A-7393010
Decided by Central Office April 25, 1951
Citizenship — Acquisition by child born abroad of alien mother and United States citizen natural father (1877) — Effect of legitimation — Section 320 of California Civil Code.
A child, born abroad in 1877 to an alien mother and a United States citizen natural father, was legitimated subsequently under the provisions of Sec. 320 of the California Civil Code; the retroactive effect of such legitimation resulted in the child's acquisition of citizenship as of the time of birth, under the act of February 10, 1855 ( 10 Stat. 604). (See R.S. 1993 prior to its amendment by act of May 24, 1934.)
BEFORE THE CENTRAL OFFICE
Discussion: The applicant claims to have acquired United States citizenship at birth in Germany on September 13, 1877, under the provisions of the act of February 10, 1855 ( 10 Stat. 604), as a child of a United States citizen father.
The question presented is whether the applicant has established that she is the lawful child of the person through whom United States citizenship is claimed.
The record shows that the applicant was born at Munich, Germany, on September 13, 1877. Only the name of her mother appears on her birth record. The applicant has been unable to establish that her parents were ever married ceremonially or otherwise. The applicant came to the United States in September 1894 and she has since resided in this country. She was married to a native of England on January 1, 1900, at New York, N.Y. He is now deceased. No record of his having been naturalized in the United States has been found. The applicant claims that Mr. T---- W----, an American artist was her father. She testified that her earliest recollection of him was when she was about 5 or 6 years of age, then living in the Latin Quarter of Paris, France, with him and her mother. She recalled attending a kindergarten in Paris, and the quarrels of her parents, shortly after which her father left, and she accompanied her mother and a brother from Paris to Germany, where friends of her mother's family took her into their home. She stated that this occurred in October 1883, and that her mother returned to Paris. While the applicant was under the impression that the people with whom she lived in Germany heard from her father, she "never got to see the letters," and she did not see her father from 1883 to 1913. The applicant had told her husband about her father, and in mingling with other artists the applicant's husband heard that her father was a member of the "Bohemian Club." The applicant obtained her father's address from that organization and corresponded with him. He was then residing in Santa Barbara, Calif., and the applicant was living in San Francisco, Calif., with her husband and their two children. Evidence of record establishes that after hearing from the applicant in 1913, her father sent her a telegram on September 24, 1913, advising that he would "come Monday 29th have written." The applicant testified that her father then visited at her home in San Francisco for about 3 days. She stated that he was pleased with her paintings (water colors) and provided her with expensive artists' equipment, and encouraged her in her art work. He invited her to his home and offered to assist her in the care of her two children. Due to her husband's feelings she did not then visit her father. After writing to her father concerning her husband's attitude, he wired her on October 5, 1913, to come to him first (before returning to a former position in Oregon) and that he would assist her. On the following day, the applicant's father sent her another telegram stating that he would "meet you at boat Friday morning. Have written." In the meantime the applicant had written to her father advising that she thought it best not to go to Santa Barbara, because of her husband's attitude, and her father provided her with money for traveling expenses to Portland, Oreg. In his letters to the applicant under dates of October 3, and 6, 1913, the said Mr. W---- referred to the applicant as "my dear little girl" and "dear daughter," respectively. Further evidence in the record of his acknowledgment of the applicant as his daughter is found in the fact that the author of his biography has referred to the applicant as his daughter, and on January 18, 1920, Mr. W----'s widow wrote to the applicant, in part, as follows:
I didn't know your address and have even forgotten your name until your letter came. Yes, Mr. W---- had told me about you before we were married he used to speak of you with great affection. * * *
In 1913, after 20 years absence, I went back East to see my mother sisters while there Mr. W---- wrote me that he had had the greatest surprise of his life in getting a letter from you. He said you and the children were coming to see him. * * *
Again, in a letter to the applicant under the date of September 3, 1920, Mrs. W---- wrote that:
I have much to tell you about how your father always felt toward you and of the efforts he made to come in touch with you but I cannot do it now.
I still have the photographs of you and your brother taken in Paris. Whenever your father looked at yours tears would come to his eyes.
In another letter of April 26, 1922, the said Mrs. W---- advised the applicant, in part, that:
If you knew anything of your father you would realize that although he earned a good deal of money he wouldn't have had much left if it hadn't been for my economy * * *.
The applicant testified that at the time she contacted her father in 1913 his wife was in the East and that "he wrote to her immediately about me." In that connection she further testified that:
Q. What was his wife's reaction to the news?
A. Oh, she was very pleased. She had heard all about it before.
Mrs. W---- died about 1925. The applicant's father died in 1919 in California. The applicant was 18 years of age when she last saw her mother, and she now believes that her mother is dead. With respect to the applicant's brother, she testified that "He lived with my mother's sister in Germany and after I left Germany I never heard direct from him. Through my correspondence with my grandmother I heard indirectly. Later when I met him in United States (after I met my father) he told me that he had been apprenticed in some work in Germany which he hated and so he ran away to America. He saw my father's name in an art publication in United States and contacted him; he lived with my father for several years before I met my father. They were not living together at that time." She further stated that the last time she heard from her brother was in 1922 or 1923, at which time he was residing in Chicago, and that she had not been able to locate him since that time.
