In the Matter of the ESTATE OF CHARLES F. FORNEY, Deceased
In re the Estate of Forney
Sanders, J.: I dissent.
In the Matter of the ESTATE OF CHARLES F. FORNEY, Deceased.
[No. 2394]
In the Matter of the ESTATE OF CHARLES F. FORNEY, Deceased.
[184 Pac. 206; 186 Pac. 678]
1. Bastards — Legitimation Must Be Valid in State Where Bastard ajstd Father Lived.
Legitimation oí a bastard must be according to the law of the state in which she and her father had lived during their joint lives, to entitle her to take as his heir personal property which he left in another state.
2. Bastards — For Legitimation Father Must Have Family into which Child Is Received.
Under Civ. Code Cal. sec. 230, for legitimation of a bastard, the father must have a family into which the child can be received.
ON PETITION FOR REHEARING
1. Bastards — Legitimation, Once Made, Cannot Be Repudiated.
Once a child born illegitimate has been legitimated, from such moment it acquires every legal right which a child born in wedlock can enjoy, its right of inheritance becomes fixed, and the father cannot repudiate his act in legitimating it.
2. Bastards — What Law Governs Legitimation.
There can be only one proper state for the legitimation of a child bom illegitimate; and, if it is not legitimated according to the laws of such state, it is not legitimated anywhere.
3. Bastards — Legitimation Controlled by Law of State of Domicile of Father.
Wliere a bastard child was bom in California to a father there resident, and subsequently the father died leaving personalty in Nevada, the child cannot claim such personalty on any theory of legitimation under Nevada law, not having been legitimated in California, whose laws controlled.
4. Appeal and Error — No Consideration on Rehearing of Question Not Urged on Original Hearing.
A question not urged in the supreme court on original hearing of the appeal cannot be considered on rehearing.
Appeal from Second Judicial District Court, Washoe County; George A. Barlett, Judge.
In the Matter of the Estate of Charles F. Forney, Deceased. From the decree of distribution, and an order denying a motion for a new trial, the administrator and the State appeal.
Reversed. Petition for rehearing denied.
Sanders, J., dissenting.
Sardis Summer-field, for Appéllant:
Under the law of California, decedent at no time occupied the legal status which enabled him by mere declarations and conduct to adopt claimant. Decedent was not a man of family, and had no wife nor family home. In order to prevail, claimant must bring herself squarely within the provisions of the California statute. Cal. C. C., sec. 230.
Legal adoption is purely a creation of statute law, and was and is unknown to the common law. Blythe v. Ayres, 96 Cal. 575; Estate of De Laveaga, 142 Cal. 169.
Adoption properly applies only to persons who are. unrelated by blood to the adopting party. 1 Cyc. 917; Morris v. Estate of Sessions, 70 Mich. 297; Russell v. Russell, 84 Ala. 48; Vidal v. Commagere, 13 La. Ann. 516; People v. Norton, 59 Barb. 169; Brady v. Miles, 23 Ind. App. 432. Legitimation applies only to bastards upon whom the parent confers the status of legitimacy. 5 Cyc. 632; Blythe v. Ayres, 96 Cal. 559.
The laws of California must control in the distribution of the estate. Ross.v. Ross, 129 Mass. 243; White v. Tennant, 31 W. Va. 790; Smith v. Howard, 86 Me. 203;-- Higgins v. Eaton, 188 Fed. 958; Hayes v. Pratt, 147 U. S. 570; Metcalf v. Lowther, 56 Ala. 318; Gibson v. Dowell, 42 Ark. 133. “The law of the domicile governs the distribution of personal property.” Woerner’s Law Amer. Admin., par. 565. “The law of the domicile of the parties is generally the rule which governs the creation of the status of an adopted child. 1 Cyc. 931. Even if the law of Nevada controls, respondent has failed to establish her heirship.
L. B. Fowler, Attorney-General, and Robert Richards, Deputy Attorney-General, for the State:
The decree and order appealed from should be reversed, with the direction to the lower court to enter its order and decree of escheat of the residue of the estate on the record as provided by law.
To entitle respondent to the residue of the estate, the record must bring her clearly within the provisions of law. The statutes of succession and distribution in all jurisdictions are not predicated on inherent right, since there is no natural right subsisting in any one to succeed to an ancestor’s property at the time of his demise. 14 Cyc. 225; 8 Cyc. 894.
