51 Cal. App. 2d 39 | Cal. Ct. App. | 1942
Calvin F. Summers died intestate on March 7, 1939, at the age of about 85 years, leaving an estate of considerable value, consisting chiefly of a bank deposit and mining property. He was a widower, and was not survived by any children, brothers or sisters. Four separate petitions for letters of administration were filed; one by Charlie Y. Woods, claiming to be the decedent’s grandson, and another by James L. Treadwell, who was admittedly a grand-nephew. The probate court granted Woods’ petition and denied the others; and Treadwell alone has appealed. It is conceded that by
In order to pass upon the correctness of the probate court’s finding it becomes necessary to consider the evidence adduced at the hearing relating to the family history and the background of the parties. It appears therefrom that Isabel Mather Henderson and John Wilson Henderson, husband and wife, had two children, Bertha Lois (respondent’s mother) and Isabel (known generally as “Belle”). In 1875 Mrs. Henderson obtained a divorce from her husband on the ground of extreme cruelty, and was awarded the custody of the children, who were then 4 and 8 years of age respectively. The children, However, remained living with their father, and Mrs. Henderson, who was then in her early thirties, took a position as governess for the children of Mrs. Mabel Summers Tread-well, wife of James Parker Treadwell Sr. and sister of Calvin F. Summers. Calvin at that time was about 19 years old, and lived with his sister at 16 Shephard Place, San Francisco. In 1877 he and Mrs. Isabel Henderson were married, and continued to live with Calvin’s sister at 16 Shephard Place. In 1881 Bertha Lois and Belle, the Henderson children, went to live with their mother and Calvin Summers, and it was during that year that it is claimed the court proceedings took place whereby Calvin F. Summers legally adopted Bertha Lois.
Belle did not get along well with Summers, and a short time after the adoption of Bertha Lois, Belle went back to live with her father. Bertha Lois continued to live with Summers and her mother until about 1888, part of the time on Haight Street. She attended the College of Holy Names in Oakland during 1887, using the name “Lois Somers.” (The name Sum
The main evidence relating to the adoption proceeding and the circumstances attending it consisted of the testimony given by Belle Henderson, the surviving sister of respondent’s mother, Bertha Lois. At the time of the hearing of the present proceeding Belle (or Isabel) Henderson was married, and upon being sworn as a witness gave the name “Isabel Bryan.” She testified that she was present in court at the time the adoption took place. In this regard she stated, in part, that about 1881 she and her sister Bertha Lois went to live with Summers and their mother at 16 Shephard Place in San Francisco—they had been living with their father up to that time; that in the presence of her sister, her mother and herself Summers said he wished to adopt her sister, that she was a very bright girl and he would be able to give her advantages that her father could not; that at that time the witness was between 12 and 13 years old, and her sister between 8 and 9. Continuing, she testified that about a month after the above discussion Summers, his wife and the two girls “went to the court out in the City Hall” and went into the courtroom and sat down, and her mother was introduced to the judge, Judge Halsey; that her mother and Summers were sworn to tell the truth, and Summers handed the judge some papers and said this was the little girl he wished to adopt; that the judge read the papers, and then asked her mother if she was willing for Summers to adopt the child and she said yes; that her mother and Summers then signed the paper, after which the judge wrote something on the paper himself; that then the judge said to Bertha, “Bertha, now you have a new father” and he hoped she would be very happy in her new surroundings. Continuing her narrative, Mrs. Bryan testified that she remained with her mother and Summers for about a year; but that Summers was not kind to her, so she told him she was going back to her father, and he replied, “Go ahead, but your sister can’t go, she belongs to me. I
Considerable corroborative testimony was introduced. In part it consisted of the following: Albert S. Woods, husband of Bertha Lois and father of respondent, testified that Henderson, his wife’s natural father, told him Bertha Lois had been adopted by Summers; and he testified that sometime prior to their marriage he and Bertha met Summers on Kearney Street and Bertha said, “There comes my father,” and introduced Summers as her father; that about a week or two prior to their marriage he had a conversation with Summers ; that Bertha told Summers they were going to get married and Summers inquired if Woods was working and what his salary was; that Summers said, “Well, now, she is my daughter, I adopted this girl, I am interested in her and I want you to take good care of her ...” Furthermore, various other witnesses testified to admissions made in their presence, by Summers and Bertha Lois’ mother, that Summers had adopted Bertha Lois as his child; and the registration books of the convent she attended in 1887-8 were introduced in evidence, showing she was registered there under the name “Lois Somers.” There was no contradictory testimony introduced in behalf of appellant, nor on this appeal does he challenge the truth of any of the statements made by any of respondent’s witnesses.