The evidence of record satisfactorily establishes that the said Mr. T---- W---- was born in Indiana in 1844, and that he is the natural father of the applicant. If the applicant could prove the marriage of her parents she would clearly have established acquisition of United States nationality at birth. In the absence of such proof and assuming the applicant to have been illegitimate at birth she would have acquired United States nationality at birth if subsequently legitimated.
The applicant's legitimation was not effected under the laws of France. The facts of this case require a determination as to whether or not the applicant was legitimated under the provisions of section 320 of the California Civil Code. That statute provides as follows:
Adoption of Illegitimate Child: 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 statute was enacted in 1872.)
There is no evidence of record that Mrs. W----objected to the recognition and acknowledgement of the applicant by Mr. W---- as his child, receiving her as such, and otherwise treating her as if she were a legitimate child. Since the applicant was married and lived with her husband and two children, the matter of receiving her into the family did not consist of actually taking her into his home.
The record shows that each of the essentials stated in the statute have been complied with, both while the parties were domiciled in France and subsequent to the domicile of applicant's father in California, that is:
(1) It is established that the said T---- W---- is the natural father of the applicant; that
(2) He publicly acknowledged himself to be the applicant's father, both in France and after subsequently acquiring domicile in California; that
(3) He received the applicant into his "family" as his child, and lived with her and her mother in France, and supported the applicant there as his child; he acknowledged the applicant as his child to third persons, in both France and subsequently in California, receiving her in the State of California in 1913 as his child, without objection on the part of his wife; and he then aided and assisted the applicant as would be expected of the parent of a legitimate child; that
(4) He otherwise treated the applicant as a parent would be expected to treat a legimate child, in both France and while he and the applicant were domiciled in California.
It is immaterial to legitimation under the said statute that the applicant's natural parents were never married. The statute does not expressly define what shall constitute a public acknowledgment thereunder. The words of the statute must, therefore, be taken in their ordinary sense. This only imports a holding out of the facts without concealment to the knowledge of third persons. The applicant's treatment by her father coupled with his declarations to third persons, in France and after he and the applicant established a domicile in California, that she is his child, constitutes evidence sufficient to sustain a finding that he publicly acknowledged her as his own. ( Estate of Gird, 157 Calif. 534 (1910)). It has been judicially determined that the provisions of this statute are to be liberally construed, although in derogation of the common law. Under the provisions of the statute, it is immaterial that the applicant was not born in California or in the United States, that her natural parents were residing outside of the United States at the time of her birth, and that acts of legitimation may have occurred outside of the United States. ( Estate of Lund, 26 C. (2d) 472 (1945); Wolf v. Gall, 32 Calif. App. 286; Blythe v. Ayres, 96 Calif. 532 (1892), reheard 102 Calif. 254 (1894)). There is no proscription against the state adopting legislation which makes legitimate within the operation of its laws children who are illegitimate in other jurisdictions, or that such statutes be limited in their applicability to children who were born in the state or whose parent or parents were then domiciled in the state, or that such laws be dependent for operation on acts occurring within the state ( Estate of Lund ( supra)). The applicant's father was domiciled in California for many years after the applicant's birth, including the year 1913 when she contacted her father in that state, where both were then domiciled. Since the acts of recognition by the father in France are sufficient by themselves to satisfy the "recognition" required by the California statute, and since the father's conduct toward the applicant in California in 1913 likewise is sufficient to satisfy that requirement of the law, certainly both together amply establish such recognition and together with the other factors herein set forth establish that the applicant was legitimated under section 320 of the California Civil Code.
The court in the case of Estate of Gird ( supra), noted that the word "family" is not a technical word and that it is of flexible meaning. The court stated that the word was to be construed in accordance with the context of the statute and, also, from the subject matter to which it relates, and that every case must depend upon its particular circumstances. The court held that the "family" contemplated by this statute may consist only of the woman with whom the father is living with out of marriage and their illegitimate child. Her father's taking the applicant into his family circle in the United States did not consist of her entering his home or residing there, as she was then married and at first living with her husband and children and later returning to Oregon to resume employment there. The case of Louie Wah You v. Nagle, 27 F. (2d) 573 (1928), establishes that legitimation under section 320 of the Civil Code of California suffices to confer United States nationality under the nationality laws of this country.
Under the provisions of the statute under consideration, as construed by the courts of California, it is immaterial whether the legitimation occurred during the applicant's minority or thereafter. ( Estate of Lund ( supra)). The age limitation for legitimations under the Nationality Act of 1940, is not applicable to the instant case. ( Matter of L----, 0500-23945, 0501-9733, C.O. 1948 (Int. Dec. 144, 3, I N. Dec. 225)
Since the effect of the applicant's legitimation is retroactive and confers the full status and rights of a legitimate child as of the date of her birth, the prior order in this case entered on November 16, 1949, denying the application should be withdrawn, and the application granted. Order: It is directed that the order entered in this case on November 16, 1949, denying the application of F---- P---- W---- P---- for a certificate of citizenship, be and it is hereby withdrawn.
It is further ordered, That the application of F---- P---- W---- P---- for a certificate of citizenship be granted. Citizenship was acquired September 13, 1877.