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In re Estate of Jessup

Supreme Court of California
Nov 30, 1889
81 Cal. 408 (Cal. 1889)

Summary

rehearing may be granted to correct “mistake of law” in court's opinion

Summary of this case from Alameda County Management Employees Assn. v. Superior Court

Opinion

         Rehearing 81 Cal. 408 at 459.

         Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.

         COUNSEL:

         The court had no jurisdiction to hear the petition for partial distribution, in the case of a contested heirship of an illegitimate child, without prior determination of the right to inherit. (Code Civ. Proc., sec. 1664.) The court erred in allowing the witness Winter to answer as to points of resemblance between petitioner and Gershom P. Jessup. (Young v. Makepeace , 103 Mass. 54; Eddy v. Gray, 4 Allen, 435; Keniston v. Rowe , 16 Me. 38; Hanawalt v. State , 64 Wis. 84; 54 Am. Rep 588; Petrie v. Howe, 4 Thomp. & C. 86; People v. Carney, 29 Hun, 49; Jones v. Jones , 45 Md. 151-153.) The court erred in admitting letters between third parties not communicated to deceased. (Code Civ. Proc., secs. 1848, 2054; People v. Stevens , 52 Cal. 458; Starkie on Evidence, 59 et seq.; Hildreth v. Shepard, 65 Barb. 269; Winslow v. Newlan , 45 Ill. 150.) The court erred in admitting the photographs of Jessup. (Jones v. Jones , 45 Md. 152.) The court erred in admitting the deposition as to the baptism of petitioner, without a showing of diligent search to obtain the record. (Code Civ. Proc., sec. 1855.) The evidence does not justify the decision. All the evidence is consistent with an avowed, manifested, and maintained purpose not to acknowledge or legitimize. (Estate of Sbarboro, Myrick, 258; Estate of Briswalter , 72 Cal. 108; Estate of Pico , 52 Cal. 84; Yardley's Estate , 75 Pa. St. 211; Morgan v. Perry , 51 N.H. 560; Brown v. Belmarde, 3 Kan. 46, 53; McCullough's Estate , 6 Ala. 254; Com. v. Wardell , 128 Mass. 52; Zimmerman v. Franke, 34 Kan. 654; Rice v. Com ., 101 Pa. St. 32; Weatherford v. Weatherford , 20 Ala. 548; 56 Am. Dec. 206; Hartinger v. Ferring , 24 F. 17; Race v. Oldridge , 90 Ill. 250; 32 Am. Rep. 27; 1 Freeman on Executions, 2d ed., sec. 222; Bamm v. Bamm , 42 Md. 297; Cross v. Cross , 55 Mich. 280; Powers v. Charmbury, 35 La. Ann. 630.) The statutes of adoption are in derogation of the common law. (Wallace v. Rappleye , 103 Ill. 229; Eckford v. Knox, 67 Tex. 200; Schouler on Domestic Relations, 232; Estate of Sandford , 4 Cal. 13; Pina v. Peck , 31 Cal. 362, 363.) Consent of the mother of an illegitimate child is necessary to an adoption by its father. (Civ. Code, secs. 224, 226, Luppie v. Winans , 37 N. J. Eq. 245; 5 Wait's Actions and Defenses, p. 49.) Section 1387 is a limitation upon section 230 of the Civil Code, as to heirship, which does not follow from mere adoption. (Smith v. Kelly , 23 Miss. 167; 55 Am. Dec. 87.) The public acknowledgment must be general and notorious to constitute an adoption under section 230. (Webster's Dictionary, definition of "Public"; Rapalje's Law Dictionary, "Public"; Sharon v. Hill, 11 Saw. 382; Estate of Briswalter , 72 Cal. 108; Estate of Blasini, 30 La. Ann., pt. 2, 1393, 1397; Powers v. Charmbury, 35 La. Ann. 634; Barnum v. Barnum , 42 Md. 297; Weatherford v. Weatherford , 20 Ala. 554; 56 Am. Dec. 206.) The testimony as to the oral declarations of the deceased is of trifling value. (Lea v. Polk County Copper Co ., 21 How. 504; Miller v. Cotten , 5 Ga. 349, 350; Davis v. Davis , 26 Cal. 43; 85 Am. Dec. 157; Haven v. Markstrum , 67 Wis. 493; 1 Taylor on Evidence, sec. 648; Crouch v. Hooper, 16 Beav. 184-186; Webb v. Haycook, 19 Beav. 345-347.) Recognition of the fact of paternity does not prove adoption. (Estate of Sbarboro, Myrick, 255, 256.) Nothing which occurred prior to March 31, 1870, can count as evidence of adoption, and only acts since the adoption of the code can be considered as respects adoption under it. (Morgan v. Perry , 51 N.H. 560; Brown v. Belmarde, 3 Kan. 46, 53; Estate of Pico , 52 Cal. 86; Hartinger v. Ferring , 24 F. 17.)

         John H. Dickinson, McAllister & Bergin, John Garber, and Thomas J. Bowers, for Appellants.

          Henry I. Kowalsky, W. H. L. Barnes, and Morris C. Baum, for Respondent.


         The law favors the illegitimate child, and not the father, and statutes for legitimation are humane, and should have a most liberal construction. (Hunt v. Hunt , 37 Me. 333; Richards v. Dogget , 4 Mass. 534; Dickinson's Appeal , 42 Conn. 509; 19 Am. Rep. 553; Crane v. Crane, 31 Iowa 296; Margrove v. Freeman , 12 Ga. 342; Brown v. Belmarde, 3 Kan. 41; Miller v. Miller , 91 N.Y. 315; 43 Am. Rep. 669; Smith v. Kelly's Heirs , 23 Miss. 167; 55 Am. Dec. 87; Succession of Caballero, 24 La. Ann. 573; Simmons v. Bull , 21 Ala. 501; 56 Am. Dec. 261, note.) Personal status once fixed by adoption remains unalterable. (McGunnigle v. McKee , 77 Pa. St. 81; 18 Am. Rep. 428; Hosser's Succession, 37 La. Ann. 839; Lessee of Brewer v. Blougher, 14 Pet. 178; Taurons v. Campbell , 74 Pa. St. 470; Morse v. Welton , 6 Conn. 551; 16 Am. Dec. 73; Torrington v. Farish , 21 Conn. 548.) A public communication may be made to a second or other person, or to a greater number. (Grigsby v. Breckenridge, 2 Bush, 507; King v. Burdett, 4 Barn. & Adol. 412; Egbert v. Lipman , 104 U.S. 333.) The deceased had no family. A family is a collection of individuals bound together by legal and moral ties. (Howard v. Marshall, 48 Tex. 471; Whitehead v. Nickerson, 48 Tex. 517; Strawn v. Strawn , 53 Ill. 263; Wilson v. Corchoran, 31 Tex. 677.) Adoption of an illegitimate child carries with it the right of inheritance. (Civ. Code, sec. 230; Harvey v. Browne , 32 Ind. 89.)

         JUDGES: In Bank. Fox, J. Sharpstein, J., Thornton, J., and McFarland, J., concurred. Paterson, J., dissented. Works, J., Beatty, C. J., dissenting.

         OPINION

          FOX, Judge

          [22 P. 743] Gershom P. Jessup died in this state on the second day of November, 1886, leaving a last will and testament, dated August 28, 1867, and being at the time of his death a resident of the city and county of San Francisco. The will was admitted to probate November 22, 1886, and letters testamentary issued to S. O. Putnam and Isaac Jessup, the executors therein named. He was never married, and his entire estate, amounting to nearly one hundred thousand dollars, was devised to his brother, Isaac Jessup, and his two sisters, Mrs. Ann A. Lindsley and Mrs. Caroline O. Bogart, the two latter of whom were and are non-residents of this state.

         On the eleventh day of April, 1887, the petitioner, respondent here, describing himself as Richard P. Jessup, but signing as Richard Jessup, and who is subsequently shown to have been usually known as Richard Miller, filed his petition in the said case in probate, in which, after setting out the preliminary facts showing the death and pendency of the probate proceedings, and showing the character and condition and amount of the estate, he avers substantially that he is a son of said Gershom P. Jessup, deceased, and of Josie Landis, deceased; that he was born in San Francisco March 20, 1866; that said Gershom P. Jessup and Josie Landis never intermarried nor lived together as husband and wife, but that from and after the birth of said petitioner, and for many years subsequent thereto, and up to the time of the death of said Gershom P. Jessup, he, the said Gershom P. Jessup, publicly acknowledged the petitioner as his child, and supported, maintained, and educated him as such, and otherwise and in all ways treated the petitioner as if he were a legitimate child; "and did thereby adopt your petitioner as and for his legitimate child, and thereby and thenceforth your petitioner became for all purposes the legitimate child of the said Gershom P. Jessup, from the time of your petitioner's birth." It further sets out that said Gershom P. Jessup was never married and never had any family residence; that by an omission not appearing to be intentional, he wholly omitted to provide in his will for petitioner, and claims that by reason thereof petitioner is entitled to the same distributive share in the estate of deceased as though said deceased had died intestate; and then proceeds to set out that the estate is but little indebted, and prays an order of court, after due notice and hearing, distributing the whole of the estate, or such part thereof as the court shall direct, to petitioner, upon his giving bond conditioned for the payment, whenever required, of his proportion of the debts of the estate.

