Cebrian v. De Laveaga (142 Cal. 158, 1904)

VAN DYKE, J.

This appeal is from a decree of final distribution of “the residue of the estate” of José Vicente de Laveaga, deceased. The appeal is taken by Maria Josefa Cebrian, Maria C. de Laveaga, and Miguel A. de Laveaga, who were, respectively, the two sisters and the brother of said decedent. The said decree distributed said “residue” of said estate among said three appellants and the respondent Anselmo J. M. de Laveaga. The appeal is not taken from the whole of said decree, but only in so far as it adjudges that the respondent Anselmo J. M. de Laveaga is entitled to one-fourth part of said “residue” thereby distributed, or to any other part thereof, or to any interest at all.

Although the record in this case is very voluminous, and the printed argument of counsel on the respective sides quite elaborate and also voluminous, the questions involved are reduced to two propositions. These, as stated by the appellant, are: First, whether under section 1387 of the Civil Code, to be found in the title on “succession” to estates, it is possible for an illegitimate child to inherit from a collateral kin, except in the event of the marriage of his parents and his adoption into the family created by that marriage. The section in question reads as follows: “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; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother -respectively their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate.” The second point upon which the appellant relies is, that the respondent was never legitimated or adopted under section 230 of the Civil Code, which section reads as follows: 1 ‘ 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.” On the other hand, it is contended that the respondent was adopted under the provisions of section 230 of the Civil Code, and as such entitled to inherit through his deceased father, the brother of the decedent whose estate was distributed, and in which this appeal is taken. The case was tried before the court without a jury, and the court found, among other matters, that the respondent was the illegitimate child of José Maria de Laveaga by one Basilia Sanchez, who was a servant in the household of the father of said José Maria, and was living therein in the city and county of San Francisco at the time respondent was begotten. But before his birth his mother, said Basilia Sanchez, removed to the city of Mazatlan, in Mexico, where he was born. “That said José Maria de Laveaga and said Basilia Sanchez were never married; that the said Basilia Sanchez was never married; that the said José Maria de Laveaga was never married, and had no family except his said child, Anselmo José Maria de Laveaga; that the said Anselmo José Maria de Laveaga was born illegitimate and was born the illegitimate child of said José Maria de Laveaga”; that after the death of his mother, Basilia Sanchez, said respondent, then a child, was brought to San Francisco, in September, 1873, and was received here and taken in charge by his father, said José Maria, who placed tiim under the care of Dr. Wilhelm Dohrmann, and paid for his support and education in the family of said Dr. Dohrmann, “and thence continuously until his own death, said José Maria de Laveaga took said Anselmo José de Laveaga into his custody and control and under Ms protection in said state of California, and till Ms own death did continue to have and exercise the same in said state of California over said Anselmo José Maria de Laveaga as the father of said Anselmo José Maria de Laveaga and in a fatherly manner, and did receive the said child, Anselmo-José Maria de Laveaga, into his said family as his own child, and from on or about the 20th day of September, 1873, thereafter until his death as aforesaid, said José Maria de Laveaga caused said Anselmo José Maria de Laveaga to be cared for, nurtured, maintained^ reared, and educated in said city and county of San Francisco by said Dr. Wilhelm Dohrmann, . . . and said Dr. Dohrmann with his wife acted by the direction, consent, request, and procurement of said José Maria de Laveaga as the foster parents”; that said José Maria de Laveaga having no family except as aforesaid, did to his acquaintances, friends, associates, Mndred, and other persons publicly acMiowledge and declare the said Anselmo José Maria de Laveaga to be his own child and son; “that from and after the said arrival of said boy Anselmo in said city and county and until his own death, said José Maria de Laveaga had in said city and county of San Francisco certain Mndred, to wit, parents, brothers, sisters, and other collateral Mndred, and they resided therein from the date of said boy’s arrival in said city and county continuously thereafter until said José Maria’s death, with the exception that his father died on March 14, 1874, and into and among said Mndred said José Maria de Laveaga did receive the said child, Anselmo José Maria de Laveaga, as his own child, and did not deny to said kindred, or to any of them, that the said child was his child, or his own child, or that he was the father of the said child. . . . And did otherwise treat said Anselmo José Maria de Laveaga as if he were a legitimate child of said José Maria de Laveaga, and did thereby adopt said Anselmo José Maria de Laveaga as and for his legitimate child, and did legitimate said Anselmo José Maria de Laveaga, and thereby said Anselmo José Maria de Laveaga became for all purposes the legitimate child of said José Maria de Laveaga from the time of the birth of the said Anselmo José Maria de Laveaga. ’ ’

It is also found that said José Maria de Laveaga left a so-called will, in the words and figures following, to wit:—

“In the name o-£ God, amen. I, José M. de Laveaga, of Los Aguilas Ranch, San Benito County, state of California, of the age of 33 years 1 mth & 27 days, and being of sound and disposing mind, and not under any restraint, or the influence or representation of any person whatever, do make, publish and declare this my last will and testament, in manner following, that is to say:

“First. I direct that my body be decently buried without undue ceremony or ostentation; but with proper regard to my station and condition in life, and the circumstances of my estate.

“Secondly. I direct that my executors hereinafter named, as soon as they have sufficient funds in their hands, pay my" funeral expenses, and lawful debts.

‘ ‘ Thirdly. "Whereas all my kindred and relations are in good and easy circumstances, I herewith distinctly declare that I not give, bequeath, nor devise anything to any of my kindred or relatives however near; with the exception of my brother José Vicente, and this only in below specified case; but give, bequeath, and devise all of my property to my son Anselmo José Maria, born in Mazatlan, Mexico, to Basilia Sanchez, deceased, on the 21st day of April, 1868, and to-day residing with Doctor Wm. Dohrmann at No. 535 Bryant St. corner of Zoe, to the exclusion of all and everybody else, as this is the only child, I swear before God and men to have.

“Fourthly. I wish to have it understood, that said Anselmo José Maria, will not enter into possession of anything now belonging to me, before he reaches his full age, and has learned some profession, for which purpose the executors hereinafter named will give him a thorough education.

“Fifth. In case of death of said Anselmo José Maria, all of my estate goes to my brother José Vicente de Laveaga.

“Lastly. I hereby appoint my said brother José Vicente de Laveaga and my friend Frederick "W. Dohrmann (of the firm of B. Nathan & Co.) both of the city of San-Francisco, California, the executors of this my last will and testament; hereby revoking all former wills by me made.

“In witness whereof, I have hereunto set my hand and seal this 8th day of November in the year of our Lord one thousand eight hundred and seventy-seven.

“J. M. de Laveaga. (Seal.)

“The foregoing instrument, consisting of one page besides this, was, at the date thereof, by the said José M. de Laveaga signed and sealed and published as, and declared to be his last will and testament, in presence of us, who, at his request, and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto.

“A. M. Abrego, Residing at Los Aguilas.

“Green Devatjl, Residing at Los Aguilas.”

It is further found that another instrument in writing in the German language was executed by said José Maria de Laveaga in his lifetime, of which the following was a translated copy:-