Estate of Jobson

SHAW, J., dissenting.

I dissent. In my opinion the true principles governing the construction and application of statutes providing for the adoption of children is that the natural relation and the laws governing it, are thereby altered and affected only so far as the statute of adoption by its terms declares or provides, either expressly or by necessary "implication, and no farther. Like an invading force upon a hostile domain, it prevails and controls only so far as its lines extend. Beyond those limits all remain under the original control.

The Newman case (75 Cal. 213, [16 Pac. 887]), declaring that an adopted child inherits from the adopting parent, the Johnson case (98 Cal. 536, [21 L. R. A. 380, 33 Pac. 460]),

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holding that such child is entitled, as an heir, to administer on the adopting parent’s estate, and the Winchester case (140 Cal. 468, [77 Pac. 10]), that the child’s share is exempt from inheritance to the same extent as that of a natural child, all depending on the same principle of heirship, go to the extreme verge of the invading force of the adoption statute. The reason for these decisions is plain and is found in the statute itself. The descent is cast at the moment of death and the persons on whom the estate then falls are determined by their relationship- or kinship to the decedent the instant before his death. The adoption makes the one, legally, a child and the other, legally, a parent, at the time of death. This establishes the

status

of legal kinship at that time and the results stated by these decisions necessarily follow. These cases, however, do not carry the effects of the adoption to a period after the death of the parent.

The whole purpose and object of the adoption statute is to create, artificially, the relation of parent and child, to provide a

status

controlling them for their joint lives. That relation cannot last longer than the lives of the two parties to it. When either dies, the relation ceases and there remains nothing upon which the statute under which it was created can operate. The relation has served its purpose and has terminated. It has not, as has the natural relation, blood connections through which it may continue to work after it has itself ceased to have a present existence. There is not in the adoption statute a word to the effect that, where the adoption has served its purpose by prevailing over the natural relation during the joint lives of the two parties and has ended by the death of one of them, it shall thereafter continue for any purpose, or that there is to be thereafter any legal or constructive kinship, or mutual rights of inheritance, between the adopted child and the natural kin of the deceased foster parent, or between the foster parent and the natural kin of the deceased child. So far as the statute goes and while the new