As the domicile of an illegitimate child is that of the mother, the laws of California are applicable to the facts of this case. “It is the rule of the American cases that the domicile of an illegitimate child is that of the mother.” Louisville & N. R. Co. v. Kimbrough, 115 Ky. 512; McNicoll v. Ives, 3 Ohio N. P. 6, 4 Ohio S. & C. P. Dec. 75; Blythe v. Ayres, 96 Cal. 532; Cal. C. C., sec. 230;. Garner v. Judd, 136 Cal. 395; Estate of De Laveaga, 142 Cal'. 158. The existence of a family into which the child can be received is essential to an adoption under the statute. Estate of Gird, 157 Cal. 538; Estate of Jones, 166 Cal. 108.
Questions arising on similar statutes in other jurisdictions have been decided in accordance with the California decisions. Watson v. Richardson, 110 Iowa, 673; .Morton v. Morton, 62 Neb. 427.
James T. Boyd and Harlan L. Howard, for Respondent:
Our courts have jurisdiction where property is situated in the state. When its status is established, the law gives the child a right of succession and a right to inherit whatever property the father might be possessed of in this state. The law of California is not the same as ours. It establishes a right of succession to property in that state and what acts are necessary upon the part of the father of an illegitimate child to give the child the right to inherit property in that state. Such statutes have no extraterritorial force. Hood v. McGehee, 189 Fed. 205; Brown v. Finley, 21 L. R. A. 679; Blythe v. Ayres, 96 Cal. 532; In Re Loyd’s Estate, 148 Pac. 522.
The respondent claims the property by virtue of the statute of Nevada. Rev. Laws, 5833; Van Horn v. Van Horn, 45 L. R. A. 93; Brown v. Finley, '21 L. R. A. 679.
By the Court,
Coleman, C. J.:
Charles F. Forney, long a resident of Truckee,J Cal., died leaving on deposit in certain banks in Reno, Nevada, the sum of $4,500. The public administrator of Washoe County, Nevada, qualified as administrator of the estate, and in due time filed his final report and petition for distribution, which alleges:
"That the whole of said estate is the separate property of said decedent, and that your petitioner is informed and believes, and therefore alleges the fact to be, said decedent at the time of his death left him surviving no wife, nor father, nor mother, nor sister, nor brother, nor any children, nor ancestors, nor descendants, whomsoever, and left him surviving no heir or heirs at law or next of kin whatsoever, and, according to the best information and belief of your petitioner, all the rest, residue, and remainder of said estate should escheat herein and be distributed to the State of Nevada pursuant to the provisions of law."
On the 10th day of April, 1915, one Gladys Pohl, by and through her guardian ad litem, filed in the matter of said estate her petition, reciting that she was the daughter of the deceased and one Minnie Pohl; that she was born at the town of Truckee, Caly/on the 6th day of April, 1908, and that ever since her birth she had continued to reside with her mother in said town; that the said Forney, on various and divers occasions, publicly acknowledged the said Gladys Pohl to be his daughter; that he provided her with the common necessaries of life, and informed various and divers persons that the said Gladys Pohl was his daughter, and that he intended to care and provide for her as a father should; that said Gladys Pohl is the only child of deceased, and that there are no other heirs. Said petition concludes with a prayer that the estate of the deceased be distributed tc her after the payment of all charges of administration.
Upon the hearing, the court found the facts to be as alleged in the petition of said guardian, and entered a decree accordingly. From the decree, and from an order denying a motion for a new trial, the administrator and the state have appealed.
Counsel for appellants contend that the statute of California controls in determining whether or not Gladys Pohl was legitimated by Forney during his lifetime, while counsel for respondent argue that the statute of Nevada controls. The petition filed in behalf of the minor does not allege facts sufficient to make out a claim under the California law, in that it fails to allege that Forney received the child into his family.
