195 P. 1055 | Cal. | 1921
This appeal is from a judgment of the superior court of Fresno County which revoked, vacated, and set aside letters of guardianship upon the person of Clarence Santos, a minor. The said minor, an infant about three years of age, is the youngest of six children — brothers and sisters — orphaned by the death of their mother and father in the month of December, 1918. By the terms of the last will and testament of the father, who died subsequent to the death of the mother, property of the value of between twenty and thirty thousand dollars was left to the six children, share and share alike, and, in January, 1919, A.J. Santos, a brother of the father, was appointed and qualified both as executor of the will and as guardian of the persons and estates of the six minor children of his deceased brother. Shortly thereafter, J.V. Santos and Maria C. Santos, his wife, who is an aunt of the orphaned children, petitioned for leave to adopt the said Clarence Santos, the minor in controversy. Consent to such adoption was given by certain relatives of the child, but A.J. Santos, the guardian, refused to consent and appeared at the hearing, in person and by counsel, for the purpose of objecting to the making of the order of adoption. The court overruled the guardian's objection and granted the petition for adoption.
Following the entry of the order for adoption, said J.V. and Maria C. Santos, the adopting parents, instituted the present proceeding for the revocation of the letters of guardianship of the said Clarence Santos. After demurrer and answer, testimony was taken from which it appeared that the eldest of the six orphans is fourteen years of age, that A.J. Santos, the guardian, has children of his own living with him in addition to his six wards, and that his wife has left him and the children are being cared for by himself and a hired woman. It further appeared that the petitioners have no children of their own. Among other things, the court found that the moral and physical wellbeing of the minor Clarence Santos would not be promoted *129 and subserved by his continuing to reside with the guardian, that it would be for his best interest to reside with petitioners, and that, by reason of the relationship created by the adoption, it was no longer proper that the minor should remain under the guardianship of said A.J. Santos. Accordingly, the order, from which the present appeal is taken, was made, whereby the letters of guardianship of the person of said minor, Clarence Santos, were revoked and A.J. Santos, appellant, was required to surrender the person of said minor to J.V. and Maria C. Santos, respondents.
It is apparent from the record in the instant case that the order revoking appellant's letters of guardianship of the person of the minor was made solely for the reason that it was considered that such guardianship had been rendered unnecessary by respondent's adoption of the infant. It follows, then, that the efficacy of the judgment of removal is contingent upon the validity of the order of adoption, and, if the order of adoption is void, the judgment of removal must necessarily fall, together with the foundation upon which it rests. Consequently the initial question raised upon this appeal is whether or not the court was without jurisdiction to make the order of adoption by reason of the fact that the minor was in the custody of a duly appointed guardian or of the refusal of the guardian to consent to the adoption. If these facts constitute jurisdictional defects in the adoption proceedings, the said proceedings may be collaterally assailed, for the said facts appear upon the face of both the petition and order for adoption. (Forbes v. Hyde,
[1] In considering the question of the jurisdiction of the court to make the order of adoption, we must look to the sections of the Civil Code dealing with adoption, for the proceeding of adoption "exists in this state only by virtue of the statute which . . . expressly prescribes the conditions under which adoption may be legally effected." (Matter ofCozza,
[2] Wherever possible, such a construction should be given adoption laws as will sustain, rather than defeat, the object they have in view. (Estate of McKeag,
[3] While the code sections above mentioned do not expressly refer to such a situation as is here presented, they do, in effect, by the generality of their language, authorize an adoption in such a case. They provide that any minor child may be adopted by any adult person, in the cases and subject to the limitations set forth in the chapter. The "cases" referred to are clearly those situations where the prescribed difference in ages exists and the requisite consent is obtainable. There is no attempt to limit the privilege of adoption according to the legal relationship of the minor and the person who has him in custody at the time of the *131 adoption proceedings. In view of the fact that adoption is sanctioned where the parents of the child are living and not disqualified from exercising their parental rights, there can be no reason for implying a restriction merely because there is a duly appointed and qualified guardian.
[4] Nor is the consent of such guardian necessary to the validity of the order of adoption. The matter of adoption rests almost entirely in the discretion of the court, the welfare of the child being the main consideration. (Matter of Bewley,
There is apparently no authority in this state upon this question of consent of a guardian and the cases in other jurisdictions vary, due, possibly, to differences in the statutes they interpret. In the case of Leonard v. Honisfager,
[6] Appellant next advances the argument that, conceding that the guardian's consent is not essential to the validity of the adoption, nevertheless such an adoption does not, in and of itself, constitute a valid cause for the removal of the guardian. This contention is answered, we think, by subdivision 8 of section
[7] The power of the court to make the order placing the custody of the child in the adopting parents, and, at the same time, permit the guardian to continue to act as guardian of the child's estate cannot, we think, be seriously questioned. Doubtless, in the opinion of the court below, it was desirable that the property of the six brothers and sisters remain under the control of one person, and there is nothing anomalous in a situation wherein the custody of the person of a minor is in the parents and that of his estate is in a guardian. We think the court below had power to create this situation if in the exercise of a sound discretion it found it proper to do so.
The order appealed from is affirmed.
Wilbur, J., Sloane, J., Olney, J., Angellotti, C. J., Shaw, J., and Lawlor, J., concurred. *133