Monday, February 14, 2005

Hopkins Family

From: caliron@cwnet.com

The photo album of the Hopkins Family has left the family hands, and is, as this is written, in NewCastle. I note with interest the name and picture of Edward Witting Hopkins, with the notation "December, 1872, Initial Stock Holder, S.P.R.R."  Does any one have a family tree of the Hopkins family, or know the relation of Edward W. Hopkins to Mark Hopkins?
Thanks, G J Chris Graves, NewCastle, Cal.

25 Comments:

Blogger CPRR Discussion Group said...

Dueling Hopkins genealogies:
http://dgmweb.net/genealogy/7/NRoots/Misc/MarkHopkinsDiscussion.htm
http://dgmweb.net/genealogy/FGS/H/HopkinsMark-MaryFrancesSherwood.shtml
http://homepages.rootsweb.com/~ahopkins/mark.htm
http://www.maritimeheritage.org/vips/hopkins.html

2/14/2005 12:51 PM  
Blogger CPRR Discussion Group said...

From: wendellhuffman@hotmail.com

I do. At home.
My great great grandfather was one of Mark's distant cousins.
Mark Hopkins really is "uncle Mark" to me.

Wendell

2/14/2005 12:54 PM  
Blogger CPRR Discussion Group said...

Some time ago, the CPRR Museum received a communication about the Hopkins Heirs controversy.

2/14/2005 1:11 PM  
Blogger CPRR Discussion Group said...

From: wendellhuffman@hotmail.com

Edward Whiting Hopkins (b.26 April 1848), was the son of Samuel Frederick Hopkins (1803-1884), the brother of Mark Hopkins of the railroad. The "Whiting" comes from their grandmothers: their paternal grandmother was Anna Whiting, their maternal grandmother was Mary Whiting. They were sisters; Mark's father Mark Hopkins (1779-1828) and mother Anastasia Kellogg were cousins.

In short, Edward was the nephew of Mark Hopkins of the railroad.

W.

2/14/2005 1:45 PM  
Blogger CPRR Discussion Group said...

From: wendellhuffman@hotmail.com

Estelle Latta's "Controversial Mark Hopkins" is a delight to read. The thing that bothered me in reading it was she never produced a census reccord (or any other document) which showed both of the two Mark Hopkins she claimed existed simultaneoulsy.

If Latta ever read the Hopkins letters preserved in the Huntington correspondence, she hid the fact. Most likely she never read them. I believe the letters clearly establish that the Mark Hopkins from New York was partner of Collis P. Huntington in the hardward store as well as in the railroad. Mark Hopkins' handwriting is very distinct (and legible) and consistent. While most of the letters pertain to railroad matters--consistent with one making significant decisions (particularly in the matter of acquisition of the WP)--there are several (in the early period) which deal with hardward store business, and a significant handful which mention family (brother Moses) and how he came to California.

I don't think there is anything in the "Controversial Mark Hopkins" to take seriously. Should anyone think the controversy significant enough to take seriously, I don't think there would be much difficulty in demolishing Latta's claims.

Wendell

2/14/2005 3:29 PM  
Blogger CPRR Discussion Group said...

From: "chris graves" caliron@cwnet.com

Solved the challenge with regard to Mark Hopkins.  The fellow in question was his nephew, Treasurer of the SPRR;  the lady that sold all the 1850 - 1930  photos needed the money, I guess.  One of her gggfathers was a Civil War general, there is a pic of him on tin in full uniform
Darn, the stuff we toss out.   chris

2/14/2005 10:16 PM  
Anonymous Michael Arkin said...

Mark Hopkins' brother, Samuel Hopkins had a son, EW Hopkins as was posted earlier. Sam, by the way, operated the Hopkins land investment business. He was pretty good at that, often quadrupling the family fortunes in California landholdings. Sam's son, EW, was a San Franciso socialite.As far as I know, his main occupation was living very well, building a private 150' yacht, and possessing other wonderful rich boy toys. EW married NaNa (forgot her name)and was Georgina Hopkins' father [or possibly grandfather, I am a little unsure here ]. Georgi's mother, who was married four times (her husbands kept dying on her, including EW), married EW [or EWs son]. Well, anyway or whatever, Georgi married a WWII fighter pilot from Stubenville Ohio who decided to do the V.A. College Bill at UC Berekely, and they had two daughters, Candace and Gay Callan. Georgi's husband was Ed Callan, still alive and doing well. He made his fortune in the securities business and for a time was the most eligible bachelor in San Francisco. Their daughter, Gay, also married three times. She eventually founded a vineyard and winery. In the meantime, she has a total of four children (three Arkin boys and a Callan girl) and her sister,Candace, also has a son, Hal. So, the moral to this story is: "If your brother works hard and creates a big enough empire, then dying childless, your descendants will eventually beget a basketball team." Hope this helps you find your cousins.

11/27/2005 8:19 PM  
Blogger CPRR Discussion Group said...

From: "Linda Mangene" lmangene@rcn.com
Subject: Mark Hopkins estate

Where can I find the legal documents, including bible records, that were submitted to the defense of the Mark Hopkins estate? I am working on genealogy and there were many family and bible records submitted from the southern states of those families trying to claim relationship to Mark Hopkins. ...

