No. 2394 | Nev. | Oct 15, 1919
Lead Opinion
By the Court,
Charles F. Forney, long a resident of Truckee,J Cal., died leaving on deposit in certain banks in Reno, Nevada, the sum of $4,500. The public administrator of Washoe County, Nevada, qualified as administrator of the estate, and in due time filed his final report and petition for distribution, which alleges:
“That the whole of said estate is the separate property of said decedent, and that your petitioner is informed and believes, and therefore alleges the fact to be, said decedent at the time of his death left him surviving no wife, nor father, nor mother, nor sister, nor brother, nor any children, nor ancestors, nor descendants, whomsoever, and left him surviving no heir or heirs at law or next of kin whatsoever, and, according to the best information and belief of your petitioner, all the rest, residue, and remainder of said estate should escheat herein and be distributed to the State of Nevada pursuant to the provisions of law.”
On the 10th day of April, 1915, one Gladys Pohl, by and through her guardian ad litem, filed in the matter
Upon the hearing, the court found the facts to be as alleged in the petition of said guardian, and entered a decree accordingly. From the decree, and from an order denying a motion for a new trial, the administrator and the state have appealed.
A child’s right to inherit depends upon its status. There must be some fixed place where the status of the child can be established. What better place than the residence of both parties? Common sense and reason both so dictate. The status of a child is not an ambulatory thing, which can be shifted from place to place to suit any condition that may arise. If any other rule prevailed, and Forney had left money on deposit in several states, the minor might be permitted to lay claim to the deposits in all of them except the state in which she and Forney had lived during their joint lives, which
“It is a general principle that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in the other’s property, is fixed by the law of the domicile, and that this status and capacity are to be recognized and upheld in every other state, so far as they are not inconsistent with its own laws and policy. Subject to this limitation, upon the death of any man, the status of those who claim succession or inheritance in his estate is to be ascertained by the law under which that status was acquired; his personal property is indeed to be distributed according to the law of his domicile at the time of his death, and his real estate descends according to the law of the place in which it is situated; but, in either case, it is according to those provisions of that law which regulate the succession or inheritance of persons having such a status.”
. This rule is recognized by and stated in Woerner’s American Law of Administration (2d ed.) at section 565, as follows:
“It has been repeatedly stated that the law of the domicile governs the distribution of personal property, so that it is unnecessary to cite authorities here in support of this principle.”
It is said in 1 Cyc., p. 931:
“The law of the domicile of the parties is generally the rule which governs the creation of the status of an adopted child.”
There may be some exceptions to the general rule laid down, but these exceptions are made in favor of persons. domiciled in the state in which the property is situated. 22 R. C. L., p. 42, sec. 8.
In opposition to the rule laid down, counsel for respondent rely upon the cases of Hood v. McGehee (C. C.) 189
“Each state has exclusive jurisdiction of the regulation of the transfer and descent of real estate within its limits. It would be competent for the legislature of Alabama to deny the right to inherit real property to children adopted in its own courts by its own procedure. It would be competent for it to confer such rights on children of its own adoption and deny it to those of the adoption of foreign states. This is what Alabama legislation, as construed by its court of last resort, has accomplished.”
In the Loyd case the question here presented was not considered nor disposed of. In the case of Blythe v. Ayres the child sought to recover under the laws of California, the state in which the father had lived, and where all the declarations and' acts relied upon to establish legitimation had taken place. In the opinion we find nothing repugnant to the rule stated. Brown v. Finley seems to sustain the contention made for it, but it is not in accord with the general rule, and does not appeal to our sense of what the law ought to be.
“The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with*234 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.”
This statute has been construed by the Supreme Court of California in several cases, and in the matter of the Estate of De Laveaga, 142 Cal. 158" court="Cal." date_filed="1904-02-09" href="https://app.midpage.ai/document/cebrian-v-de-laveaga-3298846?utm_source=webapp" opinion_id="3298846">142 Cal. 158, 75 Pac. 790, it was held that the existence of a family into which a child could be received was essential to an adoption, and in Estate of Gird, 157 Cal. 534" court="Cal." date_filed="1910-04-04" href="https://app.midpage.ai/document/gird-v-bennett-3302042?utm_source=webapp" opinion_id="3302042">157 Cal. 534, 108 Pac. 499, 137 Am. St. Rep. 131, the court, in speaking of this question, said:
“Different views have been entertained by justices of this court whether the existence of a family into which the child can be received is essential to an adoption under this section; but that question has been finally determined in the affirmative by this court in Estate of De Laveaga.”