         Under this petition citation was issued to the executors of the will only, and served on the same day. Subsequently the executors appeared and demurred to the petition: 1. For want of facts to entitled the petitioner to partial distribution; 2. Repeating the same ground in another form; 3. For uncertainty, which was duly specified; 4. That the court had no jurisdiction of the subject-matters contained in the petition; 5. For defect and misjoinder of parties, in that the devisees under the will were not joined; 6. That the court had no jurisdiction of the person or any person interested in and necessary to the determination of the questions presented in the petition; 7. That the petitioner had no legal capacity to petition for partial or any distribution, and setting forth the reasons therefor.

         This demurrer was afterward overruled and exception taken, and the ruling is assigned as one of the errors relied upon on this appeal.

         The executors then answered, putting in issue the question of the paternity of the petitioner, and the question of his adoption. On the issue thus framed, a trial was had before the court, and a large amount of testimony was taken. The court found in favor of the petitioner, and gave judgment ordering the distribution of the entire estate to him, upon his giving bond in the sum of one thousand dollars, which was given, conditioned that he would, when required, pay any debts that might be found due from the estate.

         From this decision and judgment or order an appeal is taken to this court, both on questions of law and on the ground of insufficiency of the evidence to justify the decision, the evidence being brought up in a bill of exceptions.

         Twenty-three specifications of errors of law are assigned, six of which go to the question of jurisdiction. Personally, I am of opinion that the court never acquired jurisdiction to hear and determine the questions involved in this appeal; that upon petition for partial distribution, jurisdiction to determine the question of contested heirship, or right to inherit, can only be acquired by proceeding as provided in section 1664 of the Code of Civil Procedure. [22 P. 744] But in this a constitutional number of the justices of the court do not agree with me, and the ruling of the court is in favor of sustaining the ruling of the court below, in so far as relates to the question of jurisdiction.

         The remaining specifications of errors of law relate mostly to certain rulings of the court upon the admission and exclusion of evidence. Counsel for respondent contend that these rulings, even if erroneous, were harmless, for the reason that most of such rulings relate to evidence tending to show that the respondent was the son of the deceased, and that this fact was admitted by counsel in the court below. By an amendment of the record, that which is claimed to have been an admission so made by counsel has been brought to this court. We do not agree with counsel that it is an admission which should be held binding upon the parties, as to the existence of the fact. At most, it was a mere expression of opinion of counsel as to what he supposed the court would find in view of the rulings already made and given, not as an admission of the fact, but as a reason why he need not dwell longer upon that point. The fact of paternity is denied even here, and it is the first of the questions of fact which will have to be determined in any proceeding which the respondent may prosecute for the purpose of asserting his claim to inheritance.

         As to the particular question put to the witness Winter, and objected to, it may be said: For the avowed purpose for which the question was put, it was, to say the least, harmless to admit it. The witness had already testified to the fact that the deceased had admitted to him the paternity of a boy and shown him the boy. The point of inquiry at the moment of the question objected to was the identity of the young man to whom his attention was then called in court with the boy so shown to him some years before, and the witness had himself spoken of marks of resemblance between the person so before him in court and the deceased, and which marks of resemblance had attracted his attention on the former occasion, and it was in reference to these marks of resemblance and reminder that the question was put; the counsel declaring that the question was not put for the purpose of proving paternity, but simply of identity.

         We cannot see that it was prejudicial error to allow the question put to Mrs. Hatton, as to the conversations had between herself and the deceased, at any time during the last six or seven years, in regard to the intentions of the deceased toward Richard's mother. The question was entirely irrelevant and incompetent for the purpose of showing adoption, but it was undoubtedly put in the hope of eliciting further evidence tending to show paternity. It was a dangerous question for the respondent to put, for paternity alone, even if admitted, would not give a right of inheritance, and if the response proved an intention to make any other arrangement than that of marriage (an arrangement which counsel evidently did not expect and did not prove), its tendency was, and evidently must have been, to show that whatever the deceased had done for the boy was done for some reason other than that of an intent to adopt.

         We do not perceive that it was prejudicial error to admit petitioner's exhibits A, B, C, D, E, F, G, and H, the letters of Mrs. Landis to Mrs. Nugent. They were incompetent and inadmissible for the purpose of proving paternity, but they were not offered for such a purpose. The sole object of introducing them was to show that at that time the child's mother acquiesced in the disposition that was being made of, and the provision that was being made for, the child. For that purpose the letters were admissible, although perhaps not very material, it being borne in mind that this was prior to the passage of the act of 1870.

         Exhibit K, the photograph of the deceased, taken ten or twelve years ago, was entirely irrelevant and immaterial to any issue in the cause, and the objection to its introduction should have been sustained. Its admission was, however, probably a harmless error.

         Exhibit L was a photograph showing the deceased and the petitioner in the same picture. It was made shortly before the trial, by bringing two negatives in juxtaposition, and from them making a third. One of them, that of the petitioner, was made from life at the time; the other was an old negative, made several years before. The admitted purpose of the introduction of this picture was to show the resemblance of the two persons, as a fact tending to prove paternity. Mere opinion as to resemblance between a child and its putative father is not admissible in evidence, but the fact of resemblance is held to be some evidence tending to prove paternity, and so when the child and the alleged father have both been present, it has been held permissible to place them side by side before the jury for the purpose of letting them draw their own deductions as to the fact of resemblance. (Gilmanton v. Ham , 38 N.H. 108.) We are not prepared to say that pictures taken by the improved processes of photography may not be admissible for such a purpose; but they would be entitled to much less weight as evidence than profert of the persons themselves, and even the latter would not go far toward establishing relationship, since a marked similarity between strangers, and great dissimilarity between kindred, are matters of almost daily observation. (See 1 Wharton on Evidence, sec. 346.)

         We do not think the exception taken to the admission of the deposition of the clergyman Ward, as a whole, was well taken. Taken by itself, that deposition would not have been admissible as proving, or tending to prove, anything binding upon the deceased; but taken in connection with the testimony of Mrs. Hatton, it was admissible as corroboratory of her testimony in relation to the fact of the christening.

         Errors are also assigned as to some other rulings of the court in the admission and exclusion of evidence, but we do not deem them of sufficient importance to merit special consideration here.

         The only remaining point upon this appeal [22 P. 745] which it is necessary for us now to consider is, that "the evidence is insufficient to justify the decision."          The evidence is voluminous, and at the first reading seems conflicting. But when we have first examined the law and ascertained and determined what facts are necessary to be established by proof, in order to determine that an illegitimate child has been legitimized and given the capacity of inheritance in the estate of the father, the apparent conflict is removed; and upon some at least of the points so necessary to be established by proof we find that there is not only no conflict, but no evidence whatever, to bring the case within the requirements of the law.

         All the rights which are given to the petitioner in the premises are given by statute, passed in derogation of the common law. It is claimed by the respondent that in determining those rights the rule established in section 4 of the Code of Civil Procedure is to be applied, and the statutes are to be liberally construed, with a view to effect the object and to promote justice. That is true, so far as applies to the provisions of the code, when applied to the acts of the deceased done since the passage of the codes. But the converse of the proposition is the rule, so far as reliance is placed upon statutes passed prior to the codes and acts done under them. (Pina v. Peck , 31 Cal. 359.) And even as to the code, "liberal construction" does not mean enlargement or restriction of a plain provision of a written law. If a provision of the code is plain and unambiguous, it is the duty of the court to enforce it as it is written. If it is ambiguous or doubtful, or susceptible of different constructions or interpretations, then such liberality of construction is to be indulged in as, within the fair interpretation of its language, will effect its apparent object and promote justice.

         The law in force at the time of the birth of the respondent reads as follows: "Every illegitimate child shall be considered as an heir of the person who shall, in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child." (Stats. 1850, p. 220, sec. 2.) This statute must be strictly construed. (Pina v. Peck, supra .) There is no pretense that any such written acknowledgment was ever made. It follows that, under this statute, neither oral admission nor proof (otherwise than by such written acknowledgment) of the fact of paternity will constitute the illegitimate child an heir.

This statute continued in force until March 31, 1870, when it was repealed, and the legislature passed "an act providing for the adoption of minors, and the legitimizing of children born out of wedlock." (Stats. 1869-70, p. 530.) The third section of this act provides, among other things, that an illegitimate child cannot be adopted without the consent of the mother, and that the consent of the minor, if over twelve years, shall always be necessary. If this section is construed to apply to the adoption provided for in section 9 of the same act, it requires things which there has been no attempt to prove in this case; but we think that it cannot be fairly construed to have any application to adoptions under said section 9. The first seven sections of the act provide for the adoption of children by strangers, and while the language of section 3 referred to seems to be general, we think it was intended to be limited to the cases provided for in that part of the act embraced in the first seven sections. Sections 8 and 9 read as follows:

         " Sec. 8. A child born before wedlock shall, to all intents and purposes, become legitimate by the subsequent marriage of its parents.

         " Sec. 9. Either or both parents of an illegitimate child, or the father with the consent of his wife, or the mother with the consent of her husband, may acknowledge such child as his or their own, by a document in writing, executed by either if single, or both if married, or by treating, receiving, or acknowledging him publicly as his or their own legitimate child; and such child, and the one mentioned in the foregoing section, shall, to all intents and purposes, be deemed legitimate from the time of its birth, a nd entitled to all the rights and privileges of legitimate offsprings."