—Linda Mangene

3/25/2006 10:51 AM  
Blogger CPRR Discussion Group said...

From: "Wendell Huffman" wendellhuffman@hotmail.com

Good question Linda, but I don't know the answer.

I imagine any litigation on the matter was held in San Francisco, but I do not know the level of the court. I would certainly check with Stanford University; many of the items in their special collection relating to the railroad came from the library of adopted son Timothy Hopkins (who incidentally did a genealogy of the Hopkins family and should have known Mark's immediate family). Understand that many papers of importance were burned in San Francisco during the great fire of 1906.

When you mention "southern" families I immediately think of the "Controversial Mark Hopkins" by Estelle Latta. That book is based on the premise that there were two individuals involved with the CPRR who were named Mark Hopkins, one a partner with Huntington in the hardware store and in the railroad, and one a company treasurer. The latter she says was from New York, had a brother Ezra Augustus, and went to California on the "Pacific" with E.H. Miller (Latta p.75). The one who was a full partner with Huntington – according to Latta – was from North Carolina. Actually, she even introduces a third Mark Hopkins in the course of her account (p.127).

I have never made the "controversy" of Mark Hopkins a serious study, but I did read the book once. However, later in reading the Hopkins letters in Huntington's correspondence I became convinced that Huntington's partner was indeed from New York and not North Carolina. My reasons are as follows:

The handwriting of all the Hopkins letters are beautifully legible (expecially compared to Huntington's scrawl) and consistent. It is clear that these letters are from Huntington's partner in both the hardware store and the railroad. And because of the consistincy in handwriting, it is clear that there is correspondence from only one Mark Hopkins.

That the Hopkins who wrote these letters was Huntington's partner of many years is demonstrated by the letter of 15 Feb 1867 which discusses the disposition of the hardware store.

And then there is the letter of 15 August 1867. Page 1Page 2Page 3. It is most interesting – especially in light of Latta claim that the "other" Hopkins (the one that was not Huntington's partner) was from New York and went to California on the "Pacific" with Miller. This letter is a copy (in Hopkins' hand) of a letter he had written to one William Crain in response to Crain's invitation to Huntington to a reunion of passengers of the "Humboldt" (which ship carried Huntington to San Francisco). In that response the author (Mark Hopkins) evinces considerable familiarity with Huntington (as would a partner of some years. Indeed, it is an indication that author Hopkins opened and answered Huntington's parsonal mail!). Furthermore, this Hopkins added a footnote to Huntington stating that he had himself gone to California with Miller on the "Pacific." Contrary to Latta's claim, this letter is strong evidence that Huntington's partner was the New York Hopkins – and not a mysterious Hopkins from North Carolina. I have included a full scan of this interesting letter.

In a letter of 19 July 1865, the Mark Hopkins who was Huntington's partner refers to his brother Augustus (who died the following month). This is yet another link between Huntington's partner and the New York Hopkins family, since Augustus was from New York and a brother of the New York Hopkins.

In short, I think Latta's work is a weak attempt to claim Mark Hopkins as her own. The best it does is point to various records and say: this one is from NY, and this one is from NC. Even then, I see nothing that links any California Mark Hopkins record with North Carolina but her own allegation.

Latta produces a land record signed in September 1854 within a few days of Mark Hopkins' wedding in NYC. She states that the land record was signed in San Francisco, but I see nothing to establish the location at which it was signed – or anything for that matter which established it was signed on that date. I am not a handwriting expert, but I am comfortable that the land record was signed by the same Mark Hopkins who wrote the letters to his partner Huntington.

Just now I checked Ancestry.com for Mark Hopkins. I find but one Mark Hopkins in Sacramento census of 1860, when the hardware store was well-established. He was from New York. (There was one M. Hopkins, a couple years older who was born in Vermont). I have found no Hopkins born in North Carolina anywhere in California in 1860.

The same holds true for 1870: the only Mark Hopkins in all of California was born in NY (living in Sacramento in 1870); no Hopkins in California born in North Carolina in 1870.

I would be very happy if you would share any information which you may discover which sheds more light on this issue.

—Wendell Huffman

3/25/2006 6:23 PM  
Blogger CPRR Discussion Group said...

From: "Larry Mullaly" lmullaly@jeffnet.org

[There is] a particularly good website on Mark Hopkins' genealogy.

Doing a Google search on "Mark Hopkins Estate" should help you find additional documentaton.

—Larry Mullaly

3/25/2006 6:28 PM  
Blogger CPRR Discussion Group said...

From: "Wendell Huffman" wendellhuffman@hotmail.com

Prompted by the previous question regarding Mark Hopkins, I began rereading Latta's "Controversial Mark Hopkins." Almost immediately I recognized that I had misunderstood (and accordingly misrepresented) that Latta's North Carolina Mark Hopkins was born in North Carolina. Actually, she says he was born in Virginia (in 1814).

Accordingly I again searched ancestry.com and discovered four Hopkinses born in Virginia in California in 1860 census: Rufus, James, and two Johns. Only Rufus was listed in 1870.

