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District Court of Appeal, First District, Division 2, California.


Civ. 12679.

Decided: May 11, 1944

Robert E. Hatch, of San Francisco, and Giannini, Callahan & Giannini, of San Jose, for appellant. Simeon E. Sheffey, of San Francisco, for respondent.

A petition for determination of heirship was denied and the petitioner has appealed upon a settled statement under rule 7 of the Rules on Appeal. From this statement it appears that the petition was heard and determined upon a stipulation as to the facts to which petitioner would testify and that no other evidence oral or written was taken. In this form the typewritten record of ten pages presents everything needed for a determination of the issues on the appeal.

From this it appears that the petitioner was born in Norway the son of decedent on June 24, 1883, and that his father and mother were at no time husband and wife. The father came to Minnesota, married another, and had two children. In 1904 petitioner, at the request of the father and his wife, came to Minnesota, was publicly recognized by the father, and was received into the family as a son. In 1906 the family moved to New Mexico, the petitioner continued to live as a member of the family, and was publicly acknowledged as a son of decedent. It does not appear when decedent became a resident of California, and it does not appear whether petitioner is now or ever has been domiciled in this state.

The controversy rests upon the interpretation to be given section 230 of the Civil Code and section 255 of the Probate Code. These read: “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.”

“Every illegitimate child is an heir of his mother, and also of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of the parent's kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child is deemed legitimate for all purposes of succession.”

The leading case involving these sections is Blythe v. Ayres, 96 Cal. 532, 31 P. 915, 19 L.R.A. 40, where the supreme court held that a child born out of wedlock in England of a father domiciled in California was entitled to succeed to the estate of the father because both code sections had been complied with. At the outset here it should be noted that there is no contention that the paternity was acknowledged in writing and hence no contention that the petitioner was entitled to inherit under section 255 of the Probate Code. It should also be noted that the Civil Code section relates to the status of the illegitimate child and provides for its legitimation “for all purposes,” whereas the section of the Probate Code is a statute of succession or inheritance only.

In the early common law a bastard was said to be nullius filius, the child of nobody. It had no father, and, in some instances, had no mother. This harsh rule was one of necessity for the protection of the succession to the crown and of the baronial estates. Instances were had where a bastard child was declared legitimate by legislative act, but the truth of parentage was not an essential factor in the parliamentary declaration. As the states drifted from the strict rules of the common law, statutes were enacted taking a more liberal view of these relations and providing for the legitimation by subsequent marriage of the parents, acknowledging acts of the father, and court process. Vernier, American Family Laws, Vol. IV, p. 158 et seq. Some of these statutes provide for a change in the status of the bastard which makes him legitimate “for all purposes.” Others, and the great majority, merely fix the right of inheritance, either to a limited extent, or fully and on an equal basis with that of a natural child born in wedlock.

We are concerned here with the laws of our own state and those of Minnesota and New Mexico. One of the questions involved is whether the laws of either of these two latter states effect legitimation for all purposes or for limited purposes of inheritance. We are not concerned with the laws of bastardy which relate generally to the obligation of support and maintenance. There is also presented the correlated question whether the Civil Code section relates to adults as well as to minors.

Section 230 of the Civil Code declares that: “The foregoing provisions of this chapter do not apply to such an adoption.” One of the “provisions” of the chapter is that: “Any minor child may be adopted by any adult person, in the cases and subject to the rules prescribed in this chapter.” Section 221. In Re Pico's Estate, 52 Cal. 84, the court held that since section 230 appeared in the chapter relating to adoption, and since section 221 limited the proceedings to minors, the acts of legitimation referred to in section 230 must occur during the minority of the minor child. The last sentence of section 230 declaring that the “foregoing provisions of this chapter” should not apply to the section were said to refer “only to the procedure by which the adoption may be effected.” Though the case has not been expressly overruled it has been uniformly criticised by the courts and text writers and is not supported by any authority or reason. Blythe v. Ayres, 96 Cal. 532, 31 P. 915, 19 L.R.A. 40; Wolf v. Gall, 32 Cal.App. 286, 163 P. 346, 350; Vernier, American Family Laws, Vol. IV, p. 179; 29 Cal.Law Rev. p. 187. The ruling has been called “unfortunate” because it rejects the whole purpose of the concluding sentence exempting all the provisions of the section from all the previous “provisions” of the chapter relating to adoption. To hold that the legislature referred only to the procedural provision and not to the substantive provisions is to read into the section something which was not enacted by the legislature. In the later case of Blythe v. Ayres, supra, the supreme court cast a disapproving doubt upon this reasoning when it said that section 230 was not a statute of “adoption” at all, but that it was merely a statute of “legitimation”, saying (96 Cal. at page 559, 31 P. at page 916, 19 L.R.A. 40):