         This statute must also be strictly construed, for it was not until the adoption of the codes, and is only as to the codes, that the rule that statutes in derogation of the common law must be strictly construed was changed. This was the first statute which authorized legitimizing of an illegitimate child by any mode other than the written acknowledgment provided for in the statute of 1850, and at the time of the adoption of this statute the respondent in this case was a little over four years of age.

         This statute remained in force until January 1, 1873, when section 230 of the Civil Code took its place. That section, so far as relates to the legitimizing of an illegitimate child, provides: "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." This provision, being a part of the code, is to be liberally construed, but it is not retroactive, and relates only to minor children. (Estate of Pico , 52 Cal. 84, and 56 Cal. 413.) Section 1387 of the same code is a part of the chapter on succession, and provides: "Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother, 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." It is contended that this provision of section 1387 is a limitation upon section 230, but we do not think that the code should be so construed. The whole chapter on adoptions relates to the adoption of minors; and by the express provision of this section 230, an illegitimate minor, acknowledged and adopted as therein provided, "is deemed to be legitimate for all purposes." One of the objects of adoption, and of legitimizing by adoption, is to give the capacity of inheritance. It has been already determined in the Estate of Pico, supra, that this section relates only to minors, who alone are subjects of adoption, and that section 1387 provides for giving to [22 P. 746] illegitimate adults the capacity of inheritance.

         It follows from these statutes, and the rules of law applicable to the construction thereof, that prior to 1870, when this respondent was four years of age, he, the respondent, could not have been adopted by the deceased, or given the capacity of inheritance from him, except by acknowledgment in writing in the presence of a competent witness; that from March 31, 1870, to January 1, 1873, he could have been so adopted and given such capacity either by acknowledgment in writing, as before, or by the deceased having "treated, received, or acknowledged him publicly as his own legitimate child." Both these statutes must be strictly construed. (Pina v. Peck , 31 Cal. 359.) It is conceded there was no written acknowledgment, such as prescribed by either statute. The act of 1870 cannot be construed as retroactive, so as to give force or effect to acts done or performed before its passage, which they would not have had at the time they were so done or performed. Since the 1st of January, 1873, he could have been so adopted and given such capacity of inheritance by the deceased having "publicly acknowledged him as his own, receiving him as such. .. . into his family, and otherwise treating him as if he were a legitimate child"; and this provision is to be liberally construed. But liberal construction does not mean that even this provision is to construed to be retroactive. Nothing that was said or done by the deceased prior to January 1, 1873, can be construed as proving, or tending to prove, such adoption, unless it had that effect at the time it was said or done, and under the law then in force.

         Liberal construction does not require or authorize the frittering away of the written law. Nor are we authorized to consider the apparent justice or hardship of particular cases, for we are not appointed to decide cases alone, but to settle principles first, and second, to decide cases according to those settled principles as applied to the facts presented in the cases. The decision of a single case according to its apparent justice or hardship might establish a principle that would cause greater injustice or greater hardship in numerous other cases. While it is true that illegitimate children are themselves innocent of wrong, and are for that reason entitled to the sympathies of mankind, and to such reparation as the laws can give, it is equally true that courts ought not, by any extraordinary liberality in the construction of those laws, to enable wantons in silk, having children without names, to prey upon the estates of dead men, however much they may have thrived through the fears of living ones. While in this particular case no adventuress is seeking to recoup for her own wrong, it is important to see that a rule of law is not established by construction, which would place a premium upon perjury in other cases, though none may be manifest here. Of the women who are mothers of nameless children, there are few indeed who would hesitate at any fraud, or to whom perjury would seem a crime, if by means of it a dead father, who had left a goodly estate, could be secured for the nameless one, and this even while continuing in illicit intercourse with the actual father still living. And human nature is so weak, that even men are not wanting who would aid their mistresses in palming off their own children upon the estates of dead men, if thereby a competence could be secured upon which both, with their illegitimate offspring, could continue to live in luxury and in crime. On the other hand, the court ought never, by a strained construction in the other direction, to relieve a licentious man or his estate of any of the obligations or burdens which the legislature has imposed as a restraint upon vice, as a reparation to those who actually suffer from his vices, or as a protection to the commonwealth from the burden of supporting the nameless offspring of his crimes. Between these two dangers, the duty of the court is fairly to interpret the laws as the legislature has framed them, without regard to how its action may affect individual cases. If thus interpreted they are found to be too stringent or too liberal, the remedy is through the legislature, and not the courts.

         Acting upon these rules of interpretation and construction, the inquiry is, whether the acts and declarations of the deceased amounted to a public acknowledgment by him of this child as his own, receiving it as such into his family, and otherwise treating it as if it were a legitimate child.

         As he had no home and no family, in the strict sense of "a collective body of persons who live in one house and under one head or manager, a household including parents, children, and servants," it would not be a fair or liberal construction to say that the child had not been adopted or acknowledged because he had not been received in such a home or made a member of such a family. On the other hand, since it is a fact that the deceased did have a family, in the sense of having "brothers and sisters, kindred, descendants of one common progenitor," with some of whom he was brought into frequent contact, and also business associates and friends with whom he was in daily intercourse, from all of whom he not only studiously concealed, and to his brother in express terms denied, the relationship, it would require a liberality of construction destructive of the language of the statute itself to hold that there had been an adoption within the meaning of the code, or of the statute of 1870. And it is conceded that there was none under the statute of 1850.

         An analogous question was recently considered by this court at great length, in the case of Sharon v. Sharon , 79 Cal. 633, and the sum of the conclusion there reached was, that the parties must have held themselves out to their relatives, friends, acquaintances, and the world as occupying toward each other the relations claimed for them in the action. Speaking generally, the laws applicable to this case seem to require something like the same kind of public acknowledgment and recognition as was required in that case. Was there such acknowledgment and recognition?

         Let us consider briefly what is and what is not shown by the evidence. We assume for the purposes of this opinion that the paternity was sufficiently established. That alone, unless established by written acknowledgment [22 P. 747] in the presence of a competent witness, which was not done in this case, does not establish adoption or give a right of inheritance.

         It is also in evidence that when the mother of this child was about to be confined, the deceased brought her to this city and procured for her care and maintenance at the house of a reputable negro nurse during the period of her confinement and illness. One witness, a dentist, with whom the deceased had some acquaintance, and to whom he applied for some professional service for the mother before her confinement, says that at that time the deceased acknowledged to him that the child about to be born of that woman was his; that he said he would not marry the girl, but would be just with her, and pay all the expenses of her care; and would care for the child. Another, a colored woman who had the care of the boy after the first few years of his existence, and daughter of the nurse where the child was born, testifies that, at about the time the mother was brought to the house of her mother, she overheard a conversation between the deceased and her mother, in which deceased acknowledged that he was the father of the child about to be born, and intended to provide for it. She also says that deceased then also promised that he would marry the girl. This is the only direct testimony tending to show a promise on the part of the deceased to marry the child's mother. It is given by one who was herself a child at the time when she says the promise was made. This is in direct conflict with the statement made about the same time to the dentist. The conflict, however, is of little moment, except as it shows a conflict between the two witnesses, without whose testimony the respondent has no case whatever, and tends to show that the recollection of the colored woman, as to events happening and declarations made during the period of her own childhood, may not, in all cases, be reliable.

         It is sufficiently shown that the mother of the child remained at the house of the nurse about seven weeks, during which the deceased called there frequently, the witness says, and Jessup paid all the expenses. After the mother left, the child was kept and cared for by the nurse, at the expense of Jessup, who called frequently to see it, and as it got old enough to observe things, would play with it, calling it his boy, and calling himself daddy, and at a still later period would take the child and the witness, who appears at that time to have acted the part of nurse-girl to the child, to North Beach and let it see the animals there, and buy nuts and cakes for it to feed to them. The girl says that he was very fond of the child, and that it was called Richard at his request. Her testimony is very full as tending to show his interest in and apparent affection for the child while it remained at the house of the original nurse and in the city of San Francisco; she saying, among other things, that he said "he wanted to make a man of him"; and "if Richard behaves himself and does what I want him, he will not be sorry for it," and many other expressions of this kind. All this might have gone far toward proof of acknowledgment and adoption if it had been public and at a time when the law authorized adoption by such kind of acknowledgment. But it was never public. It was made and done only to and in the presence and hearing of the negro family, in whose care he placed and continued to keep it. When he took it out it was with the negro girl, and then not to a place where he would be likely to meet members of his own family and friends. And it all occurred during the period of the child's residence in San Francisco. During all that time the law of 1850 was in force, and no kind of acknowledgment or recognition would amount to adoption unless it was in writing and duly witnessed.