I also notice Latta's statement that Mark and Moses Hopkins "of North Carolina" arrived in San Francisco on "Columbus" on 24 May 1851 according to Alta California newspaper. Her point in making this statement is that arrival after 1849 excluded one from membership in Society of California Pioneers – which thus explains (as is necessary for her case) why there is no record of this North Carolina Mark Hopkins in that society's papers. However, while having looked at hundreds of ship passenger lists as printed in the newspapers (and have copies of dozens of them), I have seen none which identify any passenger's state of orgin. In other words, Latta is wanting us to accept that these were the NC Hopkins without any such evidence. I do not have that particular passenger list in my files, but I see no reason that the Mark and Moses listed were of the New York family. We know that Mark reached Califonria in 1849, but these folks – especially merchants – went back and forth with remarkable frequency. Later he returned to NY to marry.

—Wendell

3/26/2006 10:17 AM  
Blogger CPRR Discussion Group said...

From: "Wendell Huffman" wendellhuffman@hotmail.com

Wells Fargo Bank v. Kincaid (1968) 260 CA2d 120

[Civ. 24097

First Dist, Div Four

Mar., 15, 1968]

WELLS FARGO BANK, Plaintiff, Cross-defendants and Respondent, v. HELEN KINCAID et al., Defendants, Cross-defendants and Respondents; ESTELLE LATTA, Defendant, Cross-complainant and Appellant.

COUNSEL

Brobeck, Phleger & Harrison and E. Judge Elderkin for Plaintiff, Cross-defendant and Respondent.

Sullivan, Roche, Johnson & Farraher, Vincent J. Mullins and Gerald J. O'Connor for Defendants, Cross-defendants and Respondents.

Peter A. Huppert and Leon H. Sorell for Defendant, Cross-complainant and Appellant.

OPINION

DEVINE, P. J.

Wells Fargo Bank, as trustee of an inter vivos trust, has commenced this action for declaratory relief and for instructions. Defendants are Helen H. Kincaid (and Wachovia Bank and Trust Company, her assignee of part of whatever interest she may have) and Estelle Latta. Defendant Latta cross-complained against plaintiff and Helen Kincaid.

Helen Kincaid is the beneficiary under a power of appointment which was exercised by Lydia Hopkins. The trust was created by Lydia Hopkins' mother, Mary K. Hopkins, who was the widow of Timothy Hopkins. Timothy Hopkins acquired the estate from Mark Hopkins. There is no issue (at least for purposes of this appeal) as to the fact that the property presently in trust came to Timothy Hopkins as part of the estate of Mark Hopkins, or as converted assets thereof.

The superior court rendered summary judgment against appellant Latta, who laid claim to the properties of the trust, on the grounds that her cross- complaint is barred by the statute {Page 260 Cal.App.2d 122} of limitations and that she was foreclosed by laches and by estoppel.

This is the claim of Estelle Latta, in substance: Mark Hopkins, the noted railroad magnate and financier, hereafter called the "real Mark Hopkins," never married and died intestate in San Francisco in 1878. His estate never has been administered, according to appellant. Estelle Latta is an heir of a brother of the real Mark Hopkins. The brother was an heir of the intestate capitalist. She and others claiming with her are entitled to the property which is the subject of this lawsuit. What happened to deprive her and her coheirs of their patrimony was that a second Mark Hopkins, an imposter, who was unrelated to the real Mark Hopkins, was allegedly married to Mary Frances Sherwood Hopkins. Upon the death of the real Mark Hopkins, this woman caused distribution of a large amount of the estate of the real Mark Hopkins to her. Through her it has come ultimately into the subject trust fund.

Appellant asserts in her brief that she had "recently" uncovered the fraudulent scheme by which the alleged wrong described above was perpetrated by distribution of the estate of the real Mark Hopkins in 1883. She asserts that various distributees concealed the fraud. She seeks impressment of a trust.

It is to be observed that in the early stages of the litigation in which appellant sought to upset the distribution of the Mark Hopkins estate, appellant's theory was not that there was an imposter Mark Hopkins, but that the Mark Hopkins was not really married to Mary Frances Sherwood Hopkins, to whom there was distributed, in 1883, the properties which are the source of the trust fund which is the subject of this suit. (See Latta v. Western Inv. Co., 173 F.2d 99, 101.)

