Estate of Martin

86 Cal.App.2d 474 (1948) Estate of EDWARD R. MARTIN, Deceased. JOHN R. CROSS, Appellant,

v.

PATRICIA M. O'CONNOR, Respondent.

Civ. No. 13687. California Court of Appeals. First Dist., Div. One.

June 30, 1948. Robert E. Hatch for Appellant.

Bernal & Bernal for Respondent.

PETERS, P. J.

This is a companion case to Estate of Smith, 1 Civ. 13459, ante, p. 456 [195 P.2d 842], this day [475] decided, and the law stated in that opinion need not be here again set forth.

In the instant case the respondent is the daughter of the deceased, and the appellant is his brother. Admittedly, if respondent is entitled to inherit as a daughter, she is entitled to the estate to the exclusion of the appellant. It was the theory of the appellant in the trial court, and it is his theory here, that respondent is not entitled to inherit as a daughter of the deceased because, so it is contended, she was adopted out of the family of the deceased in 1910 by a decree of adoption rendered by a Minnesota court. The trial court ruled that the adoption decree was ineffective as to respondent because it shows, on its face, that the father of the child was given no notice of the proceeding. Based upon this determination, the trial court, by its decree of final distribution, awarded the entire estate to respondent. From this decree the brother appeals.

In all essential details this case is governed by the rules announced in the Estate of Hampton, 55 Cal.App.2d 543 [131 P.2d 565]. That case has been fully discussed in Estate of Smith (ante, p. 456 [195 P.2d 842]), and what was there said need not be here repeated. Suffice it to say that the Hampton case held that, if an adoption proceeding shows, on its face, that no service was had on one of the parents, the child purported to be adopted collaterally may attack the decree. Those rules are controlling here.

[1] The record shows the following: Respondent was born in July, 1902, in Minnesota, and was then named Mabel I. Cross. Her mother died in March, 1903. Her father was Roy H. Cross. He later assumed the name of Edward R. Martin. It is his estate that is here involved. The father abandoned the child in 1902. Subsequently, in 1910, a guardian was appointed for the child, and the grandmother of the child purported to adopt her. It is the validity of those proceedings that is here involved.