On Petition for Rehearing
By the Court,
Coleman, C. J.:Counsel have filed a petition for a rehearing. It is an earnest plea in behalf of the unfortunate child; and, were it our duty to yield to the impulses of humanity, rather than to be controlled by cold principles" of law, we would likely heed the same. But while all law is bottomed upon the theory that it works justice, there is no delusion that any abstract rule of law can in all cases work out results which satisfy our humanitarian instincts. The Creator, in establishing the laws of nature, well knew that the rain would fall upon the just and the unjust alike, and that, while the operation of every law of nature would injure some, the great masses of humanity would benefit thereby. So, in this case, we must lay down a rule which will be disastrous to the petitioner, but which, in the course of years, will effectuate justice in the great majority of cases. In *238fact, we are laying down no new rule; we are simply adhering to well-established principles:
Counsel, after conceding the necessity of determining the status of Gladys Pohl, say that it must be determined under the law of this-state. That is the sole question before the court. Upon our first consideration of the case, we were convinced as to the law which controls in establishing the status of the child. It seemed so- clear to us at that time that we were, perhaps, somewhat lax in reasoning out the question. In response to the contention urged upon us, let us ask: Why should the question of the child’s status be determined under the law of Nevada? This leads us to ask: What is a status? Is it an imaginary thing ? Is it something which comes into existence to meet a temporary need, and which, when it has served the temporary purpose, may be abandoned ? Or is it something which is permanent and enduring and which continues to exist to meet changing conditions and new situations in life, defying the will of the adopting parent himself, and even a change of the law ? A child’s status is nothing more nor less than its relationship to some other person, or to the state. We are aware that some courts seem to have had trouble in disposing of the question before us, but it seems clear that the trouble was due to a superficial, rather than to a careful, consideration of the underlying reasons which led up to the passage of statutes permitting the legitimation of bastards by the father, such as exist in California and Nevada.
1-2. It being established that a child is once legitimated, from that moment it acquires every legal right which a child born in wedlock .'can enjoy. Its right of inheritance becomes fixed. Could its father, after once legitimating a child, repudiate that act? Could he then, through pique, disappointment, the conduct of the mother,, the adherence of the child to its mother’s cause in a controversy between the father and mother, a new liaison,, or an imaginary grievance against the child itself, denounce the child as an illegitimate, recall his *239former acts of adoption, and make illegitimate one whom he had solemnly made legitimate ? We say no; that the status of legitimacy once established is established for all times, conditions, purposes, and states. Conversely, we say that there can be only one proper state for the legitimation of a child, and, if it is not legitimated according to the laws of that state, it is not legitimated anywhere. When and where, then,- does legitimation take place ? Does it take place in the state of' the legitimating parent, and at the time and place of the performing of the act of legitimating, or does it take place in a foreign state, and at some time other than the performing of the act?
3. As of what time can it be said that Forney legitimated the child in Nevada ? Had he left no property in Nevada, would any one say the child was legitimated in this state? We think not. But the fact that he left money in this state is sought to be made the turning-point of the case. A child’s status cannot be made to turn upon the existence or nonexistence of an estate. There are things more sacred to most of us thari property, and one of them should be a person’s status as to legitimacy.
The logic of counsel’s argument, is to make the status of the child turn upon the fact that Forney left personal property in this state. It seems to us that they have put the cart before the horse. The right to inherit depends upon the child’s status, and not its status upon the existence of an estate in Nevada. If counsel’s theory is correct and were carried to its logical conclusion, a situation might present itself wherein a child would be legitimate in Nevada and enjoy all the rights and privileges thereof, and be illegitimaté in California, for the reason that the California statute pertaining to the legitimating of an illegitimate requires things not required in Nevada, while it is the policy of the law to hold legitimate everywhere a child once legitimated.- 5 R. C. L. 920.