Applicability of Summary Judgment Procedure

[1] Appellant misconceives the purport of a motion for summary judgment, saying that the court (presumably, the trial court and perhaps the Court of Appeal, too) "should only determine whether the contentions raise any triable issues of fact which are not barred by the asserted affirmative defenses." (Italics supplied.) This is not the law of summary judgments (as distinguished from procedure relating to pleadings only, such as demurrer or motion for judgment on the pleadings). (Hardware Mut. Ins. Co. v. Valentine, 119 Cal.App.2d 125 [259 P.2d 70].) On motion for summary {Page 260 Cal.App.2d 123} judgment the court goes beyond mere contentions of the parties as expressed in the pleadings, and examines the affidavits containing matters which are within the personal knowledge of the affiants to decide whether the stated facts (which are taken as true) show that a good cause of action exists upon the merits or that there is a good and substantial defense. (Code Civ. Proc., § 437c; Hicks v. Bridges, 152 Cal.App.2d 146 [313 P.2d 15].) [2] The purpose of the summary judgment is to dispose of cases and defenses which are unmeritorious in substance and fact which, by considering the pleadings only, might remain in court to the harm or harassment of parties and to the disadvantage and expense of the public, and in particular of other litigants. Of course, if there is even one triable issue of fact, summary judgment cannot be rendered. (Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553 [122 P.2d 264].) [3] If an action or defense is barred by the statute of limitations as established by affidavits which are not met by sufficient counteraffidavits, summary judgment is proper. (Reiner v. Hermann, 79 Cal.App.2d 543 [180 P.2d 385]; Hayward Union High School Dist. v. Madrid, 234 Cal.App.2d 100, 125-128 [44 Cal.Rptr. 268].) The same is true when the defense is that of res judicata. (Dryer v. Dryer, 231 Cal.App.2d 441, 446 [41 Cal.Rptr. 839], and cases cited therein.)

The Statute of Limitations

[4a] In order to escape the bar of the three-year statute of limitations in cases based on fraud (Code Civ. Proc., § 338, subd. 4), appellant contends that respondents have made no showing that appellant discovered the existence of the particular trust fund which is the subject of the litigation more than three years prior to the filing of the action or of appellant's cross-complaint. Although, as she says, the record is replete with references to her search for facts relating to the original fraud allegedly committed in 1883, there is no indication of her knowledge of the particular assets or of who held them.

The wrong which appellant contends was committed is one which, if done at all, was completed in 1883. It was then that final distribution was made of the assets and, of course, the decree was a judicial determination that what was distributed belonged to the Mark Hopkins whose estate was being administered and closed. The essence of appellant's case is that these assets had not belonged to this Mark Hopkins but somehow {Page 260 Cal.App.2d 124} had gotten into the administration of his estate, while the true owner's estate was not administered at all.

If we assume, for present purposes, that the gigantic fraud was perpetrated successfully over 80 years before the present action was commenced, and if we further assume that the fraud was extrinsic and of such nature that relief could be had upon timely complaint following discovery, nevertheless appellant cannot succeed. Her "new" or "second" theory is itself several years old. In Universal Land Co. v. All Persons, 172 Cal.App.2d 739 [342 P.2d 958], appellant presented the same allegation about the two men bearing the name "Mark Hopkins" (p. 740). Although the pleading in that case did not disclose when the alleged fraud was discovered (p. 744), it was sometime before August 10, 1959, when the opinion was filed, and therefore more than three years before the filing of appellant's cross-complaint in the present action on November 24, 1965, and before the complaint was filed on September 21, 1965.

[5] Statutes of limitations, although commonly phrased in terms restricting only the commencement of actions, apply to causes of action raised by the defendant. (Strong v. Strong, 22 Cal.2d 540, 544 [140 P.2d 386].)

[4b] We do not accept appellant's proposition that the statute commences to run only when she learns that particular assets have derived ultimately from the estate of Mark Hopkins. In the case before us, the trustee, having notice of appellant's claims, has sought declaratory judgment by way of protection. This does not start anew the period for attacking the alleged ancient fraud. What steps appellant did take, or might have taken upon discovery of what she alleges to have discovered "recently," we need not speculate upon. fn. * The fact is that she knew whatever she alleges now, more than three years ago. Her cross-complaint is barred.

We need not undertake a comparison of the other litigation which respondents contend establishes a res judicata or collateral estoppel.

The summary judgment is affirmed.

Rattigan, J., and Christian, J., concurred.

FN ** Lydia Hopkins, the last surviving possessor of assets of the estate to be charged in the cross- complaint with concealment of the alleged fraud, died on January 8, 1965.

3/28/2006 11:17 AM  
Blogger CPRR Discussion Group said...

From: "Wendell Huffman" wendellhuffman@hotmail.com

Universal Land Co. v. All Persons (1959) 172 CA2d 739

[Civ. 18579

First Dist, Div One

Aug., 10, 1959]

UNIVERSAL LAND COMPANY (a Corporation), Respondent, v. ALL PERSONS, Defendants; ESTELLE LATTA et al., Appellants.

COUNSEL

Royal E. Handlos for Respondent.

Busick & Busick for Appellants.

OPINION

BRAY, P. J.

Defendant Estelle Latta, purporting to act for herself and others, appeals from a judgment entered after an order sustaining demurrer by plaintiff to defendant's answer without leave to amend.

Question Presented

Propriety of the sustaining of demurrer to answer without leave to amend.