“Before passing to the merits of the discussion, we pause a moment to say that the verb ‘adopts,’ as used in section 230, is used in the sense of ‘legitimates,’ and that the acts of the father of an illegitimate child, if filling the measure required by that statute, would result, strictly speaking, in the legitimation of such child, rather than in its adoption. Adoption, properly considered, refers to persons who are strangers in blood; legitimation, to persons where the blood relation exists. See law dictionaries,––Bouvier, Black, Anderson, and Rapalje. This is the distinguishing feature between adoption and legitimation, as recognized by all the standard law writers of the day who have written upon the subject; and, for the reason that the text writers and the decisions of courts to which we shall look for light and counsel treat the subject as a question of legitimation, we shall view the matter from that standpoint.

“The section is broad in its terms. It contains no limitations or conditions, and, to the extent of the power vested in the legislature of the state, applies to all illegitimates, wherever located, and whereever born. The legislature has not seen fit to make any exception to its operation, and, as was said by Chief Justice Taney, in Brewer's [Lessee] v. Blougher, 14 Pet. 178 [10 L.Ed. 408], when considering a quite similar provision of a statute: ‘In the case before us, the words are general, and include all persons who come within the description of illegitimate children; and when the legislature speaks in general terms of children of that description, without making any exceptions, we are bound to suppose they design to include the whole class.’ ”

In Wolf v. Gall, supra, the district court of appeal rejected the claim that adult children were not legitimatized by the subsequent marriage of their parents under section 215 of the Civil Code. The court said that the rule of Estate of Pico was not applicable because section 215 did not appear in the chapter on adoption. We may assume that for the same reason it would be held that section 1387 of the Civil Code (now sec. 255, Probate Code), relating to the rights of illegitimate children to succession, would also apply to children legitimatized after their majority.

It is important to note that the code sections recognize a distinction in the status of the adopted child, and the child legitimatized by sections 230 and 255. This is found in the provisions declaring the effect of the several sections. Thus when a child is adopted under sections 221 et seq. of the Civil Code the adopting parent and the child thereupon “sustain towards each other the legal relation of parent and child.” Section 228. One legitimatized under section 230 is deemed legitimate “for all purposes * * * from the time of its birth.” One legitimatized under section 255 of the Probate Code is permitted to inherit to a limited extent but is not deemed “legitimate” unless the procedure outlined in sections 215 or 230 of the Civil Code has been followed. All these sections present a general legislative scheme for establishing the status and the right of inheritance of children born out of wedlock, and no one of them contains any language indicating a legislative intent to confine their scope to the period of minority.

The record here discloses that in the year 1906 the father of petitioner moved his family to New Mexico, that petitioner continued to remain a member of the household, and was there publicly acknowledged by his father to be his son. In both the states of Minnesota and New Mexico the appellant was publicly acknowledged by the father and taken into the family as a son in the manner provided in section 230 of our Civil Code, but not in the manner provided in section 255 of the Probate Code. The effect of these acts in the two foreign states must be determined by the law of the state in which they were performed.

During the period in which the parties resided in Minnesota the statutes of Minnesota, 1894 Probate Code, Title 3, section 4473, provided that: “Every illegitimate child shall be considered as an heir of the person who shall, in writing, signed in the presence of a competent witness, acknowledge himself to be the father of such child * * *.” A revision in 1905––section 3650––is worded differently, but has the same effect. We have found nothing in the laws of that state comparable to section 230 of our Civil Code which provides procedure for legitimation “for all purposes.” At the time of their residence in New Mexico the law of New Mexico provided that illegitimate children “shall inherit from the father whenever they have been recognized by him as his children, but such recognition must have been general and notorious, or else in writing.” See 31–118 N.M.Statutes, 1941 Ann. The language of the original section making an exception when the father left legitimate children was eliminated by the amendment of 1915. This section was considered and applied in Re Gossett's Estate, 46 N.M. 344, 129 P.2d 56, 142 A.L.R. 1441, where reliance was placed on the earlier case of State v. Chavez, 42 N.M. 569, 82 P.2d 900. These authorities recognize the difference between statutes of legitimation for purposes of inheritance and legitimation for all purposes.