And, further, if counsel’s theory is correct, a father, *240having once legitimated a child in Nevada, where the law as to legitimating a bastard is not so rigid as in California, and being unable to obviate the force and effect of such legitimation in this state, but being desirous of accomplishing the same result, and of depriving such child of its right to inherit, and to make sure of doing it, and the facts not being such as would constitute a legitimating in California, would simply have to transfer his property from Nevada to California. What court would sanction such an act? Status does not depend upon the existence of inheritable property, but the right to inherit does depend upon the child’s status. And we might say, parenthetically, that since realty is distributed according to the lex loci rei sitse and personalty according to the lex domicilii, the question in this instance is whether or not the child was legitimated under the laws of California. In view of the fact that both the deceased and the child were at all times domiciled in California, and of the fact that personalty is distributed according to the law of the domicile, we have never considered the question a debatable one. Nor is it. The Blythe case, 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40, mentioned in our former opinion, really decides the question. That was a case in which Blythe, domiciled in San Francisco, while on a visit to England, begot the child in question. After its birth, and while it was living in England, he performed acts in California which were held sufficient to legitimate the child under the California law, and the court held that, in determining the status of the child, the law of the parent’s domicile controlled.
Professor Minor, in his Conflict of Laws, in discussing the question as to what law governs in fixing the status of a child, says, at section 100:
“Two points should be noticed in this connection, which will aid us in determining the proper law in this case. The first is that the legitimation of a bastard is the creation of a status which is beneficial to him, and it should be presumed in his favor whenever adequate reason exists for such a course. The second is that this *241beneficial status cannot be accorded the infant at the expense of a change of status on the part of the father not warranted by his domiciliary law.
“Applying these two principles, it follows that the law of the father’s domicile at the time of the legitimating act will be the proper law to determine the status of both parties. If by that law the act in question' legitimates the bastard, the beneficial status thus created will in general be recognized everywhere, including the bastard’s domicile, though by the law of the latter state the act would not suffice to create a legitimation. On the other hand, if by the law of the father’s domicile legitimation is not'the result of the act claimed to have that effect, though under the bastard’s domiciliary- law legitimation would result therefrom, the status of legitimation should not be conferred upon the bastard, for that would be to subject the status of the father to a law to which it is not properly subject.”
The Supreme Court of Massachusetts, in Irving v. Ford, 183 Mass. 448, 67 N. E. 366, 65 L. R. A. 177, 97 Am. St. Rep. 447, quotes the above language approvingly; and adopts the rule therein stated. And it was said' in Richmond v. Taylor, 151 Wis. 633, 139 N. W. 435:
“So, also, the law of the domicile of the person making the written acknowledgment, and not that of the domicile of the child or the mother, governs the question of legitimation.”
See, also, 7 C. J. 951.
As to the case of Wolf v. Gall, 32 Cal. App. 286, 163 Pac. 347, we simply wish to say that we have never attached any weight to it, so far as the question in this case is concerned; for, no matter what significance might be given it under ordinary circumstances, the Supreme Court of California, on appeal (32 Cal. App. 286, 163 Pac. 351), held that it was not entirely in accord with its reasoning. In any event, we would hardly be justified in assuming that an inferior court can reverse a superior one; and, so far as we are advised, the law as laid down in the Blythe case is still good in California.
*242But counsel say that it has been repeatedly announced that the courts of California will decide such questions as this according to the laws of that state, regardless of international law, or any other law, and hence there can be no law of comity between this state and California upon the question. No decision of the California court so holding has been called to our attention. The Blythe case, in our opinion, refutes the statement, if anything. In that case the court awarded the estate to a child which had been born in England and had never seen America until after the death of its father, and the opinion turned upon the proposition that the law of the domicile of the father controlled a rule which we know to be supported by practically all of the authorities in the United States, and as well, we believe, by sound reason. Had the child in that case been domiciled in Nevada, the same rule would have governed.
4. Counsel insist that the state cannot claim the money in question by escheat. This question was not urged upon us nor considered upon the original hearing; and, as said on rehearing in Nelson v. Smith, 42 Nev. 302, 176 Pac. 261, 178 Pac. 625, it cannot be now considered. But it seems to us that the point is out of the case. Petitioner must stand or fall upon her rights as a legitimated child. If she was not legitimated, she cannot take the property, and it matters not to her what becomes of the etsate.
The petition for rehearing is denied.
Sanders, J.: I dissent.