         According to the testimony of this witness, she was herself about thirteen years of age when the respondent was born. In May, 1868, she married and removed to Petaluma, and two months afterward, when the respondent was less than two years old, he was removed to her residence in Petaluma, and that continued to be his residence until 1876, when he was sent away to school. It will be observed that this removal to Petaluma occurred prior to the passage of the act of 1870, and it is a significant fact that it is not shown that the deceased ever visited the boy after such removal, either in sickness or in health, and is affirmatively proved that he never did visit him while living at Petaluma. Nor is it shown that the two ever lodged, even for a single night, in the same house, or ever but once sat down at the same table, or even in the same dining-room, in their lives. It is shown, however, that deceased continued to provide for the boy's maintenance while at Petaluma, and subsequently had the colored woman take him to Washington College, where he had arranged for his board and schooling, and where he was entered and known, as he had been known at Petaluma, by the name of Richard Miller, the latter being the family name of the colored people with whom he had been living. The witness testifies that when she had her own children christened by a colored clergyman at Petaluma, she, at the request of Jessup, had Richard christened by the name of Richard Page Jessup; and the deposition of the clergyman shows that he had some recollection of such an occurrence, but no public or church record was made of the fact, and the private record kept by the clergyman had been lost. It is not shown that Jessup had any knowledge of this fact, except that the witness says she had it done at his request, and that afterward she informed him of the fact, and he gave her five dollars to give to the preacher. The boy was never known anywhere by the name of Jessup, but always and everywhere by the name of Miller. He was placed at school as a ward of Jessup, and the accounts were kept against Jessup as guardian of Richard Miller. Two or three witnesses testify that while at school, when he was sixteen or seventeen years of age, the young man himself declared that he did not know who his father was; and it is fairly deducible from the whole evidence that he never did know Jessup as his father, or call him such, although he knew that, sometimes directly and sometimes indirectly, Jessup was contributing to his [22 P. 748] support. Jessup's diary, and all the accounts and memoranda kept by him relating to the boy, that could be found among his effects, were brought into court, and nowhere among them is there an entry of any kind indicating an acknowledgment of the boy as being his son, -- every reference that is made to him is as Richard or "Dick" Miller.

         It is patent, however, from the evidence that for fourteen or fifteen years he secretly provided for the maintenance of that boy, -- that is to say, as secretly as such a thing could reasonably be done without sending the boy entirely out of the country, -- and the evidence discloses abundant reason why he was not sent away. This could not have been done without causing a denouement, which he was constantly seeking to avoid. Necessarily, the maintenance was not entirely secret. He was compelled to act through and to deal with others in providing for the care and education of the boy. But he always acted through channels that were not within the circles of his ordinary dealing, or his ordinary association, and as far as possible without the knowledge of his family. The fact of the boy's existence, and that Jessup was supporting him, was communicated to his brother while yet the child remained in San Francisco, by the nurse in whose charge he was. A few days afterward the brother asked Jessup about it, and asked him if it was his boy, to which Jessup replied: "No, it ain't my boy." Neither of the brothers was at that time occupying such social positions that either would have been likely to deny paternity through either fear or shame. During the last year or two of his life, Jessup was in feeble health, and it is apparent that both he and his brother felt that his end was approaching. During that period the brother again asked him about the boy, and asked him: "Gus, whatever became of that boy you were taking care of?" To which Jessup replied: "The boy, -- I tried to make something of him. I have taken care of him, and have tried to make something out of him, but he didn't amount to anything, and I let him go." And the brother swears that Jessup never did acknowledge to him that the boy was his.

         Some six or seven witnesses are called beside the dentist and colored woman above referred to, who testify to conversations with the deceased at different times, in which he spoke of the boy as "his boy," and among them we notice that four, beside the dentist and colored woman, sometimes used the words "my son," instead of "my boy," as having been spoken by the deceased; but with all the witnesses who are examined on the subject, "my son," is the exception to the rule, the more common form being "my boy," and the still more common form being "the boy." These witnesses may all be perfectly honest, and still by mistake may have used the words "my son," in the isolated cases where they have used it, when in fact they should have used the form of expression most commonly adopted by them, "my boy," or "the boy." But it makes no difference whether they were mistaken or not. None of these witnesses were members of Jessup's family, and with a single exception they were not persons likely to come in contact with his family. None of them were his business associates, and such of them as could in any sense be called his companions were only so during such portions of his time as he was in hiding from society. They were not persons likely to make public what he had said to them on such a subject, but rather to accept it as a matter of confidence, to be kept secret. Most of them were persons with whom he was brought in contact in the business of providing for the wants of the boy, and to only a few of those persons did he ever make any such revelations; and in no case were they so made as to amount to public acknowledgment. To the clothier from whom he always purchased the boy's clothing, he always spoke of him as "the boy," never using any expression to indicate that it was his son for whom he was providing. To an artist, to whom he paid one hundred dollars for painting a portrait of the child when an infant, he never used any form of expression to indicate a relationship to him, or why he had the portrait painted. But the fact that he procured this portrait is urged as strong evidence tending to show his affection for and his intentions toward the boy. It does not so strike us. It was procured prior to 1870, and consequently proves nothing in the way of adoption. It was retained by him for some ten or twelve years, and during a portion of the time was seen by some few persons in his room. He then had it revarnished, and this fact is dwelt upon as another evidence in support of the theory of adoption, and one occurring after the adoption of the code. But the evidence discloses other facts which, to our minds, militate directly against this theory. It shows that although the mother, for the protection of her own good name, had left the boy to be provided for entirely by Jessup, her heart was constantly crying out for her baby boy, and she was seeking some memento of him. Just about the time this picture was finished she was married. When afterward it was retouched and freshened up she had become a widow, and had removed from the neighborhood in which her kindred resided. It is not shown that she ever received the picture, but on the other hand it is not shown that it was retained in Jessup's possession after it had been retouched, and it is not found among his effects. It does not appear that any effort was made to find it among the effects of the mother, who had died some time before Jessup did.

S. O. Putnam is one of Jessup's executors. He was the executor of a brother of Jessup, who died about 1865, and through whom Jessup received most of his fortune. Putnam and Jessup were always on very intimate relations, ever since the distribution of the former estate; and much of the time Putnam had funds of Jessup's in his hands. He knew that Jessup was providing for a boy, and during a portion of the time such provision was sometimes made through Putnam, but Jessup never told Putnam that the boy was his. In 1881 Jessup sent the boy to San Diego, to go upon a ranch. That was the only time Putnam ever saw the boy. In 1882 the boy returned [22 P. 749] of his own accord, but instead of going to Jessup, he went direct to Mrs. Hatton (formerly Mrs. Miller), the colored woman, then residing at Napa, and from there communicated with Mr. Putnam, writing to him several times for money. These letters were shown to Jessup, and once Jessup authorized some money to be sent to him, but after that, for the balance of his life, Jessup refused to have anything to do with the boy. 432 Without dwelling further upon the details of the evidence, it may be summed up as follows:

         It is shown that before and at the time of the birth of this respondent, Jessup had promised the mother that he would protect her good name by providing for the care and maintenance of this child. So long as the mother lived, he was in fear of personal difficulty from her kindred if he failed to keep this promise. This is shown by the evidence of Mrs. Hatton as to the earlier years, and of Mr. Jackson, and perhaps some others, as to the later years. While the mother lived, and until the boy had reached an age when Jessup seemed to think that he ought to be self-sustaining, he kept that promise. But in keeping it, he kept the boy out of the circle of his own association. To a very limited number of persons with whom he was brought in contact in providing for the boy he spoke of him as "my boy," and possibly to a less number he may have used the words "my son"; but he never used these expressions either to or where they were likely to come to the knowledge of his own family or kindred, or to his most intimate and confidential business acquaintances and friends. He never visited the boy after he was two years old, or after the passage of any law under which adoption could result from any line of conduct other than written acknowledgment duly witnessed; and when the boy was brought or in later years came to him, as he sometimes was and did, he did not entertain him, or keep him with him, for any length of time, but made his interviews brief, provided for his wants, and sent him away. And it does not appear that he ever but once made the boy a present, and then only of a five-dollar watch. Instead of providing for him among people of his own race, he reared him and had him brought up in a colored family, respectable, it is true, but still a family of another race, commonly considered inferior, and to be brought up among whom is regarded by many people of the race of the putative father as degrading; sent to the public school with the colored children, forbidden to bear his name, and allowed him all his life to be known by the name of the colored family in which he was reared; when sent to college, taken there by his colored nurse, and entered there by her name; at last placed upon a farm in San Diego, and when he returns from there going to the only home he ever knew, -- the home of his colored friends, -- and there becoming a boot-black and waiter in a colored barber-shop, and finally left to start from such surroundings and associations to make his own way in life.

         And as further evidence in negation of the idea of adoption, it appears that within a year after the boy was born, and at the time when Jessup was, according to the testimony of the colored nurse, showing more evidences of affection for the boy, and of desire to provide for his future, than he ever afterwards did, he (Jessup) makes a will, in which he wholly omits all mention of the child, or any provision for him, and never afterward changed it. It is true, the colored woman says he frequently told her he was going to provide for the boy, and another woman, whose relations with Jessup were, to say the least, not above suspicion, testifies that toward the close of his life Jessup told her that he had made a will in which he had provided for both herself and the boy, -- but no such will has ever been found, and it is not only fair to presume, but for the purpose of this case as it stands must be presumed, that none such was ever made. In his intercourse with his own family, he denied his relationship to the boy, and with those most intimately connected with him in his business relations, and who, by reason of such connection, acquired some knowledge of what he was doing, he never admitted or communicated that he was doing anything more than "putting up" for the boy.