Record

Under the Destroyed Land Records Relief Law (pt. 2, tit. 10, ch. 3.5, Code Civ. Proc., Stats. 1953, ch. 52, § 6) plaintiff filed an action against all persons to establish title to real property. Defendant Estelle Latta filed an answer stating that she is one of the persons claiming "an interest in, or lien upon" the real property described in the complaint; that she is a direct descendant of a brother of Mark Hopkins; that she appears for herself and "all other heirs of Mark Hopkins similarly situated," whose names are set forth in her answer; that the other heirs are so numerous it is impractical to bring them all before the court; that the questions involved are of a common interest to all said heirs. The gravamen of her answer is that there were two Mark Hopkins, not related to each other. One came from North Carolina to Placerville in 1851. The other came from New York to Sacramento in 1849. The New York Mark Hopkins married Mary Frances Sherwood. In 1876 the New York Mark Hopkins died, leaving as his survivors his wife and their son Timothy. Thereafter Mary obtained a position as the housekeeper of the North Carolina Mark Hopkins. He died March 29, 1878, a resident of San Francisco, leaving surviving no wife, father, mother, or issue; but he left surviving as his heirs at law his eight brothers and sisters, one of whose descendants is defendant Estelle Latta. Their names are set forth. Mary is charged with fraud in obtaining letters of administration of his estate, in claiming to be his wife and failing to notify the county clerk of the names and addresses of said heirs which she well knew. Later {Page 172 Cal.App.2d 741} the North Carolina Mark Hopkins' brother Moses succeeded Mary as administrator of the estate. He likewise is charged with fraud in failing to reveal the names and addresses of his brothers and sisters and in instances in the 80's writing one of them to the effect that Mark was survived by a wife and children, and in another instance stating that Mark had left Moses all of his estate. It is charged that the decree of distribution in the Mark Hopkins estate is void because of the alleged fraud of Mary and Moses and the failure to notify the heirs of the probate proceedings including the obtaining of the two sets of letters of administration and the decree of final distribution in 1883 distributing the entire estate, three-quarters to Mary and one-quarter to Moses.

Defendant Estelle Latta prayed that she and the heirs of Mark listed in her answer be adjudged to be the owners of the described real property.

Plaintiff filed a general and special demurrer and among other grounds set forth laches and certain statutes of limitation. It further alleged that the questions raised by the answer had been determined adversely to defendant and the persons on whose behalf the answer was filed by the final judgments in Freeman v. Hopkins, 32 F.2d 756, and in Latta v. Western Inv. Co., 173 F.2d 99. The court sustained the demurrer to defendant's answer without leave to amend.

Demurrer Was Properly Sustained

[1] In the first place, there is no allegation that the plaintiff took title with knowledge of the alleged fraud or of any circumstances to put plaintiff on notice. This is a requisite in a fraud action. As said in Newport v. Hatton (1924), 195 Cal. 132, 149 [231 P. 987], dealing with a judgment obtained through extrinsic fraud: "Appellants concede that any person acquiring title to any part of the property in good faith, and without knowledge of the fraud, is fully protected, notwithstanding the interests of the plaintiffs. Their rights cannot prevail over those of innocent purchasers in good faith and for value. That much is not disputed." See also Newport v. Hatton (1929), 207 Cal. 515, 520 [279 P. 134]; Ferguson v. Ferguson (1943), 58 Cal.App.2d 811, 814 [137 P.2d 735]; Wool v. Scott (1956), 140 Cal.App.2d 835, 843 [296 P.2d 17]; Marlenee v. Brown (1943), 21 Cal.2d 668, 678 [134 P.2d 770]. As said in the Ferguson case, supra, at page 814: "It is clear that if respondents were purchasers for value and without notice, taking their title through the decree of distribution {Page 172 Cal.App.2d 742} which constitutes a muniment of title immune to collateral attack, they cannot be charged as trustees and they hold the property free from any equity in plaintiffs. [Citations.]"

Secondly, the answer shows that the alleged defense is barred by section 319, Code of Civil Procedure, and by laches on its face. The extrinsic fraud (and only by extrinsic fraud could the decree of distribution which long since became final be attacked) consists in the failure of Mary and Moses in their then respective petitions for letters of administration to list the names and addresses of Mark Hopkins' brothers and sisters, the failure to send out notices of the application for the decree of distribution, the failure of Mary and Moses to disclose the pendency of the estate to Mark's sisters and other brothers (it appears in the answer that one of the brothers, Samuel, was aware of the proceedings), plus the alleged misrepresentations of Moses in the early 80's (whether during or after the probate proceedings were concluded does not appear).