In addition to the California cases cited in the briefs of counsel, we call attention to In Re Walker’s Estate (Cal.) 181 P. 792" court="Cal." date_filed="1919-06-05" href="https://app.midpage.ai/document/estate-of-walker-3298116?utm_source=webapp" opinion_id="3298116">181 Pac. 792; In Re McNamara’s Estate (Cal.) 183 P. 552" court="Cal." date_filed="1919-08-25" href="https://app.midpage.ai/document/mcnamara-v-mcnamara-3309896?utm_source=webapp" opinion_id="3309896">183 Pac. 552, decided August 25, 1919. There is now pending and undecided before the Supreme Court of California the case of In Re Estate of Baird (No. S. F. 8995), in which the same question is involved. What constitutes a “family” has been a question of much concern before the Supreme Court of California.
But it not being contended that Forney had a family into which he could have taken the child, or that he did take her into his family, we are compelled to direct a reversal of the order and judgment appealed from, and that a new trial be granted; respondent to have leave to amend his petition, as he may be advised.
The judgment and order appealed from are reversed.
Dissenting Opinion
dissenting:
The State of Nevada ánd the public administrator of Washoe County, Nevada, through their joint and several notices of appeal, have appealed to this court from a
Before the State of Nevada can successfully ássert its
Escheat in this jurisdiction depends upon positive statute. Like forfeiture, it is not favored. 10 R. C. L. 613.
Our statute provides:
“If any person shall die, or any person who may have died, within this state, seized of any real or personal estate, and leaving no heirs, representatives, devisees or legatees capable of inheriting or holding the same, and in all cases where there is no owner of such estate capable of holding the same, such estate shall escheat to and be vested in the State of Nevada.” Rev. Laws, 6130.
This statute dates back to territorial days. It was the territorial law (Stats. 1861, p. 240), which was carried into the state law, and has remained on our statute books unchanged by amendment or supplement down to the present time.
The case as made by the state clearly falls within the purview of the first clause of the section that deals expressly with heirs capable of inheriting or holding the estate of a person who dies or died within the state. It is useless for me to enter upon an exhaustive discussion of this legislation. Its reason and purpose are obvious.
The motives and conduct of these high officers — the
Entertaining these views, it is not necessary for me to discuss the motion to dismiss the appeal of the public administrator. I have, however, a strong impression that he is in a much better position to appeal from the judgment and decree than the State of Nevada.
Rehearing
On Petition for Rehearing
By the Court,
Counsel have filed a petition for a rehearing. It is an earnest plea in behalf of the unfortunate child; and, were it our duty to yield to the impulses of humanity, rather than to be controlled by cold principles" of law, we would likely heed the same. But while all law is bottomed upon the theory that it works justice, there is no delusion that any abstract rule of law can in all cases work out results which satisfy our humanitarian instincts. The Creator, in establishing the laws of nature, well knew that the rain would fall upon the just and the unjust alike, and that, while the operation of every law of nature would injure some, the great masses of humanity would benefit thereby. So, in this case, we must lay down a rule which will be disastrous to the petitioner, but which, in the course of years, will effectuate justice in the great majority of cases. In
Counsel, after conceding the necessity of determining the status of Gladys Pohl, say that it must be determined under the law of this-state. That is the sole question before the court. Upon our first consideration of the case, we were convinced as to the law which controls in establishing the status of the child. It seemed so- clear to us at that time that we were, perhaps, somewhat lax in reasoning out the question. In response to the contention urged upon us, let us ask: Why should the question of the child’s status be determined under the law of Nevada? This leads us to ask: What is a status? Is it an imaginary thing ? Is it something which comes into existence to meet a temporary need, and which, when it has served the temporary purpose, may be abandoned ? Or is it something which is permanent and enduring and which continues to exist to meet changing conditions and new situations in life, defying the will of the adopting parent himself, and even a change of the law ? A child’s status is nothing more nor less than its relationship to some other person, or to the state. We are aware that some courts seem to have had trouble in disposing of the question before us, but it seems clear that the trouble was due to a superficial, rather than to a careful, consideration of the underlying reasons which led up to the passage of statutes permitting the legitimation of bastards by the father, such as exist in California and Nevada.