         It is said that as Jessup was never married, he was not bound to receive this child into his family, for he had none in which to receive it. But we do not so read the law. The language is: "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." If he has a wife, he can only receive it into the family with her consent; but if he has no wife, he must still receive it into his family, -- that is to say, in such family as he has, the child must be acknowledged and treated as his, -- at least, he must not deny to the members of such family that it is his.

         Under this evidence, we are forced to conclude that Gershom P. Jessup never did "publicly acknowledge this child [the respondent] as his own," or "receive it into his family," or "otherwise treat it as if it were a legitimate child." It follows that the judgment or order appealed from must be reversed, on the ground that the evidence is insufficient to justify the decision.

         So ordered.

         DISSENT:

         WORKS; BEATTY

         Works, J., dissenting. I dissent, for the reasons stated in the opinion filed on the former hearing of this case, written by me and concurred in by a majority of the court. No new point was made on the second hearing, and nothing additional, either of law or fact, was developed. The second hearing strengthened my views as expressed in the former opinion, and the manner in which the evidence is treated in the prevailing opinion of Mr. Justice Fox has served to confirm my first convictions.

         Beatty, C. J., dissenting. I dissent. Reargument and re-examination of this case have convinced me that our former decision was correct, and have not materially changed my [22 P. 750] views as to the validity of the particular grounds upon which it was based. It is conceded -- it would have been impossible to deny -- that the proof of respondent's paternity is complete. The only argument that can be made against his claim to inherit his father's estate rests upon a strict construction of the statutes, remedial in their nature, designed to secure to innocent unfortunates in his situation a just share of the rights to which they are by nature as fully entitled as are legitimate offspring. No doubt a strong argument can be built on this basis of strict construction against the decision of the superior court. But I adhere to the view so strongly put and so satisfactorily maintained by Justice Works in his opinion, that in cases of this kind the only strictness required is in proof of paternity. That being satisfactorily established by plenary proof, I think courts should lean strongly in favor of a finding that the father of an illegitimate child has done what every honest and humane man should be not only willing but eager to do, and what a just law would compel the unwilling to do.

         I also think it a wholly unauthorized construction of the statute to hold that the acts of recognition, acknowledgment, etc., necessary to legitimize a natural child, should be performed with the express intention on the part of the father of accomplishing that object. If the acts are in themselves such as the statute prescribes, I think they confer legitimacy without any reference to the intent with which they are performed. There is no danger to morality in recognizing the natural rights of illegitimate children as against their fathers, or other claimants of their estates. And there is no danger of encouraging the fabrication of spurious claims so long as strict proof of paternity is insisted upon.

         From this point of view, the evidence here is amply sufficient to sustain the decision of the superior court. Between the passage of the act of March, 1870, and the adoption of the code, Gershom P. Jessup, if the witnesses told the truth, did enough to legitimize the respondent, and no subsequent neglect could deprive him of the status so acquired.

The following is the opinion above referred to, rendered in Bank on the original hearing on the 1st of July, 1889:

         Works, J. -- Gershom P. Jessup, an unmarried man, died testate, leaving an estate valued at about one hundred thousand dollars. By his will he devised and bequeathed his estate to his brother and sisters. The will was admitted to probate, and letters issued to the executors named therein. The respondent, Richard Page Jessup, filed his petition in the court below, alleging that he was the illegitimate son of the deceased, and had been adopted by him, whereby he became his legitimate son and heir, and praying for a partial distribution of the estate to him. Upon a full hearing the petition was granted, and an order made distributing the whole of the estate to the petitioner, upon his giving bond to secure the payment of the debts of the estate and costs and expenses of administration.

         From this order the executors of the estate and the legatees under the will have appealed.

         The really controverted question in the court below was, whether or not the deceased had adopted the respondent as his son in such manner as to constitute him his heir.

         Some objections are urged in the brief for appellants to certain rulings upon the admission and exclusion of evidence. Most of the rulings complained of relate to evidence tending to show that the respondent was the son of the deceased. Counsel for respondent contend that these rulings, if erroneous, were harmless, for the reason that the paternity was expressly admitted by counsel in the court below. No such admission appears in the record, but the fact of such paternity is not disputed in this court, and the evidence of the fact, independent of any testimony claimed to have been erroneously admitted or excluded, is so clear and conclusive that the appellants could not have been injured by any of the rulings complained of.

         So far as the rulings apply to other material matters, we find no error for which the cause should be reversed.

         It is contended that the court below had no jurisdiction to make the order appealed from, for the reason that the non-resident legatees were not notified of the pendency of the proceeding. The court below proceeded under sections 1658 and 1659 of the Code of Civil Procedure. Section 1659 provides that notice of the application must be given to the executor or administrator personally, and to all persons interested in the estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator.

         Notice of the settlement of an account of an executor or administrator is provided for as follows: "The clerk must thereupon give notice thereof by causing notices to be posted in at least three public places in the county, setting forth the name of the estate, the executor or administrator, and the day appointed for the settlement of the account. The court or a judge may order such further notice to be given as may be proper." (Code Civ. Proc., sec. 1633.)

         It is not claimed that the notice expressly required by the statute was not given, but it is contended that this was a case in which the court should have ordered further notice to be given. Whether such additional notice shall be given or not, is a matter within the discretion of the court below, and in the absence of anything to show that such discretion has been abused, this court will not interfere. There was no such abuse of discretion here. One of the executors, who was a resident of this state, was a brother of the deceased and of the other legatees under the will, and his interest in the proceeding was identical with those of the other legatees. As to the non-resident parties in interest, an attorney was appointed to look after their interests, and did so throughout the proceeding. Their rights, if they had any, were thoroughly represented and carefully guarded by competent and able attorneys, who acted for them as well as the executors.

         Again, it is contended that the court had no jurisdiction to determine the question of the heirship of the petitioner in this proceeding; that the right to ask for partial distribution by an heir, where there is a will in which he is not named, must be confined to children born in lawful wedlock; and that he must assert his right to the estate, or any part of it, by a contest of the will, or must first establish the fact that he is an heir by proceeding under section 1664 of the Code of Civil Procedure. A distinction is thus attempted to be made between an heir born in lawful wedlock and one that has become such by adoption. Counsel contend that section 1386 of the Civil Code, which provides for the succession to and distribution of estates, does not apply to illegitimates, and in support of the position cite Estate of Magee , 63 Cal. 414; McCord v. Smith, 1 Black, 459; Hughes v. Decker , 38 Me. 153.

         These cases relate generally to the right of an illegitimate child to inherit, and have no application to a case of adoption by the father.

         Whether the petitioner was an heir, and entitled to distribution as such, was a question of fact to be determined by the probate court before an order for such distribution could be made. We see no reason for holding that the court could not consider and decide this question of fact, because his right of inheritance must be established by proof that he was an "illegitimate child of the deceased, and adopted by him, instead of proof that he was a child born in lawful wedlock." It is no more a contest of the will in one case than in the other. The fact of heirship, when established, must have the same effect upon the will, and the rights of the legatees thereunder, in both cases. The fact of heirship is one that must be found by the court in either case, and the jurisdiction cannot be denied, because the fact to be adjudicated must be established by evidence of a different kind where the claim rests upon adoption. It cannot be treated as a contest or revocation of the will of the deceased, because the property distributed goes to one not named therein.

         The position that this was a taking of property without due process of law cannot be maintained, for the plain reason that notice was given as required by law in such cases.

         The position that the heirship of the petitioner must be established in the manner provided in section 1664 of the Code of Civil Procedure before he can maintain a proceeding for partial distribution is not well taken. The proceeding provided for in the section referred to is not exclusive of the right to have the question determined at the hearing of the application for distribution. (Estate of Oxarart , 78 Cal. 109.)

         We come now to a consideration of the main issue in the case, viz., whether or not the finding by the court below that the petitioner was adopted by the deceased as his son and heir, is sustained by the evidence. At the outset, counsel for the appellant insist that the question is not one of conflict of evidence, but purely a question whether or not the facts proved constitute such acts and conduct on the part of the deceased, toward the respondent, as amounted to an adoption of him as his heir, and that the claim of heirship must be sustained by evidence clear, indisputable, and conclusive. The question whether the acts and conduct of the deceased, as testified to, admitting them to have been proved, amount to an adoption or not, is a matter of law to be determined by the court, but whether such facts are established by sufficient evidence, there being testimony directly on the point, is a question of the weight of the evidence, and the credibility of the witnesses, to which the well-established rule as to conflicting evidence must apply.

         The cases cited by the appellant, to the effect that where clear and conclusive evidence of a fact is required, the appellate court may inquire whether the evidence proves such fact to such a degree of certainty, no doubt state the law correctly; but in order to make them applicable here, it must be assumed that such a degree of certainty is required in this class of cases, which we think is a mere assumption without authority to support it. So far as the mere question of adoption is concerned, no greater degree of certainty in the evidence should be required in this than in other ordinary cases.

         The cases cited by counsel are such as call for exceptionally clear proof, for the reason that they seek to defeat a written instrument or the like. (Ford v. Osborne, 45 Ohio St. 1; Cummings v. Baars , 36 Minn. 350; Anthony v. Chapman , 65 Cal. 73.)

         In order that we may intelligently consider the evidence and the effect to be given it, we must first call attention to certain dates, and construe the several statutes bearing upon the question in dispute.