Assuming that extrinsic fraud was thereby alleged fn. * the {Page 172 Cal.App.2d 743} answer is barred by section 319, Code of Civil Procedure, and by laches. In Latta v. Western Inv. Co., supra, 173 F.2d 99, 107, defendant Estelle Latta brought an action to declare the decree of distribution in the Mark Hopkins estate void on the identical grounds urged here. In holding that her complaint was barred by the provisions of section 338, Code of Civil Procedure, the court said (p. 107): "The alleged fraud was completed upon the granting of the decree of distribution in 1883, and as heretofore pointed out, the appellants have had actual knowledge of the alleged fraud herein complained for over twenty years. Time, death and destruction by fire have blotted out the events of that period beyond the restoration of the living. It is not only a closed chapter but a sealed chapter in the lives of those involved. The burned records cannot be restored. The dead cannot be resurrected. The fortune accumulated by Mark Hopkins long ago passed through and into many hands, far removed from the generation in which he lived. To attempt to disentangle this estate would be unjust and inequitable. Equity frowns upon stale demands. Equity declines to aid those who have slept on their rights. The appellants' alleged claims long ago were lost by reason of gross laches." We adopt that language in applying the bar of section 319 to defendant's answer here. (Defendant contends that she is not seeking to have the decree of distribution declared void as she was trying to do in the above mentioned case, but to have her title and that of the others to the real property adjudged.) But the answer contains no allegations that defendant or the ancestor or predecessor defendant was seised or possessed of the property within five years as required by section 319, Code of Civil Procedure. As said in Fugl v. Witts, 97 Cal.App.2d 495, 496 [218 P.2d 102]: "Since defendant was not seised or possessed of the premises in question within five years before the commencement of the action, he neither had (1) a cause of action entitling him to have title quieted in him to the property, nor (2) a defense to plaintiff's cause of action to have the title to the property quieted in plaintiff. (Code Civ. Proc., § 319.)" It should be noted that section 319 provides: "No cause of action, or defense to an action, arising out of the title to real property ... can be effectual, unless it appear that the person prosecuting the action, or making the defense, ... or the ancestor, predecessor or grantor of such person was seised or possessed of the premises in question within five years ..." (Emphasis added.) {Page 172 Cal.App.2d 744}

The answer contains no allegation of when the alleged fraud was discovered by defendant nor that she acted promptly and with diligence to protect any rights she might have had. For the necessity of such allegations in this type of case see Del Campo v. Camarillo, 154 Cal. 647 [98 P. 1049]; 18 Cal.Jur.2d p. 228, § 53; 23 Cal.L.Rev. 79. In view of the fact that almost 75 years had passed since the entry of the decree of distribution, all the original participants are dead, the records were destroyed in the 1906 fire, the fact that in 1929 one Freeman, in Freeman v. Hopkins, supra, 32 F.2d 756, claiming to be an heir of Mark Hopkins and purporting to act on behalf of about 450 other alleged heirs, brought suit claiming that certain securities belonging to Mark Hopkins had been falsely concealed and not included in the assets of the estate on distribution, and pointing out that none of the brothers and sisters of Mark, except Moses, had been named in the decree of distribution, and that defendant herself in 1948 (approximately 10 years before filing this suit) had brought suit (Latta v. Western Inv. Co., supra, 173 F.2d 99) setting up the very grounds of fraud alleged here and alleging, according to the opinion in that case, that the alleged fraud was discovered in 1945, and that defendant in nowise attempts to excuse the laches in not bringing this action sooner, the fact that the properties of the Mark Hopkins estate have been in the hands of many purchasers, none of whom are claimed not to be bona fide purchasers for value without notice,--all of these show that in sustaining the demurrer without leave to amend the court not only did not abuse its discretion but would have abused its discretion had it not done so.

[2] Defendant's main contention is that even though if she were bringing an action to quiet title on the grounds of fraud alleged in her answer the cause of action might be barred by laches and section 319, Code of Civil Procedure, these bars cannot be applied to the matters set forth in her answer in which she merely asks that she and the other alleged heirs be adjudged to own the real property originally belonging to Mark Hopkins. The cases she cites in support of this contention are not in point for two reasons: (1) they only apply to answers which do not seek affirmative relief, and here defendant asks that she and the others be adjudged owners of the real property, and (2) they do not apply to {Page 172 Cal.App.2d 745} cases where the plaintiff is not a party to the alleged fraud nor has knowledge of it.

1. In Islais etc. Water Co. v. Allen (1901), 132 Cal. 432 [64 P. 713], an action to quiet title in which the defendant prayed that he be adjudged the owner of the property described in the complaint, the court held that he was seeking affirmative relief, saying concerning the answer "there were affirmative allegations, which, if sustained by the evidence, entitled the defendant to affirmative relief, and such relief was demanded." (P. 437; emphasis added.) And as pointed out hereinbefore, section 319, Code of Civil Procedure (as well as section 338, subdivision 4, if defendant were seeking to set aside the decree of distribution) bars defendant's alleged cause of affirmative defense. Sullivan v. Compton (1943), 61 Cal.App.2d 500 [143 P.2d 357], where the answer alleged a claim of lien in the property described in the plaintiff's action to quiet title and the court held that the answer did not seek affirmative relief, is not in point as the prayer only asked that the plaintiff take nothing by his complaint. The court distinguished that case from Islais etc. Water Co. v. Allen, supra, 132 Cal. 432, by pointing out that the answer there, as does the answer in our case, specifically prayed for a decree determining that the defendant was the owner of the property. In Hungarian Hill G. M. Co. v. Moses, 58 Cal. 168, likewise, the answer prayed merely that the plaintiff take nothing by its complaint.

