Pina v. Peck

By the Court, Rhodes, J.: It is provided in the second section of the statute to regulate descents and distributions that “ every illegitimate child shall be considered as the heir of the person who shall, in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child,” etc. This clause of the section was under consideration in the Estate of Samuel Sandford, 4 Cal. 12. The question there was, whether a contract made between Sandford and two other persons for the nursing of the child, in which this language occurs : “We bind ourselves for the term of one year to nurse a female child (Nina) of Samuel Sandford ”—amounted to such an acknowledgment of paternity by Sandford as is contemplated by the statute, and it was held that it did not. Mr. Justice Heydenfeldt, in concluding the opinion of the Court, says: “ Nor do we, in deciding the case upon this ground, intend to intimate that any writing containing the evidence required would be sufficient to create an heir, under the statute, where it appears upon the face of the instrument that there existed no such object or intention at the time it was made. That question is not necessary to be considered here, and is therefore left for some future adjudication.” The case at bar presents that question.

The plaintiff claims that Antonio Pina acknowledged him[362]self to be her father, and in proof of it she produces his will, written in the Spanish language, in which, after nominating his executor and giving him certain directions as to property coming to him, says (according to the plaintiff’s translation): “At the same time I charge you that of' my part, the third, I leave to my daughter Ma. Antonia Pina, and all above to distribute among my brothers.” No other clause of the will bears upon the question. The will was attested by two witnesses. The Court instructed the jury: “That the written acknowledgment contained in Exhibit B B [the will] is sufficient to entitle an illegitimate child to inherit, if it was fairly made and signed by the ancestor.” The plaintiff claims by descent, and not by devise, and says that the clause of the will above recited relates to certain personal estate, and not to the real estate, which is the subject of controversy.

Admitting that the will was properly executed in the presence of two competent witnesses, and was duly admitted to probate, is it sufficient to constitute such an acknowledgment of paternity as is required by the statute ?

It is contended by the defendants that this provision of the statute is in derogation of the common law and must therefore be strictly construed. That doctrine was announced and applied by the Court in the Estate of Samuel Sandford, and we are of opinion that the ruling is correct beyond a doubt. As a consequence resulting from the operation of this rule, the acknowledgment must conform to the statute, and be complete in itself—that is to say, it must not require the aid of extrinsic evidence. When the parties are identified, and the instrument in writing is produced and proven, the Court must be able to say from the instrument that the person who signed it thereby acknowledged himself to be the father of the illegitimate child therein named. The testator calls the plaintiff his “ daughter,” and as there are no words of qualification, and resort cannot be had to extrinsic evidence to help out the acknowledgment, the inevitable meaning is, his legitimate daughter. But the object of an acknowledgment under this statute is to change the status of an illegitimate child, and to