         The respondent was born March 20, 1866. The will of the deceased was executed August 28, 1867. The deceased died November 2, 1886. His will was probated November 22, 1886, and the respondent's petition for distribution was filed April 11, 1887. The law in force at the time of the birth of the respondent was the statute of April 11, 1850, which provided: "Every illegitimate child shall be considered as an heir of the person who shall, in writing signed in the presence of a competent witness, have acknowledged himself to be the father of such child ." (Stats. 1850, p. 220, sec. 2.)

         By an act approved March 31, 1870, general provision was made for the adoption of minors, and the statute of 1850 was expressly repealed. (Stats. 1869-70, p. 530.)

Section 9 of this statute related to the adoption of illegitimate children by either or both of the parents, and provided as follows:

         " Sec. 9. Either or both parents of an illegitimate child, or the father with the consent of his wife, or the mother with the consent of her husband, may acknowledge such child as his or their own by a document in writing, executed by either if single, or both if married, or by treating, receiving, or acknowledging him publicly as his or their own legitimate child; and such child, and the one mentioned in the foregoing section, shall, to all intents and purposes, be deemed legitimate from the time of its birth, and entitled to all the rights and privileges of legitimate offsprings."

         Section 3 of this act provided that an illegitimate child could not be adopted without the consent of its mother, and that the consent of a minor, if over twelve years of age, should always be necessary.

         This statute continued in force until January 1, 1873, when the Civil Code took effect. Chapter 2 of the Civil Code provides generally for the adoption of minor children in much the same terms as in the statute of 1869-70. (Civ. Code, secs. 221- 230.)

         The Civil Code, section 230, provides: "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."          Section 1387 of Civil Code, which is a part of the chapter on succession, provides: "Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; 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."

The appellants contend:

         1. That the statutes authorizing the adoption of an illegitimate child by the father should be strictly construed.

         2. That there could have been no adoption of the respondent under the statute of 1850 by any acts or conduct of the deceased toward him, for the reason that, under that statute, the only way in which such adoption could have taken place was by a writing to that effect, signed in the presence of a competent witness.

         3. That such acts as are shown to have been done prior to the enactment of subsequent statutes, enabling the father to adopt his illegitimate child without any written acknowledgment, cannot be considered in determining whether there was an adoption or not, because the statute cannot be construed to be retroactive, and the question of adoption is one of intent on the part of the father, and his acts and conduct, tending to indicate what his intention was, must be construed in the light of the statute in force at the time.

         4. That there could be no adoption under either of the statutes, or the code, without the consent of the mother, and that no such consent has been shown.

         5. That section 1387 of the Civil Code is a limitation upon section 230 as to the right of inheritance, and that under section 1387 there can be no inheritance except where there has been a written acknowledgment of the child.

         6. That the evidence is insufficient to prove an adoption of the respondent by the deceased.          The points stated are given in our own language, as the substance of the very elaborate briefs of counsel. We shall endeavor to dispose of each of them in its order.

         1. As to the strictness with which the statutory provisions referred to should be construed, we are not without authority. (Estate of Sanford , 4 Cal. 12; Pina v. Peck , 31 Cal. 361.) The cases cited are clearly to the effect that the statute, being in derogation of the common law, must be strictly construed. So far as the cases relate to the degree of proof required to prove the parentage of the alleged father, or that the claimant is his illegitimate child, we fully concur in the views expressed, but no further. If the proof of parentage is clear, then the rule to be applied should be the reverse of that contended for by the appellants. It should be the policy of the law to require the father of a child, whether legitimate or illegitimate, to assume toward it the duties and responsibilities of a father. (Hargrove v. Freeman , 12 Ga. 342.) This state has made no provision by which the paternity of an illegitimate child may be judicially determined, and the father compelled to contribute to its support. These unfortunates are left to be supported by the mothers, who are usually unable to maintain or educate them properly, or by public charity, and as a result many of them, whose fathers are amply able to support and educate them, become paupers and criminals. The legislature has, in a very slight measure, made amends for this anomalous state of affairs by providing that the illegitimate child may, so far as its legal rights are concerned, by acts of the father be made legitimate. The object is laudable, and should receive the aid and encouragement of the courts, and to that end the statute, so far as it provides how this being born again may be brought about, should be liberally construed. If the paternity of the child be the matter in dispute, strict proof of the fact should be required, but once the paternity is established, the statute should be liberally construed, so far as it affects the question of legitimizing the child. We may fairly assume that such was the legislative intent. The earlier statutes requiring a written acknowledgment were, as we have seen, strictly construed. This was followed by more liberal statutes, authorizing the legitimizing of this class of children, which clearly indicates that such construction was not consistent with the object and purposes of such legislation.

         In this case, as we have said, the fact of paternity was so clearly established by the proof that it is not controverted here. The only question, therefore, that this court is called upon to consider is whether or not, being an illegitimate child of the deceased, the respondent was by the acts and conduct of his father adopted as legitimate. As to this branch of the inquiry we hold that the statutes relating to the subject should be liberally construed. (Dickenson's Appeal , 42 Conn. 491; 19 Am. Rep. 553; see Commissioners' comments in note to section 230, Deering's Civil Code.)

         2. The point made that there could have been no adoption under the statute of 1850 is well taken, for the reason that under that statute a written acknowledgment was necessary, and none such was shown by the evidence. But it does not follow that the conduct and acts of the deceased, prior to the enactment of subsequent statutes, cannot be taken into account in determining whether or not there was an adoption, where, as in this case, as we shall show presently, such acts, conduct, and treatment were continuous from the birth of the respondent until the death of the deceased. If the acts relied upon had all taken place before the statute authorizing an adoption in that manner took effect, the position of counsel for appellant that the subsequent statute could not be construed to be retroactive, so far as to render proof of such acts sufficient to establish the fact of adoption, would be correct. (Estate of Pico , 52 Cal. 84; Brown v. Belmarde, 3 Kan. 41.)

         3. It follows that, conceding that the question of adoption is one of intention on the part of the alleged father, it was not only competent to prove such prior conduct on his part as tending to show the purpose and object of his subsequent treatment of the respondent, but the whole of his treatment of him, being continuous in its nature, must be taken into account in determining whether or not there was an adoption under the later statutes. If, taking his whole conduct toward and treatment of the child, it appears that it is sufficient to show an adoption, we think the case is made out, notwithstanding some of the acts proved appear to have taken place before the later statutes took effect.

         In support of the opposite view, counsel cite Morgan v. Perry , 51 N.H. 559; Brown v. Belmarde, 3 Kan. 41; Estate of Pico , 52 Cal. 84: Hartinger v. Ferring , 24 F. 15.

         These cases do not meet the question presented. In the Estate of Pico it was held that section 230 of the Civil Code could not be construed to be retroactive; that all of the acts shown, since the enactment of that section, were after the claimant had arrived at full age, and that as the statute only authorized the adoption of minors, the claimant was not within its terms, and no adoption was shown. This was precisely the same, in legal effect, as if no acts tending to show an adoption, after the statute took effect, were shown, which presents an entirely different question. In the case of Brown v. Belmarde the statute under which the adoption was claimed to have taken place was enacted after the death of the alleged father, and it was claimed that the statute related back. It seems unnecessary to say that this case is not in point. In the case of Morgan v. Perry the statute required marriage of, and recognition by, the parents. The parents of the claimant had married and taken him into the family forty years before the statute was enacted, and it was held that the statute did not apply. Hartinger v. Ferring, is to the same effect.

         We do not regard any of these cases as of any weight, except upon the simple question whether the statute can be treated as retroactive, in the sense in which we have held it to be so, as above stated.

         4. As to the point raised that there could be no adoption without the consent of the mother, we cannot agree to the proposition that such consent is necessary where the adoption is by the father, and especially where such adoption is the result of his conduct toward the child, and does not depend upon any formal proceeding. The provision of the statute must be held to apply to adoptions by persons other than the father. This is apparent from a reading of the statute of 1870, and of the provisions of the Civil Code. (Stats. 1869-70, p. 530; Civ. Code, secs. 221- 230.)

         Sections 1 to 8 of the statute of 1870 relate exclusively to adoptions by other persons than the father, and include the provision requiring the mother's consent. Sections 8 and 9, although parts of the same act, are, as to the procedure, essentially an act to themselves, providing for an adoption in an entirely different manner, not including such consent. This is made manifest by section 230 of the Civil Code, which provides in express terms that "the foregoing provisions of this chapter do not apply to such an adoption." One of the foregoing provisions is the one requiring the consent of the mother of the illegitimate child.

         In Estate of Pico , 52 Cal. 84, relied upon by the appellants, the sole question was whether a person not a minor could be adopted under section 230. This court said in that case: "Except for the concluding words of the section, 'the foregoing provisions of this chapter do not apply to such an adoption,' it would be clear, beyond controversy, that this section, like all those which precede it in that chapter, had reference to minor children. But taking the whole chapter together, we are satisfied that when section 230 declares that 'the foregoing provisions of this chapter do not apply to such an adoption,' it refers only to the procedure by which the adoption may be effected."

         This is in entire accord with the view we have taken. The provision for procuring the consent of the mother relates to the procedure necessary to effect the adoption, and is clearly within the language of the case cited.