It is apparent that these statutes are merely statutes of succession, similar, in effect, to section 255 of our Probate Code. They are not statutes of legitimation changing the status of the individual. Those states which provide for legitimation by marriage of the parents or by public acknowledgment similar to our Civil Code sections generally recognize the child as legitimate “for all purposes.” Vernier, American Family Laws Vol. IV, sec. 246. But this is the result only when the statute relates to the status of the individual. The power of the legislature to make a bastard legitimate for all purposes, or to a limited extent, is universally recognized, as well as the power to declare him capable of inheriting, either generally or to a limited extent. 7 Am.Jur. p. 667. Hence, when the statute of succession prescribes the area of the right of inheritance the status of the illegitimate child is not changed for other purposes.

Here the petitioner rests his cause upon the claim that there was a compliance with the terms of section 230 of the Civil Code. There is no contention that there was a compliance with the terms of section 255 of the Probate Code as there is no evidence of an acknowledgment in writing as required by that section.

In Ross v. Ross, 129 Mass. 243, 246, 37 Am.Rep. 321, it is said: “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 that other's property, is fixed by the law of the domicil; 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 * * *.”

There is a conflict of authority as to what law controls where specified legitimating acts are relied on––the law of the domicile of the father, that of the domicile of the child, or that where the legitimating acts took place. The general rule is that, unless the law of the forum where the suit involving the question of recognition provides otherwise, the law of the state of domicile of the father at the time of the birth of the child or at the time of the act relied on controls. Restatement Conflict of Laws, secs. 139, 140; 7 Am.Jur. p. 661; The Yale Law Journal, Vol. 46, pp. 1049 et seq.; 73 Am.Law Rep. pp. 956 et seq. Our supreme court in Blythe v. Ayres, supra, 561, accepted the principle that the law of the domicile of the father was controlling but declined to rule whether the law in force at the time of birth or that in force at the time of the legitimating act should control, since the parties came within both restrictions. Eddie v. Eddie, 8 N.D. 376, 79 N.W. 856, 73 Am.St.Rep. 765, is authority for the rule that legitimating acts done in a foreign country, which did not recognize them as such, did not change the status of the illegitimate child when the father moved into the state of North Dakota. The principle of the decision is that the law of that State providing for legitimating by subsequent acts did not apply where the father was a non–resident both at the time of the birth of the child and of the legitimating acts.

Authorities which appear to be to the contrary relate to statutes prescribing the right of succession as distinguished from those fixing the status of the parties. Hall v. Gabbert, 213 Ill. 208, 72 N.E. 806; In re Wehr's Estate, 96 Mont. 245, 29 P.2d 836. But the weight of authority is that, when acts of acknowledgment are relied on as fixing the status of the child, the law of the domicile of the father at the time of the performance of the act controls. 73 A.L.R. p. 956. The principle is well stated in Pfeifer v. Wright, 10 Cir., 41 F.2d 464, 466, 73 A.L.R. 932, where the Circuit Court of Appeals said: “Laws of the domicile of the father at the time he acts determine the effect of his acts and if his acts are such as to effectuate legitimation as declared by those laws, the status of the child is thereby changed from illegitimate to legitimate. That status, when once changed, is said to be indelible, and is to be accepted in other jurisdictions for the purposes of descent of real property and the distribution of personal property of the father.” Numerous cases are there cited to the same rule.

Our conclusions from the foregoing are that the petitioner having been born out of wedlock in a foreign country in which his father was domiciled did not gain the status of legitimacy by the acts of acknowledgment occurring in either Minnesota or New Mexico, though, under the laws of those states, he might have been entitled to inherit property left by the father and situated in those states, that no act of acknowledgment having been done, either in the State of California, or while the father was domiciled here, the petitioner did not become legitimate “for all purposes” under the terms of section 230 of the Civil Code; that if, while the father was domiciled in this state, the legitimating acts specified in the code section occurred, either here or elsewhere, the petitioner's rights would be settled by that section. But there is no proof covering these two essential facts––the time when the father became domiciled in California, and whether any legitimating acts specified in the code section were done thereafter.

The order is affirmed.

NOURSE, Presiding Justice.