Antongiovanni v. Grazzini

California Court of Appeal Feb 21, 1939 No. Civ. 10994Published

Before: Nourse

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Holding. The court held that an adoption order cannot be collaterally attacked by the heirs of an adopting parent, and that adopted children are entitled to priority for letters of administration over a decedent's sister when the children are pretermitted heirs.

Issues

May an order of adoption be collaterally attacked in probate proceedings?
Is an adopted child entitled to letters of administration as an heir at law in preference to a decedent's sister?

Disposition. reversed

Quotations verified verbatim against the opinion

“The judgment or order of adoption is entitled to all the presumptions which attach to any other judgment of such courts.”

“These are sufficient reasons for denying to respondents the right to make this collateral attack upon the order.”

NOURSE, P. J.

Armando Grazzini died testate April 22, 1937, leaving a mother, a sister, and two daughters by adoption. His last will left all his property to the mother and sister, and failed to mention the adopted daughters. The sister filed the will for probate and asked for letters. The older daughter filed an opposition to the petition, a contest of the will, and a petition asking that letters be granted her as administratrix with the will annexed, A demurrer to her contest was sustained. The two jDetitions for letters were heard

[170]

at the same time and letters were ordered issued to the sister of deceased and denied to appellant. The daughter appearing for herself, and as guardian of her minor sister, has appealed from these portions of the order.

The appellant now concedes, on the authority of

Estate of Sankey,

199 Cal. 391, 405 [249 Pac. 517], that as a pretermitted heir, she has no right to contest the will upon that ground, but that as to her and her sister there is in contemplation of law no will because of such pretermission. There is left for decision two questions of law—may the order of adoption be collaterally attacked in these proceedings, and is appellant entitled to letters as an heir at law.

When the order of adoption was offered by appellant the trial court refused to admit it upon the ground that it was void upon its face. This was error. The ruling was based upon the highly technical conception that the order of adoption showed lack of jurisdiction because of the recital that the consent of the natural father was not necessary because of his “abandonment of said minor children without provision for

their

identification”. Section 224 of the Civil Code, as it read when the order of adoption was made in March, 1926, provided that the consent of the parents of a legitimate child was not necessary (subd. 5). “From a father or mother of any child deserted by its parents without provision for

their

identification.” Respondents argue that the section makes it unnecessary to have the consent of the parents only where both have deserted the child without provision for the identification of the

Antongiovanni v. Grazzini

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NOURSE, P. J.

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