         5. We cannot agree to the proposition that the provision contained in section 1387 of the Civil Code, that "every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child," is a limitation upon section 230, and excludes an illegitimate child, adopted as provided in the latter section, from the inheritance. If so, section 230 would be deprived of much of its force. One of the legal consequences of an adoption is the right to inherit from the adopted father. Section 1387, of the code is, no doubt, based upon the former provision of the statute requiring the adoption to be in the manner therein indicated, and has never been made to conform to the later and more liberal provision. But however this may be, the provision in section 1387, that certain illegitimates may inherit, cannot be held to exclude others, who have been adopted as provided by law, from the right of inheritance. Section 230 expressly provides that upon the adoption of a child as therein provided, it shall "be deemed to be legitimate for all purposes ." (See Estate of Wendell , 57 Cal. 484.)

         6. In order to a proper understanding of the comments we make upon the evidence, it is necessary to state its substance. The testimony on the part of the respondent tended to show that the mother of the respondent resided in Marysville, in this state, and was, while residing there, on terms of intimacy with the deceased; that she came to San Francisco, and was by him placed in charge of a nurse, an old colored lady, who, it appears, was a respectable, Christian woman. Soon after being placed with the nurse she was confined, and gave birth to the respondent. The deceased visited her frequently during her stay at the house, paid all of the expenses consequent upon her sickness, and after the birth of the child the mother left the city, and the deceased took the entire charge of the child from that time on, leaving it with the nurse. He provided for its maintenance, appeared to be very fond of it, took it out with him frequently when it was young, to places of amusement, took great pride in seeing that it was well dressed, paid the nurse, and an extra nurse employed by her, liberally, for taking care of the child, and paid all of the doctor's bills and other necessary expenses. After the child became old enough, he sent it to a private school, paying considerable sums of money for that purpose, and paid all of its necessary expenses. He caused a picture of it to be painted at an expense of one hundred dollars, and kept the same in his room. As to his declarations with reference to the child, we set out the evidence of various witnesses as to the same without giving names, lettering the testimony of each witness separately.

         ( a ) "He said: 'This is my son, doctor, that I had by Miss --. Isn't he a nice-looking boy? I think a great deal of that boy, and I am going to raise him as my boy, and look after him, and educate him, and make a man of him, and he shall be my heir.' After that we had some talk, and I asked him on one occasion whether the boy was his son. He said he had him educating him, and also told me that Miss -- had married and done well, and he was very glad of that, as it got her out of the scrape, and him too. Jessup said also that he did not want the mother to see the boy, because her parents would find it out, and he did not want them to find it out; but he wanted to keep the boy as secret as he could from the parents, and it would save the reputation of the young lady. He told me that the boy had grown up and was most a young man, and he was going to make him his son and heir. He so told me more than once, and within the last five years, but I am unable to state when or where."

         ( b ) "We had some further conversation after that; some conversation about the boy. He had grown to be four or five years old. Jessup knew that I knew all about the affair. We used to talk about it frequently. I recollect he brought the boy up to my place to have his teeth taken out, which I did."

         ( c ) "My mother spoke to him about Miss --, and wanted him to marry her; told him that Miss -- was feeling very bad, and that he had confessed to my mother that he was the father of the child. He said: 'Yes; I know I am. She was a good girl when I met her, and I caused her fall. I am the father of the child, and I intend to marry her.' Mr. Jessup called quite often; I cannot tell the number of times; two or three times a week, I should think; oftener after the child was born. He was not there more than twice before. He paid forty dollars a month for the care of Richard; that was for the board exclusively. As for his clothing, he wanted him dressed in the best. He said that he was able to pay for it, and he wanted him dressed nicely, and always to look nicely. He did not want him to wear calico dresses. He wanted him dressed in white always. He wanted him kept in white, and whatever the expense was he would pay it. He had plenty to take care of Richard with, and he intended to take care of him, and wanted him always to look nice. He visited the child, after the mother went away, quite often. I cannot tell just how often, but very often. He visited him quite often at my mother's house, before the child went to Petaluma. I cannot tell how often. If the child was awake when he came, he would take him up and play and talk with him; if he was not awake, he would wait until he awoke. He would call him his boy and many other affectionate names. He would take him up in his arms and say, 'Come to your papa; come to your daddy'; and hold him up and ask if he was not a fine boy. He always seemed very pleased if mother said that he looked like his father. He was very fond of him. He used to take him out; would come very often, and used to take us down to North Beach; for Richard, as a baby, was very fond of the birds and monkeys and wild animals that were kept down at North Beach at the time, and his father, learning of his fondness for them, would take us down there to visit those animals, and he would buy nuts and candy for Richard to give them. The baby was rather sickly from the time it was born, and needed a good deal of care, and Mr. Jessup told my mother whenever she thought it was necessary to get a physician, and take good care of him. He was called Richard by his father's request. He said he wanted him called Richard after a uncle of his, a brother of Mr. Jessup's who, Mr. Jessup said, was very wealthy. He said he was dead, and he would receive his estate, and that whatever he got would belong to Richard. He was leaving it to Richard, and he intended to leave him all that he had, and he would like to have him named after his uncle. He said: 'If Richard behaves himself, and does what I want him, he will not be sorry for it'; said he wanted to make a man of him; he wanted him well educated; fretted, I think, that Richard did not want to remain at school. He said that Richard was all that he had, and there were only the two of them, and that he ought to try and make him happy, and do just as he wanted him to do. He thought he ought to try and make him happy, and he would do anything for him, and make a man of him, and after his death he would have 'all that I have.' He further said he wanted Richard to work and be self-sustaining. He wanted him to be independent, but at the same time he did not want him to want for anything. He told me his object in having Richard work was that he wanted him to learn the value of a dollar, because he wanted him to know how to take care of it; for, he said, 'when I die what belongs to me will fall into Richard's hands, and I want him to know how to take care of it.'"

         ( d ) "I knew Gershom P. Jessup in his lifetime, about ten or twelve years, probably. We were friends. Never had any conversation with him directly about his family. With regard to the boy I had a conversation once. One of my sons was with me, and I introduced him to Mr. Jessup, and he said to me, 'I have a son that I am educating and bringing up.'"

         ( e ) "I painted the portrait for Mr. Jessup. During the process of painting the picture Mr. Jessup called at my studio, and seemed quite interested in the portrait; I cannot exactly state how, except that he came up in the room and expressed himself pleased with it."

         ( f ) "I said, 'You have not anything to detain you here; have not got any family, have you?' He said, 'I have got a son here.' He spoke of having two sisters in the East, and his brother here. He said he did not expect -- well, he said, 'the way I feel, and the way this thing [referring to some litigation] worries me, I do not think I will last long.' He said he had made a will providing for his sisters, his brother, and for his son."

         (g) "The boy always accompanied him to the store. I do not remember any statement he ever made with reference to the boy as to who he was. He would say, 'I want a suit for the boy.' The way he spoke I thought it was his boy, though I do not remember his saying whose boy it was. He selected the best goods, and made no objection to the price. I think I last made an overcoat, I cannot remember; it must have been ten or twelve years ago."

          (h) "I knew Mr. Jessup in his lifetime. At one time he came and asked me the fare to San Diego. I told him, and asked him whether he was going. He said no; he was going to send some one. He said he was going to send a boy. I said, 'What boy?' He said, 'I have got a boy as big and as old as yours.' He did not tell me where the boy was. He said he had been to college, and was going to send him to a ranch on a vacation. He asked for the ticket to be made out to Richard Miller, and it was so made. He told me that the ticket was for his boy, -- his son. I asked him, 'Why do you make it out for Richard Miller?' Well, he said that he wanted to avoid trouble with a woman, or the mother, as some people at the back of her, by talking with her, were making trouble."

         ( i ) "Q. Did you hear the boy call his father by any names? A. Papa. Mr. Jessup's manner was very affectionate. He would take the boy and caress him, and kiss him, bring him fruits, cakes, lady-fingers, and be very fond of him."

         ( j ) "He said that she had been married, and that he did not think that he ought to look out for her any more; that he had this heir, -- this boy, rather, -- and he had looked out for him from his infancy and intended to look out for him, but he did not think he should be bothered with the mother. He said that he was giving the boy a schooling. He had looked out for him from infancy. I don't think he told me who the child was with. He said he had him off at school. I think he told me that the mother had nothing to do with the boy; that he had taken care of him; that is my recollection. I said: 'Mr. Jessup, that is my boy.' He said: 'My boy is as old as your boy.' I said: 'Your boy ought to be three or four years older than mine, I don't know but more, and my boy is fully sixteen years'; and he said, 'He is.' I asked him: 'Where is your boy? What have you done with him?' 'Well,' he said, 'he is at work; it is well enough for parents to learn their boys to go to work.' I said: 'I agree with you; that is a good idea.'"

         (k) "He said: 'That is my boy.' He had a little boy with him. I judged in my own mind that it was his son at the time. He said: 'What do you think of him?' I took him to be his son, for he looked upon him with such pride and affection, as if he must be his child."

         ( l ) "He spoke to me several times about his family; about having a son. I told him to bring him up one time, I should like to see him. That was about five years ago; may be a little longer. He brought him in afterwards a couple of times, and they had dinner together. I says to Mr. Jessup: 'You cannot deny that boy; he is the very picture of you.' Jessup said: 'The boy puts me to a good deal of trouble sometimes now. It don't matter; I will never forget him.' He said he had property on Stevenson Street and on Clay Street; some property that he said he would make over to him. He was sick then a great deal. He could hardly walk sometimes. He often used to come over. He would say, 'I am not able to walk.' He told me the boy was in the country with friends, and that he loved the boy dearly. We were then talking about children. I had children myself. He said if the boy would do right, and all this and that, he would give him everything he had got. He said that he did not want him with him; that he would keep him in the country. He would be better off with his friends than he would be with him."

