The opinion
On Rehearing.
[Decided April 17, 1908.]
Per Curiam.
The appellants state and county, and also Cornelius Sullivan, have filed petitions for rehearing herein. In the petition of the state and county vigorous complaint is made of the following statement in the opinion: [Ante p. 639, 94 Pac. 486 .] “The claimants, the state of Washington and county of King, do not deny the identity of the parentage of the deceased as asserted by the respondents.” We concede that the statement quoted, when considered alone, is inaccurate, and we do not desire that counsel’s contention shall be misunderstood by reason thereof. The entire sentence from which the above is taken reads as follows: “The claimants, the state of Washington and county of King, do not deny the identity of the parentage of the deceased as asserted by the respondents, and in their brief they admit that if any fact is established by the evidence, it is established that John Sullivan was the brother of Eliza Sullivan and Ellen de Silva, but they assert that Sullivan died without surviving heirs.” The above statement in the opinion was based upon the following, which we here quote from the opening brief of appellants state and county, at pages 180, 181:
“Cornelius Sullivan claims as a brother to the deceased through wholly different parentage and necessarily repudiates Bessie Sullivan and Ellen Silva as sisters of the deceased. Like respondents, however, the evidence to establish Cornelius Sullivan’s relationship depends largely and principally upon memory testimony of witnesses; and, regardless of how strong this testimony may be, the fact that John Sullivan has made sworn statements that Bessie Sullivan and Ellen Silva were his sisters, and the correspondence between Mrs. Lyons and John Sullivan, extending over a period of more than twenty years, with reference to the sister Bessie, and the character of that correspondence, unquestionably establishes that Bessie Sullivan and Ellen Silva were his sisters. If any fact is established by the evidence, it is the relationship of the deceased with these two sisters.”
*644 From the above concession that Eliza or Bessie Sullivan and Ellen de Silva were the sisters of John Sullivan, and with the fact established as our previous discussion in the opinion had stated, that the parents of the three were Peter Sullivan and Abigail McAuliffe Sullivan, we saw no room for dispute as to the identity of the parentage. The statement that the said appellants “do not deny the identity of the parentage” is, however, probably misleading to the reader not conversant with the case. While the appellants concede that the relationship of- brother and sister existed between the three, yet they did, and do still, contend that the mother of the three was not Abigail McAuliffe Sullivan, but that her name was Eliza or Bessie. From this contention they deduce the conclusion that the mother was not the aunt of Johanna Callaghan and Edward Corcoran. As stated in the main opinion, we think the evidence established that Abigail McAuliffe was the mother, and that she was the aunt of Callaghan and Corcoran. No fact seemed to us to be more fully established than that Peter and Abigail McAuliffe Sullivan were the parents of Eliza or Bessie Sullivan and Ellen de Silva, and with these appellants conceding that John Sullivan was their brother, there seemed to be virtually no ground for dispute as to the identity of the parentage.
Counsel complain that the statement as made in the opinion puts them in the position of conceding a fact which they had never admitted. The explanatory correction herein made in no way affects the result in our minds, and we have made the statement for the reason that the writer of this and the former opinion, and also the members of the court desire that no apparent injustice may be done to counsel, who have certainly been untiring and vigilant in their efforts to secure what they in their petition for rehearing call “a splendid heritage to the school children of the state.” The petition of Cornelius Sullivan is practically a reargument of the evidence as it was submitted at the hearing. We see no reason for changing our views of the evidence, and both petitions are denied.