The logic of counsel’s argument, is to make the status of the child turn upon the fact that Forney left personal property in this state. It seems to us that they have put the cart before the horse. The right to inherit depends upon the child’s status, and not its status upon the existence of an estate in Nevada. If counsel’s theory is correct and were carried to its logical conclusion, a situation might present itself wherein a child would be legitimate in Nevada and enjoy all the rights and privileges thereof, and be illegitimaté in California, for the reason that the California statute pertaining to the legitimating of an illegitimate requires things not required in Nevada, while it is the policy of the law to hold legitimate everywhere a child once legitimated.- 5 R. C. L. 920.
And, further, if counsel’s theory is correct, a father,
Professor Minor, in his Conflict of Laws, in discussing the question as to what law governs in fixing the status of a child, says, at section 100:
“Two points should be noticed in this connection, which will aid us in determining the proper law in this case. The first is that the legitimation of a bastard is the creation of a status which is beneficial to him, and it should be presumed in his favor whenever adequate reason exists for such a course. The second is that this*241 beneficial status cannot be accorded the infant at the expense of a change of status on the part of the father not warranted by his domiciliary law.
“Applying these two principles, it follows that the law of the father’s domicile at the time of the legitimating act will be the proper law to determine the status of both parties. If by that law the act in question' legitimates the bastard, the beneficial status thus created will in general be recognized everywhere, including the bastard’s domicile, though by the law of the latter state the act would not suffice to create a legitimation. On the other hand, if by the law of the father’s domicile legitimation is not'the result of the act claimed to have that effect, though under the bastard’s domiciliary- law legitimation would result therefrom, the status of legitimation should not be conferred upon the bastard, for that would be to subject the status of the father to a law to which it is not properly subject.”
The Supreme Court of Massachusetts, in Irving v. Ford, 183 Mass. 448" court="Mass." date_filed="1903-05-23" href="https://app.midpage.ai/document/irving-v-ford-6428237?utm_source=webapp" opinion_id="6428237">183 Mass. 448, 67 N. E. 366, 65 L. R. A. 177, 97 Am. St. Rep. 447, quotes the above language approvingly; and adopts the rule therein stated. And it was said' in Richmond v. Taylor, 151 Wis. 633" court="Wis." date_filed="1913-01-07" href="https://app.midpage.ai/document/richmond-v-taylor-8190778?utm_source=webapp" opinion_id="8190778">151 Wis. 633, 139 N. W. 435:
“So, also, the law of the domicile of the person making the written acknowledgment, and not that of the domicile of the child or the mother, governs the question of legitimation.”
See, also, 7 C. J. 951.
As to the case of Wolf v. Gall, 32 Cal. App. 286" court="Cal. Ct. App." date_filed="1916-12-09" href="https://app.midpage.ai/document/wolf-v-gall-3289384?utm_source=webapp" opinion_id="3289384">32 Cal. App. 286, 163 Pac. 347, we simply wish to say that we have never attached any weight to it, so far as the question in this case is concerned; for, no matter what significance might be given it under ordinary circumstances, the Supreme Court of California, on appeal (32 Cal. App. 286" court="Cal. Ct. App." date_filed="1916-12-09" href="https://app.midpage.ai/document/wolf-v-gall-3289384?utm_source=webapp" opinion_id="3289384">32 Cal. App. 286, 163 P. 351" court="Cal." date_filed="1917-02-13" href="https://app.midpage.ai/document/dodds-v-spring-3302587?utm_source=webapp" opinion_id="3302587">163 Pac. 351), held that it was not entirely in accord with its reasoning. In any event, we would hardly be justified in assuming that an inferior court can reverse a superior one; and, so far as we are advised, the law as laid down in the Blythe case is still good in California.
The petition for rehearing is denied.