2. The cases relied upon by defendant were all cases in which not only were the defendants not seeking affirmative relief, but also the plaintiffs were either charged with the fraud or having obtained their title with knowledge of it. Thus, in McColgan v. Muirland (1905), 2 Cal.App. 6 [82 P. 1113], an action to recover on a judgment, the action was brought by the very person (and his assignee of an interest) whom the defendant charged with procuring the judgment by fraud, and the defendant merely asked that the plaintiffs take nothing by their complaint. In Estate of Cover, 188 Cal. 133 [204 P. 583], the son of the decedent petitioned to have the widow removed as administratrix of the decedent's estate, based upon an agreement executed some 10 years prior by her and the decedent in which she waived all her rights to inherit. She answered claiming that the agreement had been obtained by fraud of the decedent, the son and another. In holding that laches and the statutes of limitation did not apply to her {Page 172 Cal.App.2d 746} defense, the court pointed out that she was not seeking affirmative relief. Again here there was no question of the plaintiff being free from the taint of fraud. In J. B. Colt Co. v. Freitas (1926), 76 Cal.App. 278 [244 P. 916], the action was brought by the company that the defendant charged with fraud in obtaining the promissory note sued upon. The court said (p. 287): "Where fraud is relied upon as a defense merely 'neither the limitation of the statute nor the doctrine of laches will operate to bar the defense of the invalidity of the agreement upon the ground of fraud, for so long as the plaintiff is permitted to come into court seeking to enforce the agreement, the defendant may allege and prove fraud as a defense. In short, it is not incumbent upon one who has thus been defrauded to go into court, and ask relief, but he may abide his time, and when enforcement is sought against him excuse himself from performance by proof of the fraud.' (Estate of Cover, 188 Cal. 133, 140 [204 P. 583, 587].)" In Hart v. Church, 126 Cal. 471 [58 P. 910, 59 P. 296, 77 Am.St.Rep. 195], the court states that a person defending against the enforcement of a fraudulent contract is not barred by the statutes of limitation in excusing himself from performance by proof of the fraud, but, the court points out, "in such a case he incurs the risk of defeat by the intervention of the rights of innocent parties." (P. 479.) Cox v. Schnerr (1916), 172 Cal. 371 [156 P. 509], was an action by a person relying upon a deed which the defendant charged he had procured by fraud. Evans v. Duke (1903), 140 Cal. 22 [73 P. 732], likewise was an action upon a contract which the defendant alleged was obtained through the plaintiff's fraud. The court held that the defendant was barred by laches from asserting affirmative relief but not from merely defending the action on the ground of the fraud. It then quoted from Hart v. Church, supra, 126 Cal. 471, 479, to the effect that in his defense of fraud a defendant " '... incurs the risk of defeat by the intervention of the rights of innocent parties.' " Thus it clearly appears that both the statutes of limitation and laches will apply to an answer which either asks for affirmative relief or seeks to defend against the claims of innocent persons.

Raisch v. Myers (1946), 27 Cal.2d 773 [167 P.2d 198], deals with the situation where the court held that the pleading of the statutes of limitation "should not avail a property owner to the prejudice of a subordinate lien claimant in the {Page 172 Cal.App.2d 747} extinguishment of a valid lien where the status quo is disturbed by foreclosure of a superior lien." (P. 781.) The court said: "In the state of the record as analyzed, equally applicable here are the equitable principles governing cases where the property owner seeks affirmative relief in a quiet title action against an outstanding lien that cannot be foreclosed by reason of the bar of the statute of limitations. In the one as in the other situation, the property is still subject to the lien and the lien claimant will be protected as against a property owner seeking an affirmative advantage without doing equity as the circumstances require." (P. 781.) But there the property owner knows or should know of the existence of the liens as they are of record, and hence he is not an innocent person who in the other situations disclosed by the cases may set up the bars of the statute and laches.

In view of our decision, we deem it unnecessary to discuss the other points urged by plaintiff for affirming the action of the trial court.

The judgment is affirmed.

Wood (Fred B.), J., and Tobriner, J., concurred.

While section 1371, Code of Civil Procedure, at the time of the probate proceedings, provided that the petition for letters of administration should state "the facts essential to give the Court jurisdiction of the case" and the names and addresses of the heirs of the decedent known to the petitioner, it also provided "If the jurisdictional facts existed, but are not fully set forth in the petition, and are afterwards proved in the course of administration, the decree or order of administration and subsequent proceedings are not void on account of such want of jurisdictional averments." At that time the only notice of the petition required to be given by the clerk was a notice by posting. (Code Civ. Proc. § 1373, and Nicholson v. Leatham (1915), 28 Cal.App. 597, 601 [153 P. 965, 155 P. 98].) Notice of the petition for distribution was to be given either by posting or publication as the court might direct (§ 1668.) There is no allegation that the notices required by these sections were not given. In Latta v. Western Inv. Co., supra, 173 F.2d 99, the court seemed to consider the allegations as to withholding the names and addresses of the heirs and the failure by Mary and Moses to notify them of the proceedings, as sufficiently alleging extrinsic fraud. However, in Monk v. Morgan (1920), 49 Cal.App. 154, 162 [192 P. 1042], the court held that an administrator of an estate, either in his capacity as coheir or as administrator, is under no duty to inform his coheirs of the death of the decedent, his appointment as administrator or of any of the proceedings in the estate, other than through the giving of the notices required by law to be given during such administration and which having been duly given constitute constructive notice to the decedent's heirs as to all proceedings had in the course of the administration of the estate. Therefore, the failure to list the heirs in the petition for administration, or to notify the heirs of the death and the estate proceedings, and even misrepresentations by the administrator as to who were the sole heirs of the decedent, did not constitute such extrinsic fraud as would entitle a court to declare the decree of distribution in that estate void. (See also Mulcahey v. Dow (1900), 131 Cal. 73 [63 P. 158].)

