said account. There was a sharp conflict of evidence on these points. But the pipe was then delivered at Fowler, the draft, so far as Smith-Booth-Usher Co. was concerned, had been paid by the bank at Weber's request, and the matter was then in the shape of an item on the "Teller's Cash Ledger," of the bank. There was no occasion for any special discussion regarding that item. It was not denied by anyone that Weber was to have the equivalent of fourteen thousand dollars for the completed plant, including the pipe, nor that he got it only in the manner we have stated. It is suggested, rather than claimed, by the plaintiff that compensation to Weber for the pipe included in the transfer of the plant to the plaintiff was covered by the payment of the five thousand five hundred dollar note charged against the plaintiff's deposit. If there is evidence of this fact, the plaintiff will be at liberty to produce it upon a new trial. There is none in the record before us.

It is unnecessary to consider in detail the many adverse rulings made by the court during the progress of the trial. The issues presented the question whether the charge of the amount of this draft against the account of the plaintiff was authorized. This opened a wide field of inquiry and justified the introduction of evidence of any transactions between Weber and the Gas Company tending to show that the Gas Company assumed the payment of the debt and provided for its payment in the manner above stated. The action of the court in preventing the introduction of the evidence except in the limited manner above stated was erroneous. [2] For the guidance of the court upon a new trial we will say further that it is not true that the minutes of the board of directors of the plaintiff constituted the only evidence admissible for the purpose of showing authority for the payment of this sum by the bank out of the plaintiff's funds. [3] If a corporation allows its officers to conduct its business and third persons act upon the apparent authority thus shown, it cannot defeat the rights of such persons arising from transactions done and completed under such ostensible authority by failing to enter upon its minutes any order giving its officers authority to act. (Fresno St. R. Co. v. Southern Pac. R. Co., 135 Cal. 208, [67 Pac. 773]; Blood v. La Serena L. Co., 134 Cal. 370, [66 Pac. 317]; Crowley v. Genesee M. Co., 55 Cal. 276.) If minutes are not kept, other parties have the right to prove what actually occurred at the meet

ings of the directors, if such proof tends to establish their rights. We are of the opinion that a new trial is necessary, at which the appellant may be allowed fully to present the evidence under the rules we have stated.

The judgment is reversed.

Lawlor, J., Olney, J., Melvin, J., and Angellotti, C. J., concurred.

[L. A. No. 5854. Department One.-June 5, 1919.]

In the Matter of the Estate of CORNELIUS WALKER, Deceased. MABEL A. NASON, Appellant, v. MABEL E. WALKER, Guardian, etc., Respondent.

[1] PARENT AND CHILD - PRESUMPTION OF LEGITIMACY

REBUTTAL.

The presumption under section 194 of the Civil Code that a child born within ten months after the dissolution of the marriage of the mother is legitimate can be overcome only by proper and sufficient evidence showing that the husband was impotent, or that he was entirely absent from his wife during the period when the child must have been begotten, or that he was present with his wife only under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse.

[2] ESTATES OF DECEASED PERSONS- CONTEST OF HEIRSHIP — LEGITIMACY OF CHILDREN-IMPOTENCY OF HUSBAND-INSTRUCTION.-In a contest on final distribution of an estate involving the legitimacy of twin children born to the surviving wife of the deceased after his death, the refusal to give concise and specific instruction that if the jury found the deceased impotent their verdict should be against such children, was not prejudicial error, where the issue was covered in given instructions, although not so clearly and definitely stated, and the jury could not fail to understand both the issue and its effect.

[3] OPPORTUNITY FOR INTERCOURSE.-The fact that the husband and wife, although separated, met and had opportunity for intercourse, is not conclusive as to the legitimacy of children born to the wife, and evidence of the relations and feelings between the parties is admissible to rebut any inference that they had intercourse when they met. [4] PARENT AND CHILD-REBUTTAL OF LEGITIMACY OF CHILDREN-TRUE RULE. If it is possible by the laws of nature for the husband to be the father (that is, if there was coition and no impotency),

no inquiry will be permitted into the probabilites of the case one way or the other, but the presumption of legitimacy is conclusive; and, on the other hand, it is always permissible to show that it was not possible by the laws of nature for the husband to be the father, as by showing impotency on his part, want of intercourse during the possible period of conception, or that the child is of a race or color such that it could not have been conceived by the husband.

[5] ID.-IMPOSSIBILITY OF PATERNITY-EVIDENCE-The fact that it was not possible by the laws of nature for the husband to be the father, where that fact is in issue, is to be inquired into in the same manner as any other fact which is the subject of judicial inquiry, and any competent evidence relevant to the question is admissible as in other cases, it being the rule, however, in California, that neither the husband nor the wife is competent to testify to lack of inter

course.

