Matter of the Estate Op Bernard NewMan
Before: Paterson
Synopsis
Parent and Child — Adopted Child Inherits. —Under sections 227, 228, and 1386 of the Civil Code, an adopted child is entitled to succeed by inheritance to the estate of the adopting parent.
Divorce—Proceeding in Rem—Service by Publication.—An action for divorce, so far as it affects the status of the parties and the custody of their minor children, is a proceeding in rent, and a service of summons by publication on a non-resident defendant is good.
Id.—Proof of Service—Amendment after Judgment.—After judgment has been rendered in an action of divorce, and before the roll is made up, the court has authority to receive amended affidavits showing a service of summons by publication.
Id.—Judgment by Default—CoNclusiveness of.—In an action for divorce, in which judgment by default is rendered against a non-resident defendant upon a service of summons by publication, the affidavits of service and recitals thereof in the judgment are conclnsive upon a collateral attack; the affidavit on the application for the order of publication, and the order of publication, are not part of the judgment roll, and cannot be considered.
Id.—Judgment before Expiration of Time for Answering.—A judgment by default, rendered before the time allowed the defendant to answer has expired, is erroneous merely, and can be attacked only upon, motion or by appeal, and by the party aggrieved.
Order for Adoption — When Made by Judge. —.An- order for the adoption of a minor, which appears to have been made in open court and is signed by the judge and filed in the adoption proceedings, will be construed as having been made by the judge, notwithstanding the order recites that it was made “by this court.”
Superior Court—Judge Acting in Other County—Presumption of Regularity. — A judge of the superior court of a particular county, who holds court in another county, must he presumed, in the absence of evidence to the contrary, to be acting upon the request of the governor, or of the judge of the court of the latter county.
Judgment when Becomes Operative — Entry. —A judgment of divorce, after being signed by the judge and filed with the clerk, is binding on the parties and their privies, although not entered by the clerk.
Paterson, J. 1. The provisions of the Civil Code bearing upon the first question presented for our consideration are the following:—
“ Sec. 227. The judge must .... make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting.”
[219]“ Sec. 228. A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation.”
“ Sec. 1386. When any person having title to any estate dies without disposing of the estate by will, it is succeeded to and must be distributed .... in the following manner: —
“ 1. If the decedent leave no surviving husband or wife, but leave issue, the whole estate goes to such issue; and if such issue consists of more than one child living, or one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children, by right of representation.”
Under these provisions, we think that an adopted child is entitled to succeed by inheritance to the estate of the adopting parent. The provisions of sections 227 and 228 extend to all the rights and duties of natural parents and children. The language is general and comprehensive. The use of the word " issue ” in section 1386 does not limit the right of inheritance to the natural children only. That section prescribes the rule of inheritance. The word “ issue ” is there used in the same sense as the words “ child ” and “ children.” If the adopted child is by. virtue of its status to be “ regarded and treated in all respects as the child of the person adopting,” and is to “ have all the rights and be subject to all the duties of the legal relation of parent and child,” the right to succeed to the estate of the deceased parent must be included. (Estate of Wardell, 57 Cal. 491; see also Ross v. Ross, 129 Mass. 243.)
2. So far as the action of Maldonado v. Maldonado affected the status of the parties and the custody of the child, it was a proceeding in rem, and service by publica[220]
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