The sections of the Civil Code effective at the time it is claimed the adoption proceedings herein took place provided that the person adopting must be at least 10 years older than the person adopted (sec. 222); that a married man not lawfully separated from his wife cannot adopt a child without the consent of his wife (see. 223); that a legitimate child cannot be adopted without the consent of its parents, if living, except that the consent is not necessary from a father adjudged
In the Estate of Johnson, 98 Cal. 531 [33 Pac. 460, 21 L. E. A. 380], the Supreme Court had occasion to review the foregoing code sections, and in doing so it said in part: “The right of one person to legally adopt the offspring of another, and thus to create between the person adopting and the child adopted the relation of parent and child, giving to the child all the rights and subjecting it to all the duties of that relation, was unknown to the common law, and exists in this state as a pure creation of statute law; and, in order to effect such adoption, it is necessary that there should be a substantial compliance with all of the essential requirements of the law under which the right is claimed; but, in determining what provisions of the law are essential and therefore mandatory, the statute is to receive a sensible construction, and its intention is to be ascertained, not from the literal meaning of any particular word or single section, but from a consideration of the entire statute, its spirit and purpose.” And later on the court said: “The adoption of a child under the section [s] of the Civil Code above cited is not a judicial proceeding (In re Stevens, 83 Cal. 322 [23 Pac. 379, 17 Am. St. Rep. 252]), although the sanction of a judicial officer is required for its consummation. The proceeding is essentially one of contract between the parties whose consent is required. It is a contract of a very solemn nature, and for this reason the law has wisely thrown around its creation certain safeguards, by requiring, not only that it shall be entered into in the presence of a judge, but also that it shall receive his sanction, which is not to be given until he has satisfied himself of these three things: 1. That the person adopting is ten
In the present case the probate court accepted as true all of the testimony given by Mrs. Bryan; and it is our conclusion that it was justified in finding therefrom that all necessary jurisdictional and statutory requirements to establish a valid adoption had been satisfied. Summarized, the undisputed facts appearing therefrom are that the child was less than 12 years of age, and that Summers was more than 10 years older than the child; that the consent of the natural father of the child was not essential because of the decree of divorce; that the sole purpose in going before the judge of the court was to accomplish the act of adoption; that Summers and his wife were sworn as witnesses; that they were examined separately, and that consent to the adoption was fully given by Summers and his wife (the natural mother of the child); that Summers handed the judge some papers which were read by the judge and signed by Summers and his wife, and that thereafter the judge wrote something on the paper himself; whereupon the judge stated to Bertha, ”... now you have a new father”; and bearing in mind the nature of the requirements of said sections 226 and 227, the only reasonable inference to be drawn from the evidence is that the paper Summers handed to the judge and which Summers and his wife signed was the agreement to adopt, and that the paper signed by the judge was the order of adoption.
Appellant contends in effect, however, that in a case such as this where it is claimed that the record of the adoption has been destroyed, the fact of the adoption can be legally established only as provided by section 1855 of the Code of Civil Procedure, that is, either by the production of a copy of the original record, or by the testimony of one who has actually read the documents constituting the adoption record and can relate the substance of their contents by virtue of having read them; and in support of such contention he relies mainly upon the Estate of Sharon, 179 Cal. 447 [177 Pac. 283]. While a portion of the opinion' therein was devoted to a discussion of the failure to produce any witness who had actually read the adoption papers which the appellant therein claimed had been destroyed by the San Francisco fire of 1906, an examination of the entire decision discloses that there were
Appellant also emphasizes the Estate of McCombs, 174 Cal. 211 [162 Pac. 897], but there the probate court found against the claimant on the determinative question of fact and the Supreme Court declined to disturb the finding. Stated more precisely, the determinative question of fact there was whether in conformity with the law of the State of New York in force
A casual inspection of Estate of Guinasso, 13 Cal. App. 518 [110 Pac. 335], stressed by appellant, shows that it is not at all in point. There an attempt was made to probate a destroyed will, and the proceeding was governed by a code section enacted for the sole purpose of taking care of such cases, to wit, section 1339 of the Code of Civil Procedure, as it stood at that time.
Several other eases have been cited by appellant, but no useful purpose could be served by giving each of them special attention, because none of them dealt with a factual situation similar to the one here presented. Nearly all of them involved direct attacks by the natural parents upon the validity of existing adoption proceedings; and the decisions on appeal simply restated the general doctrine applicable to such cases, that the one claiming a valid adoption must show that there has been a compliance with every essential statutory requirement. There is nothing in the decision of the probate court in the present case, nor in our disposal of the appeal from that decision, which can be said to conflict with such general doctrine.
The order is affirmed.
Peters, P. J., and Ward, J., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied May 28, 1942.