[6] ID.-DEGREE OF PROOF.-The rule that the presumption of legiti macy is conclusive if it were possible by the laws of nature for the husband to be the father does not require that the proof of the fact of such impossibility must itself be beyond possibility of doubt. [7] ESTATES OF DECEASED PERSONS- CONTEST OF HEIRSHIP LEGITI MACY OF CHILDREN-EVIDENCE-WANT OF OPPORTUNITY FOR INTERCOURSE.-In' a contest upon the final distribution of an estate involving the legitimacy of twin children born to a married woman, the court properly refused to confine the evidence of illegitimacy to a showing that the mother and her husband met only under circumstances which did not afford an opportunity for intercourse. [8] ID. EVIDENCE OF BIRTH OF PRIOR ILLEGITIMATE CHILD-EFFECT OF FORMER CONTRARY DECISION-LAW OF CASE.-Evidence merely that the wife had given birth to a prior illegitimate child is inadmissible, but evidence of such fact, when coupled with evidence that the husband knew of the fact, is admissible where husband and wife have separated but have met from time to time, for the purpose of showing the relationship and feeling between them, and rebutting any inference that intercourse took place between them on the occasions when they met. In the present case, however, the rejection of such evidence was not error, in view of the ruling on the previous appeal that it should be rejected, which ruling became the law of the case.

[9] ID.-PARENTAGE OF CHILDREN-CONSTRUCTION

EVIDENCE.-In such

a contest, a refusal to permit evidence of intercourse by the wife with another than her husband was correct, since the evidence was properly confined to proving nonintercourse with the husband, and on that issue evidence of relations by the wife with others was wholly immaterial. A refusal at the same time to instruct the jury that it was not necessary to find who was the father of the children, if the mother's husband was not, was not prejudicial, since

the jury were explicitly instructed that the only question they were to determine was whether or not the children were the children of their mother's husband, and the jury could not have been misled into conceiving it to be their duty to find the husband to be the father unless they could determine the identity of the man who was. [10] ID.-REBUTTAL OF PRESUMPTION OF LEGITIMACY-DEGREE OF PROOF -INSTRUCTION.-An instruction that the presumption of legitimacy can be overcome only by clear and satisfactory proof is a correct statement of the law.

[11] ID.-INTERLOCUTORY DECREE OF DIVORCE-EFFECT OF ERRONEOUS INSTRUCTION. In such a contest, an instruction that the interlocutory decree of divorce which was admitted was entitled to little weight was error, as being an instruction as to the weight of the evidence, but the error was without prejudice in view of the other instructions given.

APPEAL from a decree of distribution of the Superior Court of Los Angeles County. Paul J. McCormick, Judge. Affirmed.

The facts are stated in the opinion of the court.

Geo. M. Harker for Appellant.

Schmidt & Riggins for Respondent.

OLNEY, J.-The decedent, Cornelius Walker, died intestate November 20, 1913. He left surviving him as his only heirs, then in being, his wife, Mabel E. Walker, and a daughter by a previous marriage, Mabel A. Nason. A few months before his death, that is, on July 3, 1913, he had secured an interlocutory decree of divorce from his wife on the ground of desertion. He had also made a property settlement with her whereby she released any interest in his estate, with the result that on his death his daughter was the only heir then in being who was interested in the estate.

On April 11, 1914, something under five months after the decedent's death and nine months and eight days after the interlocutory decree of divorce, his widow gave birth to twin sons, who were named Edwin N. Walker and E. Earl Walker.

On the death of Walker, his daughter was appointed administratrix of his estate, and something more than a year later filed her final account as such and petitioned that the estate be distributed to her as the only heir. Thereupon

Mrs. Walker, as the guardian of her twin sons mentioned, filed a counter-petition for distribution of the estate equally to them with the daughter, as being children of Walker. To this petition the daughter filed an answer denying that the twins were the children of Walker and alleging that they were illegitimate.

(Es

The issue of legitimacy so presented has been tried twice, each time before a jury. On the first trial the jury found the children illegitimate; an appeal was taken on their behalf, and a new trial ordered by this court for errors in the admission of evidence and the giving of instructions. tate of Walker, 176 Cal. 402, [168 Pac. 689].) On the second trial the jury found the children legitimate and a decree of distribution was made based upon this verdict. From this decree the present appeal is prosecuted by the daughter, Mrs. Nason.

[1] On the first appeal it was held, in effect, that, under section 194 of the Civil Code providing that a child born within ten months after the dissolution of the marriage of the mother is presumed legitimate, the children here involved must be presumed legitimate, and that this presumption could be overcome only by proper and sufficient evidence showing one or more of three alternatives, namely, either (1) that the husband was impotent, or (2) that he was entirely absent from his wife during the period when the children must have been begotten, or (3) that he was present with his wife only "under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse."

It appeared at the second trial, as at the first, that Walker was not entirely absent from his wife during the period of possible conception. It should, in fact, be noted that his wife testified to acts of intercourse during this period. The second of the alternatives mentioned was, therefore, not present in the case, and the trial revolved around the other twothe questions as to the impotency of the decedent, and as to his having been present with his wife only "under such circumstances as afford clear and satisfactory proof that there was no sexual intercourse."

The serious questions on this appeal arise in connection with the second of these two last-mentioned alternatives. Before discussing them, it may be well to dispose of the single question in connection with the first-the alleged im

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