3/28/2006 11:18 AM  
Blogger CPRR Discussion Group said...

Also see additional discussion.

9/04/2007 8:52 AM  
Anonymous Mark Kincaid said...

My name is Mark Edward Hopkins Kincaid. As I understand it I am the adopted grandson of Lydia Kelloge Hopkins, the daughter of Timothy Hopkins.
I have a copy of (or the origional) last will and testament of Lydia.
I was raised by Helen Kincaid, a long time emplyee and companion of Lydia.
Lydia died in North Carolina in the mid-60s.
As a child and teen, I was with Helen during her conflicts with Estel Latta.
I would like to communicate with anyone who has addition information about the lawsuits concerning the Hopkins esate.
I can be contacted at griponreality@hotmail.com

9/06/2007 10:35 PM  
Anonymous Anonymous said...

I have a business card of my gggrandfather William Henry Hopkins(1840 NY-1911 IA) who worked for the Chicago & Northwestern RR as a bridge gang foreman. It features a sepia-drawing of a train crossing a stone-arched bridge. He was located in Colo, Story Co., Iowa in the 1880's. I've been looking for the names of his parents for years with no luck. He is not listed in Timothy Hopkin's genealogies.
William Henry Hopkins married Kate Moore in 1864 after his return from the Civil War. 5 kids: only 1 son William B. Hopkins b1865.
Any help would be greatly appreciated. leeashmore2003@yahoo.com

7/27/2009 9:16 AM  
Blogger CPRR Discussion Group said...

From: "Chris Graves" caliron@cwnet.com

The only William Henry Hopkins that I can find was born in Springville, N. Y. in Feb. 1838, enlisted in the Iowa 9th Infantry from Spraqueville, Iowa in July, 1861, mustered out in Georgia in Sept of 1864, and married Kate Moore in Dec. 1864. He died in Odebolt, Iowa Sept, 1911. I am puzzled as to the difference in birth dates. This fellow had a father named Henry. Good Luck!

—gjg

7/27/2009 6:30 PM  
Blogger Lee Ashmore said...

Thanks for your post, Chris, but further research proves that Henry Hopkins and Esther Collar are not the parents of my William Henry Hopkins born (supposedly) in Erie Co., NY in either 1838 according to his tombstone or 1840 according to his Civil War records. His father was born in NY state say 1800 +or- 10-20 years and his mother spoke German. That's all I know so far. The search continues!

10/13/2009 3:56 PM  
Anonymous Anonymous said...

Lee, if I can help in any way, I'd be pleased to! That being said, this is getting 'way beyond what I normally do.......best of luck! chris

10/13/2009 10:01 PM  
Anonymous Anonymous said...

The proof thst the Mark Hopkins from North Carolina was THE Mark Hopkins of the original four has been proven many times over. In fact, many people died inprovong this. The fact that documents were forged and facts were well hidden to make one believe that the REAL Mark Hopkins, was never there. Estelle Latta proved it many times over in court, but no judge would be responsible for ruling in her favor, becasue it would have been a death sentence for them. All the facts are there to prove forgery was at play. The documents even prove that the New York Mark Hopkins was an imposter as One of the four tycoons. Mark Hopkins Estate was stolen and it's been proven. All property to this day still has a clound attached to it, because of Estelle Latta's work and the proof she brought to the table.

7/25/2010 4:54 PM  
Blogger roger russell said...

June Naugle spent ten years researching her book,"The Great American Swindle." She was a friend of Estelle Latta. Her book was published in 2007. My g g grandmother was a sister of Hannah Crow Hopkins. My two g g uncles, Zebedee and Eli Russell married Annie and Prudence Hopkins, Eli married Annie, Mark Hopkins twin.Everyone should read this book before passing judgement.
Wells Fargo must still be paying to
Keep the truth from coming out.

11/27/2013 5:32 PM  
Anonymous Anonymous said...

If June Naugle is your source then according to you "the truth" is already out in a published book, and your comment is illogical. If not, why didn't you say what you meant?

The people who were participants in the greatest engineering project of the 19th century have all long since passed on.

Please don't invent what appears to be libelous speculative commentary about a modern business without providing current evidence. When you make a serious charge, the burden of proof is entirely on you to prove it.

11/27/2013 6:16 PM  
Anonymous Anonymous said...

Does anyone know how or why Lydia Kellog Hopkins ended up dying in Beaufort County, NC, when most of what I read says she was from the San Mateo, CA area? And, do the surnames Harris or Hicks of NC ring any bells as to relating to Lydia? Thanks! email me at hpat936@yahoo.com, please.

4/26/2014 8:37 AM  
Anonymous Anonymous said...

From: AntiquePam@aol.com

I would like to contact any interested family members of Georgina Hopkins Callan.

If they're interested I can send them a few pictures from the time when she and her mother spent time in the Santa Barbara area.

—Pam

6/06/2014 2:06 PM  
Anonymous Anonymous said...

See related.

1/11/2016 7:20 AM  

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