         ( m ) "I saw the child with him. The child was dressed in a very handsome black suit, with a black cap, and had long hair. I was going down Market, and he was going up with the child by the hand. I asked: 'Is that the first production? and are there any more of them?' He said: 'No; it was the first one. Don't you think he looks like me?' I always understood him to say that he had the child in good hands, or was taking the best care of him. I do not know that I ever spoke to him about the boy more than five or ten or twenty times during our couple or three years' acquaintance. He would speak to me about how the boy was, and about how he was taking care of him. He used to speak about the boy, as 'little Dick,' or 'my little Dicky,' or 'my little boy.'"

         ( n ) "One day he asked me if I know his boy; I asked him who his boy might be. He said, 'Dicky Jessup.' I said I did not know him by that name. He then said: 'He may go over here by the name of Miller; he is hiding over here.' 'Yes,' I said, 'I know him.' He said: 'If you see him, tell him to come over to see me, corner of Fifth and Market streets. I am residing there, and you will confer a favor upon me.'"

         ( o ) "I knew the boy, who gave me his name as Richard Jessup Miller. He was sent to me from San Francisco by A. A. Denning about six years ago, when I was living on my ranch. He told me his name was Richard Jessup, but his aunt made him call himself Richard Jessup Miller. That was when he first came to my place. He was with me about six months, and then went back to San Francisco. I received several letters from Mr. Jessup. He send me money for the boy. He told me to be kind to him, and make a man of him. He returned to San Francisco at the request of Mr. Jessup, who sent him money to buy him clothing and buy him a ticket."

         ( p ) "He said: 'O, no; there no mystery about the child. I have always taken care of the child, the boy, from his birth. I have always done for him, and always will.' I think he told me that he had him at Washington College, over at Alameda, and said: 'I have done for him. I have had him down in Lower California. I have spent large sums of money on him. I have always taken care of him, and always shall.' He seemed to want to impress on my mind the fact that he wanted to make the boy self-sustaining, self-supporting; to show him how to save money, how to make money."

         ( q ) "I saw Mr. Jessup once with a little boy. I do not know how old. I should think about five. He was dressed in a kind of fancy suit. I think he said: 'This is my boy.' I don't know about the word 'son.' He said the little boy or his boy -- meaning his son, I presume. He did not say his son, I do not think. I said he looked very much like him."

         ( r ) "He told me that he had a young boy going on two years; those were the words he used. I will not be positive now whether he said boy or son."

         (s) "I got to speaking to him, -- was very well acquainted with him, -- and I told him I thought he was very well fixed for wealth. He said, 'Yes, I am well fixed.' I said, 'I suppose you have got fully one hundred thousand dollars.' He said yes, he had fully that much. I heard him speak about his son at different times; I forget the date. I said, 'When you die, you must remember me,' in a kind of joking way. 'Well,' he says, 'I have got a son that will come in for a good part of that.' Then I commenced to laugh at him. I says, 'How is that you have a son, and have no wife.' He said, 'Can't a man have kids, and not have a wife?' On one occasion he asked me if I had any family beside my little girl. I said none, with the exception of two brothers and a sister, aged fifteen, seventeen, and nineteen. 'That,' said he, 'is the age of my boy.' This was in 1885. On my expressing my surprise, he said, 'O yes; I have a son; he is across the bay.'"

         ( t ) "He said that he had a fine boy by her, and that he was going to make a Dick Jessup of him. He told me the boy was in school. I cannot tell which one. He spoke about his boy that he had put at school; said that he was a fine boy, but he believed he was going to make him a great deal of trouble."

         In opposition to this array of evidence, tending strongly to show an adoption, it appears that the respondent did not go by his father's name; that he lived with a colored woman, daughter of the old nurse, and was brought up with her children and went by her name. But it appears from some of the evidence above that this might have been, not for the purpose of concealing his parentage, but through the fear that the mother of the boy, or some of the family, might assert some claim to him.

         Again, it is shown that the deceased never took the boy into his family. But the evidence shows clearly that he never had any family, or any place that could be called a home. He roomed in various places in the city, and a great part of the time lived with a mistress, the wife of another man. It was to his credit, and bears strong evidence of his regard and affection for the boy, that he was not willing to subject him to the influences that had contaminated his own life.

         It was also shown by a number of reputable witnesses that they had known the deceased with more or less intimacy, had met him in business, at the clubs, and at lunch, and never heard him speak of having a son. But this is testimony of a negative kind, and entitled to but little weight. Besides the fact that it appears that the deceased was a reticent man, not given to talking about his affairs, he would not be likely to discuss such a matter, under such circumstances, and if he had, the witnesses would not be likely to remember it.

         There is evidence tending to show that the respondent was christened under the name of Richard Page Jessup, and that this was done at the request of the deceased, but as to the latter the evidence is conflicting.

         Was this evidence sufficient to show an adoption? This depends, in part, upon the construction to be given to the two statutes in force during the time covered by the testimony.

         The appellants contend that, under section 9 of the statutes of 1870, which provides for the adoption of a child "by treating, receiving, or acknowledging him publicly as his or their own," should be construed to mean receiving and acknowledging, and that both must be proved to show an adoption. As we view the evidence, it is unnecessary to determine this question. If the testimony is sufficient to establish one of these requisites, it is equally sufficient to prove the other.

         But it is further contended that the requirement that he should publicly acknowledge him as his own legitimate child is not established by proof that he acknowledged him openly to various persons as his son; that a public acknowledgment, as here used, means some formal acknowledgment of him as his legitimate son, in an open and public way, and that it is not enough to show that he made such acknowledgment to friends and acquaintances, no matter how many.

         We do not so understand the statutes. To establish his right to inherit, a claimant must prove two things: 1. That he is the illegitimate child of the alleged father; 2. That he has been openly and publicly acknowledged and received, and treated as such. But in order to avoid imposition and fraud, the statute requires that these things shall be established by certain proof. Under the statute of 1870, it must be proof of his "treating, receiving, or (and ) acknowledging him publicly as his own legitimate child ." That is to say, he must treat, receive, or (and) acknowledge him as if he were his own legitimate child; and in order that the proof may be made by disinterested parties, and fraud and imposition avoided, all of these must be done openly and publicly, and not secretly.

         But this does not mean, as counsel for appellants seem to think, that the alleged father must cry out from the house-tops, "This is my illegitimate son, that I now and here publicly acknowledge as my own legitimate son," or go about with a lie upon his lips, saying, "This is my legitimate son."

         Section 230 of the Civil Code, although differently worded, is in effect the same. The language is, "by publicly acknowledging it as his own, receiving it as such into his family, and otherwise treating it as if it were a legitimate child ."

         Undoubtedly the most satisfactory way of establishing the necessary facts is by proof that the claimant has been received into the family, and given the family name.

         But this is not necessary where there is sufficient proof of a reason for not having done either, as we think is shown in this case. The deceased could not take the respondent into his family because he had none. He did not openly give him his name for the reason that he feared the mother or some of her family would attempt to take him from him. But he did give him the christian name of a favorite brother, and expressed the hope that he might be able to raise him to be like his uncle. In other respects he treated him as such a man might be expected to treat his legitimate son; and that he openly and publicly acknowledged him to be his son there can be no doubt, if the witnesses who testified to the facts were to be believed. Whether they were worthy of belief or not, was for the court below to determine. He performed toward the respondent the duties which would have devolved upon him as the father of a legitimate child, viz., those of protection, maintenance, and education. Therefore he treated him as his legitimate child.

         When the status of the respondent was thus fixed, it could not be affected by subsequent acts of the deceased, by failing to name him in his will, or otherwise. The statute, together with such acts done under it as will constitute an adoption, fix the status of the illegitimate child irrevocably. (McGanigle v. McKee , 77 Pa. St. 81; Hosser's Succession, 37 La. Ann. 839.)

         It is said that the statutes under which the respondent claims to have been adopted were enacted after the will of the deceased was executed, and therefore the adoption, if proved, cannot affect the rights of parties named as legatees in the will, but the will gave no vested right at the time of its execution, and for that reason, if for no other, the point is not well taken. (Sewall v. Roberts , 115 Mass. 262.)

         The evidence is sufficient to sustain the order of distribution.

         Order affirmed.

         Sharpstein, J., Paterson, J., and Beatty, C. J., concurred.

         McFarland, J., and Thornton, J., dissented.


Summaries of

In re Estate of Jessup

Supreme Court of California
Nov 30, 1889
81 Cal. 408 (Cal. 1889)

rehearing may be granted to correct “mistake of law” in court's opinion

Summary of this case from Alameda County Management Employees Assn. v. Superior Court
Case details for

In re Estate of Jessup

Case Details

Full title:In the Matter of the ESTATE OF GERSHOM P. JESSUP, Deceased

Court:Supreme Court of California

Date published: Nov 30, 1889

Citations

81 Cal. 408 (Cal. 1889)
22 P. 742

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