This is not of great importance, since there is scarcely any direct contradiction of their testimony and no attempt at general impeachment.
As is usual in cases of this kind, defendants were able to produce a number of witnesses who had been more or less in a position to observe and hear, who had not seen or heard the things that the other witnesses had. Little weight can attach to this negative testimony.
The attempt to show that the mother was generally loose in her association with men was, in our judgment, a failure.
Two or three forged documents were offered in evidence on behalf of the plaintiffs. It is urged that this so taints their case with fraud that we should believe none of it. Certainly the plaintiffs themselves had no part in this. It is not shown that the mother had. Assuming, however, that the latter did yield to a temptation to manufacture this evidence, and that she is thus rendered unworthy of credit, the remaining evidence is so strong in corroboration of the main facts to which she testifies, that the fraud must be attributed to an unfortunate effort to multiply proof, rather than to the falsity of the other facts she relates.
We cannot doubt that, from 1918 to the time of his death, the deceased sustained constant and intimate relations with this widow, to whom, during the period, these children were born; that he practically assumed the burden of their support; that his conduct was entirely consistent with, and highly persuasive of, his own entire conviction that the children were his; and that there is no substantial evidence of any other source of their being.
All this comes to naught, however, and mystery results, if the deceased was incapable of procreation.
The claim of impotency rests upon the testimony of his widow and of two physicians. The former testified simply that about ten years before her husband died (about the time when the deceased commenced to *Page 560 maintain another woman in another home) her sex relations with him ceased. Asked, "Do you know why?" she replied, "On account of sickness, I suppose, and his old age."
Dr. Espinosa testified that the deceased consulted him in 1923, and that he examined and treated him; saying further, in substance, "My first information on physical examination was the history of the case, and he stated to me that he was unable and he was sick, and unable to practice the sexual act. That was the history of the case. He said that condition had existed for some months. I couldn't state how long. Then, upon examination, I found he was very nervous and excitable, worried, and the physical examination also revealed to me that he had the condition which he stated. I think he was a man of 60 or 65; might have been older. He seemed to be weak. I gave him four or five months attention, my treatment having no results. I gave him advice. I put him on a diet and mostly rest, and (told him) to forget about those conditions that existed with him, and forget about his inability to do the sexual act, and rest for a year or so, and that the thing might come back natural. I didn't give him much medical assistance. He visited me once or twice a month. I don't recollect. It might have been he was more cheerful, and built up somewhat, but his main condition it didn't seem to improve."
Dr. Amble testified that he treated the deceased "practically all the time" from 1915 to 1919. "He was complaining about his strength giving away. It related to the sexual parts. I treated him off and on for that condition. He thus expressed his condition: `I am cold, and can't have relations with women.' I treated him for that trouble. I left Estancia in 1921, but he sometimes came to see me in Mountainair. If I was not there he would see someone else, I expect. Up to January, 1921, he was under my treatment for that trouble off and on. Sometimes he would come once every two or three weeks, and then perhaps there would be a longer spell between. He always complained that that treatment wasn't very good, very effective. I don't believe I ought to say whether he was capable of procreating. That is a pretty hard question. At his age, and the condition he was in, he might and he might not. I would give it the benefit of the doubt. I had no way of finding out the contrary of his statement that he could not have relations with women."
Dr. Ottosen, called by plaintiffs, testified to having treated the deceased nearly every year for something, during the last 25 years of his life. Asked as to his strength and vitality during that period, he said: "Well, I would say he was a pretty good man for his age. Generally stepped around well." He said that he claimed to be nervous, but had never complained of being weak sexually. He testified that he would not be able from a physical examination to determine impotency and that he considered that "it would be impossible to determine that from outward appearances."
This medical testimony is not, in our judgment, of sufficient weight to overcome the other evidence as to paternity. It is necessarily based on statements of the deceased of a somewhat equivocal character. The one expert *Page 561 was not asked, and the other declined to give, an opinion. We are unable to agree that the defense has shown the deceased to have been impotent to an extent or at times to render it impossible for him to have been the father of the plaintiffs, and we feel constrained to hold, on the weight of the evidence, that he was their father.
The question of recognition, also, may be taken up where we left it on the former appeal. We were then satisfied with the proofs. Wherein has the case been weakened by counter showing?
It is true that all of those who testified to express admissions of paternity, and most of those who testified to special conduct amounting to an admission, are relatives of plaintiffs. That is natural, since it is they who were most interested in the matter, and they who came into association with the deceased in the home. Naturally he would not broach the matter to uninterested parties, nor they to him. His open, notorious conduct, continuous during a period of nine years or more, uninterrupted by the birth of either of the plaintiffs, and ceasing only with his final illness, is evidence, not only of paternity, but of recognition; a willingness that all who observed should draw the natural conclusion from what he took no pains to conceal.
He did, no doubt, try to conceal the facts from his wife, but, according to the Kansas and Iowa decisions, we do not consider that as seriously damaging to the contention that the recognition was general and notorious.
One of the forgeries was a direct admission of paternity. It was a postscript to an authentic letter from the deceased to Mrs. Sanchez, translated: "I am anxious about my sons. Burn this letter." While this bit of evidence is of course to be rejected, the loss of it, as well as the affirmative fact of fraud, we consider as having a negligible bearing upon the case, for the reasons stated in discussing the forgeries in connection with the first point.
But if the matter be deemed doubtful so far, reasonable doubt ends if in March, 1927, the deceased directed or consented to the insertion of his name as father in the birth certificates of the plaintiffs. If it be considered that up to this time his policy had been one of general concealment, and only special recognition, by this act he abandoned it. The act is clearly calculated to give general notoriety, in the sense that any person having a legitimate reason to inquire is afforded a source of official, and apparently authentic, information. The fact is made matter of permanent record, which, in time at least, would become the only available evidence.
The mere fact that the State Board of Health may so regulate access to these records as to prevent improper use of the information, if known to the deceased, scarcely detracts from the effect of what he did. General and notorious recognition does not, we take it, require that the idly curious be gratuitously informed or furnished the means of information. As we said in the earlier opinion, "We cannot think of any act better calculated to give general and notorious recognition."
The witness Ida Garcia, subregistrar of births, testified that she interviewed the *Page 562 deceased before making out the certificates and that she inserted his name with his consent and in his presence. Her husband corroborates her, saying that he was present.
There is nothing to detract from this except that Ida Garcia is the sister of Mrs. Sanchez; that she inserted the age of the deceased as 55 instead of 73; that she recorded his birth place as Punta instead of Tome, and used the letter "F" in designating "sex of child."
The last-mentioned error must have been inadvertent, as Mrs. Garcia knew the child's sex. From the other two it is easy to argue that the whole story was manufactured for the particular purpose. It may be argued with equal force that these errors are badges of good faith. If Mrs. Garcia had been engaged in perpetrating a fraud, she would have taken extra care to avoid telltale errors. They are as well, and perhaps better, explainable as mere mistakes. They have no connection with the main fact. As to that there can be no mistake. Either it is true, or both Mrs. Garcia and her husband are unmitigated perjurers. There is no sufficient reason for taking the latter view, and so we must take the former.
We thus conclude that the evidence preponderates in favor of the plaintiffs upon each of the essential ultimate facts. The judgment must accordingly be reversed. The cause will be remanded with a direction to the district court to render judgment for appellants. It is so ordered.
BICKLEY and ZINN, JJ., concur.