Estate of Sandford

| Cal. | Jan 15, 1854

Mr. Justice Heydeneeldt

delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

By the 2d section of the Act to Eegulate Descents and Distribution it is enacted, “ 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.”

By virtue of this Act, Louisa Sandford, by her guardian, claims to be the sole heir of Samuel Sandford, deceased, and a writing, signed by Sandford, is produced in evidence, to show the necessary acknowledgment of paternity.

After a careful consideration of the language of this instrument, I am satisfied that it does not amount to such an acknowledgment as is contemplated by the statute. The original agreement is in the Spanish language, and three words are used in reference to the child: they are, “Niña,” “chiquita,” and “creatura.” According to the authority of lexicographers, neither of these words necessarily mean child, in its sense- of relation to a parent, and nowhere in the agreement is it said that Sandford is the father. . But even taking the liberal translation furnished by counsel, and then we have, as the only expression on which any stress can be laid, “We bind ourselves for one year to nurse a female child of Samuel Sandford.” And to this may be added, for any strength it may give, the words,

‘ ‘ Samuel Sandford can take his creature whenever he pleases.” It will be seen that the object of the contract was to provide for the care of the child. The same language would doubtless have been used, if Louisa had been the adopted child of Sandford, or entrusted to his care by a relative or friend, or an orphaned object of his temporary benevolence.

The statute is one which enables valuable benefits to be conferred, and grave changes to be made in personal relations. It is in derogation of the common law, and [14] must therefore be * construed with strictness. To entitle one to claim under it, the evidence adduced ought to be clear enough to exclude all except one interpretation. ■ Nor do we, in deciding the case upon this ground, intend to intimate that any writing, containing the evidence required, would be sufficient to create an heir under the statute, where it appears, upon the face of the instrument, that there existed no such object or intention at the time it was made. That question is not necessary to be considered here, and is therefore left for some future adjudication.

Judgment affirmed.