Blythe v. Ayres

McFarland, J., concurring.

— I concur in the judgment of affirmance, upon the ground that the plaintiff is the heir of the deceased under section 1387 of the code. But I dissent from the proposition that plaintiff was adopted by deceased under section 230.

*592Section 230 provides that “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 be married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it.” There can be a compliance with this section only by doing the three things which it requires to be done, viz.: the father must publicly acknowledge the child; he must receive it into his family; and he must otherwise treat it “as if it were a legitimate child.” Assuming that the deceased, in the case at bar, did the first of these three things, he certainly, in my opinion, did not do either of the other two. It is clear that he did not receive the plaintiff into his family; in fact, there is no pretense that he did so. He had no family, and therefore, of course, did not receive her into his family. It is said that as he had no family, he could not have received her into it; nevertheless, the fact remains that he did not do so, and therefore did not comply with the said section of the code. How can there be compliance with a statute in the absence of conditions contemplated by the statute, and absolutely necessary to give it effect? The provision of the code in question assumes the existence of a family; and it assumes that there may be a family in which there is no wife, because it provides that if there be a wife, she must consent to receive the illegitimate child into the family. Either a widower or a bachelor, as we all know, may have a family, viz., “a collective body of persons living together under one head or manager/ In order to make the statute applicable, it is not necessary that there should be a living wife in the family. It might have provided that the child should be received into a family in which there was a wife; and in that event no reception into any other kind of a family would have been sufficient. But it does not so provide. The provision is, that the child must be received into the father’s family, and that if there be a wife, she must consent. There must, however, be a family into which the child can be received; and when that condition is not present, the provision of *593the code under discussion can have no operation. There-is no question here of strict or liberal construction. If it were true that there ought to be a strained construction in favor of illegitimate, as against legitimate, children (and the law would be just the same if legitimate' children were contestants), still, the statute would not bear the tension by which plaintiff seeks to stretch it. The language of the code seems to me plain; it provides that under certain conditions an illegitimate child maybe adopted by certain acts, but when those conditions do not exist, it cannot by such acts be adopted. And iff it be necessary to look beneath the plain language of the section of the code in question to discover the intent of the legislature when enacting it, there is no difficulty in. seeing it. It was clearly the intent, that, in the absence of documentary evidence, the claims of asserted illegitimate children should not succeed upon loose oral . statements about disjointed and uncertain acts and declarations of deceased persons, but that there should be such continuous and unequivocal acts as reception into' the family, and treatment there as legitimate children, in the face of the world./One having no family can adopt the other mode, and can, by a written acknowledgment in the presence of a competent witness, make his illegitimate child his heir, as provided in section 1387 of the Code of Civil Procedure, or may provide for it by will.

I am aware that in the opinion of the court delivered in In re Jessup, 81 Cal. 408, views were expressed different from those above stated; but they were not necessary to the decision of that case, and mere dicta, and I think incorrect. I concurred in that opinion; but as I was thoroughly convinced that the facts in that case did not bring it within the code, under any possible construction of it, I must have failed to consider as thoroughly as I should have done the views above referred to. Upon mature reflection, I am satisfied that they are wrong. •

Neither do I think that the deceased, in the case at bar, *594complied with the third requirement of said section 230; he did not “ otherwise treat plaintiff as if she were a legitimate child.” To treat a child “ as if it were a legitimate child ” is to treat it as ordinary people usually treat their legitimate children, — considering their circumstances in life. Did the deceased do this ? Can any one think that if plaintiff had been his legitimate child, born in lawful wedlock, he would not have treated her differently ? Without reviewing the evidence here, I venture .to say, that, considering all the circumstances, no instance can be found in modern civilized life where a father treated a legitimate child in the manner in which the ■deceased treated the plaintiff.

The case of the plaintiff here appeals, no doubt, strongly to human sympathies. The deceased was a millionaire, and had no legitimate children, and, so far as yet discovered, the plaintiff is his only illegitimate child. But ■the law would have to be applied just the same to a case where half a dozen legitimate children had been left a small estate, and a brood of asserted bastards were clamoring for half the patrimony. No doubt, illicit sexual relations sometimes impose hardships on innocent persons; but such is the result of all violations of law. The legislature could abolish all distinctions between legitimate and illegitimate children; but if it should do so, it would practically abolish marriage, and dethrone chastity .as the queen of womanly virtues.

Upon the second branch of the case, I have come to the conclusion, after a good deal of doubt, that the letters written by the deceased, and testified to by one of the witnesses as having been written and signed in his presence, constituted a written acknowledgment by him that plaintiff was his illegitimate child, within the meaning of section 1387, and that such acknowledgment makes her his heir. There was some evidence to establish these facts, and therefore the findings of the court below must be taken as true. The argument is very strong that the section contemplates a formal written *595instrument made for the express, deliberate purpose of complying with the law, and not a writing made without such present and' deliberate intent. But as the language of the section is very broad, and does not upon its face present the condition contended for by appellants, I am disposed to consider their construction too narrow. Upon this ground I concur' in the judgment.

The judgment of the court below proceeds upon the theory that plaintiff was adopted under section 230; but as the purpose of the action is to determine her heirship, and as the facts which make her an heir under section 1387 are found by the lower court, and as the result is practically the same under either section, I see no objection to affirming the judgment.

De Haven, J., concurred in the foregoing opinion of Mr. Justice McFarland.

Chief Justice Beatty and Justice Harrison, being disqualified, did not participate in the foregoing decision.

Rehearing denied.

Note__It was argued in the briefs of appellants’ counsel to some extent, and has been presented to the court with great force in one of the petitions for a rehearing in this case, that the principles of international law bearing upon the question of legitimation by subsequent marriage cannot be invoked to support other kinds of legitimation provided for by statute. The argument presented — and it is the only argument that can be advanced against the position taken upon this question in the leading opinion — is, that the marriage being performed according to the law of the place of marriage, the mother thereupon takes the domicile of the husband, and the domicile of the illegitimate child, following the domicile of the mother, becomes the same as that of the father, and the domicile of the father and the child thus being the same, there is no obstacle whatever to prevent the personal law of the father from taking effect upon the illegitimate child/ This position is entirely overthrown when we pause a moment to consider that many jurists hold that it is the domicile of the father at the time of the birth of the child that controls as to its capacity for legitimation. If such be the fact, upon a subsequent marriage of the parents international law would look to the domicile of the father at the date of birth to determine the question of legitimation, and not to his domicile at the date of marriage. His domicile at the happening of these two events may have been entirely different, may have been within different and distinct sovereignties, and while the marriage would give a domicile to the child in the sovereignty *596where the father then resided, it would be the law of the sovereignty where the father resided at the birth of the child that would effect the legitimation. Hence it would not be the law of the domicile of the child that effected the legitimation, but the law of the previous domicile of the father at the date of its birth, and for that reason appellants’ position is not sound.

'Garoutte, J.