I dissent. In my opinion the true principles governing the construction and application of statutes providing for the adoption of children is that the natural relation and the laws governing it, are thereby altered and affected only so far as the statute of adoption by its terms declares or provides, either expressly or by necessary implication, and no farther. Like an invading force upon a hostile domain, it prevails and controls only so far as its lines extend. Beyond those limits all remain under the original control.
The Newman case (75 Cal. 213, [16 P. 887]), declaring that an adopted child inherits from the adopting parent, the Johnson case (98 Cal. 536, [21 L.R.A. 380, 33 P. 460]), *Page 319 holding that such child is entitled, as an heir, to administer on the adopting parent's estate, and the Winchester case (140 Cal. 468, [77 P. 10]), that the child's share is exempt from inheritance to the same extent as that of a natural child, all depending on the same principle of heirship, go to the extreme verge of the invading force of the adoption statute. The reason for these decisions is plain and is found in the statute itself. The descent is cast at the moment of death and the persons on whom the estate then falls are determined by their relationship or kinship to the decedent the instant before his death. The adoption makes the one, legally, a child and the other, legally, a parent, at the time of death. This establishes the status of legal kinship at that time and the results stated by these decisions necessarily follow. These cases, however, do not carry the effects of the adoption to a period after the death of the parent.
The whole purpose and object of the adoption statute is to create, artificially, the relation of parent and child, to provide a status controlling them for their joint lives. That relation cannot last longer than the lives of the two parties to it. When either dies, the relation ceases and there remains nothing upon which the statute under which it was created can operate. The relation has served its purpose and has terminated. It has not, as has the natural relation, blood connections through which it may continue to work after it has itself ceased to have a present existence. There is not in the adoption statute a word to the effect that, where the adoption has served its purpose by prevailing over the natural relation during the joint lives of the two parties and has ended by the death of one of them, it shall thereafter continue for any purpose, or that there is to be thereafter any legal or constructive kinship, or mutual rights of inheritance, between the adopted child and the natural kin of the deceased foster parent, or between the foster parent and the natural kin of the deceased child. So far as the statute goes and while the new status lasts, the natural relations are altered, removed, or suspended. But they are not utterly destroyed. The natural inclinations and affections must remain. The statute cannot destroy them. Beyond the limits of the changes effected by the adoption, and after it has terminated, the natural relations should prevail and control, since there are then, in that field, none other. *Page 320 The result should be and would be that, after this termination of the mutual relation, the inheritance from the survivor, upon his subsequent death, will be controlled by the general law of descent and the natural relationship will prevail. There will be then no artificial relation existing to cause a different course of descent from that to the natural kin.
So far as unjust or inequitable consequences may properly affect the question, it seems to me that the doctrine of the prevailing opinion, including, as it does, the doctrine that the adoption completely and forever removes the adopted child from legal relationship to his blood kin and destroys the mutual relations and rights of each arising therefrom, practically transplanting him into another family, without his consent or wish, unless he happens to be over twelve years old, will cause many more undesirable consequences than the doctrine that the adoption does not affect conditions arising after death has terminated it. If the child is an infant when adopted and the foster parent should presently die, the natural parents would have no legal right to its custody. It would be a waif, a legal orphan. If it should, in after life, accumulate property, and thereupon die without issue or wife surviving, the property would not go to its own kin, but to the family of the long since deceased foster parent. The children of such child would bear no legal relationship to their blood kin, but would belong to the family of the foster parent and would, presumably, inherit from the collateral relatives of that family. The consequences cannot all be foreseen, but these I have mentioned suggest that much confusion and injustice will arise from the rule announced by the court.