A child's right to inherit depends upon its status. There must be some fixed place where the status of the child can be established. What better place than the residence of both parties? Common sense and reason both so dictate. The status of a child is not an ambulatory thing, which can be shifted from place to place to suit any condition that may arise. If any other rule prevailed, and Forney had left money on deposit in several states, the minor might be permitted to lay claim to the deposits in all of them except the state in which she and Forney had lived during their joint lives, which would be, it seems to us, a reflection upon the law. It was to avoid such absurd results that led to the establishing of the rule recognized in Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 322, and therein expressed in the following language:
"It is a general principle that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in the other's property, is fixed by the law of the domicile, and that this status and capacity are to be recognized and upheld in every other state, so far as they are not inconsistent with its own laws and policy. Subject to this limitation, upon the death of any man, the status of those who claim succession or inheritance in his estate is to be ascertained by the law under which that status was acquired; his personal property is indeed to be distributed according to the law of his domicile at the time of his death, and his real estate descends according to the law of the place in which it is situated; but, in either case, it is according to those provisions of that law which regulate the succession or inheritance of persons having such a status."
. This rule is recognized by and stated in Woerner's American Law of Administration (2d ed.) at section 565, as follows:
"It has been repeatedly stated that the law of the domicile governs the distribution of personal property, so that it is unnecessary to cite authorities here in support of this principle."
It is said in 1 Cyc., p. 931:
"The law of the domicile of the parties is generally the rule which governs the creation of the status of an adopted child."
There may be some exceptions to the general rule laid down, but these exceptions are made in favor of persons. domiciled in the state in which the property is situated. 22 R. C. L., p. 42, sec. 8.
In opposition to the rule laid down, counsel for respondent rely upon the cases of Hood v. McGehee (C. C.) 189 Fed. 205, Brown v. Finley, 157 Ala. 424, 47 South. 577, 21 L. R. A. (N.S.) 679, 131 Am. St. Rep. 68, 16 Ann. Cas. 778; Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40, and In Re Loyd's Estate, 170 Cal. 85, 148 Pac. 522. We do not think any of the cases cited sustains the contention. In the first case mentioned, real estate was involved, and question as to the adoption of the plaintiffs was not in controversy. It was purely a question as to whether or not adoptive children by proceedings under the laws of Louisiana, or the defendants, the next of kin, should inherit under the laws of Alabama. The court said:
"Each state has exclusive jurisdiction of the regulation of the transfer and descent of real estate within its limits. It would be competent for the legislature of Alabama to deny the right to inherit real property to children adopted in its own courts by its own procedure. It would be competent for it to confer such rights on children of its own adoption and deny it to those of the adoption of foreign states. This is what Alabama legislation, as construed by its court of last resort, has accomplished."
In the Loyd case the question here presented was not considered nor disposed of. In the case of Blythe v. Ayres the child sought to recover under the laws of California, the state in which the father had lived, and where all the declarations and' acts relied upon to establish legitimation had taken place. In the opinion we find nothing repugnant to the rule stated. Brown v. Finley seems to sustain the contention made for it, but it is not in accord with the general rule, and does not appeal to our sense of what the law ought to be.
Having reached the conclusion that the law of California controls, let us inquire what the law of that state is as to the legitimating of a child born out of wedlock. Section 230 of the Civil Code of California reads as follows:
"The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption."
This statute has been construed by the Supreme Court of California in several cases, and in the matter of the Estate of De Laveaga, 142 Cal. 158, 75 Pac. 790, it was held that the existence of a family into which a child could be received was essential to an adoption, and in Estate of Gird, 157 Cal. 534, 108 Pac. 499, 137 Am. St. Rep. 131, the court, in speaking of this question, said:
"Different views have been entertained by justices of this court whether the existence of a family into which the child can be received is essential to an adoption under this section; but that question has been finally determined in the affirmative by this court in Estate of De Laveaga."
In addition to the California cases cited in the briefs of counsel, we call attention to In Re Walker's Estate (Cal.) 181 Pac. 792; In Re McNamara's Estate (Cal.) 183 Pac. 552, decided August 25, 1919. There is now pending and undecided before the Supreme Court of California the case of In Re Estate of Baird (No. S. F. 8995), in which the same question is involved. What constitutes a "family" has been a question of much concern before the Supreme Court of California.
But it not being contended that Forney had a family into which he could have taken the child, or that he did take her into his family, we are compelled to direct a reversal of the order and judgment appealed from, and that a new trial be granted; respondent to have leave to amend his petition, as he may be advised.
The judgment and order appealed from are reversed.