In re the Estate of Jessup , 81 Cal. 408 ( 1889 )

Fox, J.

Gershom P. Jessup died in this state on the second day of November, 1886, leaving a last will and testament, dated August 28, 1867, and being at the time of his death a resident of the city and county of San Francisco. The will was admitted to probate November 22, 1886, and letters testamentary issued to S. 0. Putnam and Isaac Jessup, the executors therein named. He was never married, and his entire estate, amounting to nearly one hundred thousand dollars, was devised to his brother, Isaac Jessup, and his two sisters, Mrs. Ann A. Lindsley and Mrs. Caroline 0. Bogart, the two latter of whom were and are non-residents of this state.

On the eleventh day of April, 1887, the petitioner, respondent here, describing himself as Richard P. Jessup, but signing as Richard Jessup, and who is subsequently shown to have been usually known as Richard Miller, filed his petition in the said ease in probate, in which, after setting out the preliminary facts showing the death and pendency of the probate proceedings, and showing the character and condition and amount of the estate, he avers substantially that he is a son of said Gershom P. Jessup, deceased, and of Josie Landis, deceased; that he was born in San Francisco March 20, 1866; that said Gershom P. Jessup and Josie Landis never intermarried nor lived together as husband and wife, but that from and after the birth of said petitioner, and for many years subsequent thereto, and up to the time of the death of said Gershom P. Jessup, he, the said Gershom P. Jessup, publicly acknowledged the petitioner as his child, and supported, maintained, and educated him as such, and otherwise and in all ways treated the petitioner as if he were a legitimate child; “and did thereby adopt your petitioner as and for his legitimate child, and thereby and thenceforth your petitioner became for all purposes the legitimate child of the said Gershom P. Jessup, from the time of your petitioner’s birth.” It further sets out that said Gershom P. Jessup was never married and never had any family residence; that by an omission not appearing to be intentional, he wholly omitted to provide in his will for petitioner, and claims that by reason thereof petitioner is entitled to the same distributive share in the estate of deceased as though said deceased had died intestate; and then proceeds to set out that the estate is but little indebted, and prays an order of court, after due notice and hearing, distributing the whole of the estate, or such part thereof as the court shall direct, to petitioner, upon his giving bond conditioned for the payment, whenever required, of his proportion of the debts of the estate.

Under this petition citation was issued to the executors of the will only, and served on the same day. Subsequently the executors appeared and demurred to the petition: 1. For want of facts to entitled the petitioner to partial distribution; 2. Repeating the same ground in another form; 3. For uncertainty, which was duly specified; 4. That the court had no jurisdiction of the subject-matters contained in the petition; 5. For defect and misjoinder of parties, in that the devisees under the will were not joined; 6. That the court had no jurisdiction of the person or any person interested in and necessary to the determination of the questions presented in the petition; 7. That the petitioner had no legal capacity to petition for partial or any distribution, and setting forth the reasons therefor.

This demurrer was afterward overruled and exception, taken, and the ruling is assigned as one of the errors relied upon on this appeal.

The executors then answered, putting in issue the question of the paternity of the petitioner, and the question of his adoption. On the issue thus framed, a trial was had before the court, and a large amount of testimony was taken. The court found in favor of the petitioner, and gave judgment ordering the distribution of the entire estate to him, upon his giving bond in the sum of one thousand dollars, which was given, conditioned that he would, when required, pay any debts that might be found due from the estate.

From this decision and judgment or order an appeal is taken to this court, both on questions of law and on the ground of insufficiency of the evidence to justify the decision, the evidence being brought up in a bill of exceptions.

Twenty-three specifications of errors of law are assigned, six of which go to the question of jurisdiction. Personally, I am of opinion that the court never acquired jurisdiction to hear and determine the questions involved in this appeal; that upon petition for partial distribution, jurisdiction to determine the question of contested heirship, or right to inherit, can only be acquired by proceeding as provided in section 1664 of the Code of Civil Procedure. But in this a constitutional number of the justices of the court do not agree with me, and the ruling of the court is in favor of sustaining the ruling of the court below, in so far as relates to the question of jurisdiction.

The remaining specifications of errors of law relate mostly to certain rulings of the court upon the admission and exclusion of evidence. Counsel for respondent contend that these rulings, even if erroneous, were harmless, for the reason that most of such rulings relate to evidence tending to show that the respondent was the son of the deceased, and that this fact was admitted by counsel in the court below. By an amendment of the record, that which is claimed to have been an admission so made by counsel has been brought to this court. We do not agree with counsel that it is an admission which should be held binding upon the parties, as to the existence of the fact. At most, it was a mere expression of opinion of counsel as to what he supposed the court would find in view of the rulings already made and given, not as an admission of the fact, but as a reason why he need not" dwell longer upon that point. The fact of paternity is denied even here, and it is the first of the questions of fact which will have to be determined in any proceeding which the respondent may prosecute for the purpose of asserting his claim to inheritance.

As to the particular question put to the wdtness Winter, and objected to, it may be said: For the avowed purpose for which the question was put, it was, to say the least, harmless to admit it. The witness had already testified to the fact that the deceased had admitted to him the paternity of a boy and shown him the boy. The point of inquiry at the moment of the question objected to was the identity of the young man to whom his attention was then called in court with the boy so shown to him some years before, and the witness had himself spoken of marks of resemblance between the person so before him in court and the deceased, and which marks of resemblance had attracted his attention on the former occasion, and it was in reference to these marks of resemblance and reminder that the question was put; the counsel declaring that the question was not put for the purpose of proving paternity, but simply of identity.

We cannot see that it was prejudicial error to allow the question put to Mrs. Hatton, as to the conversations had between herself and the deceased, at any time during the last six or seven .years, in regard to the intentions of the deceased toward Richard’s mother. The question was entirely irrelevant and incompetent for the purpose of showing adoption, but it was undoubtedly put in the hope of eliciting further evidence tending to show paternity. It was a dangerous question for the respondent to put, for paternity alone, even if admitted, would not give a right of inheritance, and if the response proved an intention to make any other arrangement than that of marriage (an arrangement which counsel evidently did not expect and did not prove), its tendency was, and evidently must have been, to show that whatever the deceased had done for the boy was done for some reason other than that of an intent to adopt.

We do not perceive that it was prejudicial error to admit petitioner’s exhibits A, B, C, D, E, F, G, and H, the letters of Mrs. Landis to Mrs. Nugent. They were incompetent and inadmissible for the purpose of proving paternity, but they were not offered for such a purpose. The sole object of introducing them was to show that at that time the child’s mother acquiesced in the disposition that was being made of, and the provision that was being made for, the child. For that purpose the letters were admissible, although perhaps not very material, it being borne in mind that this was prior to the passage of the act of 1870.

Exhibit K, the photograph of the deceased, taken ten or twelve years ago, was entirely irrelevant and immaterial to any issue in the cause, and the objection to its introduction should have been sustained. Its admission was, however, probably a harmless error.

Exhibit L was a photograph showing the deceased and the petitioner in the same picture. It was made shortly before the trial, by bringing two negatives in juxtaposition, and from them making a third. One of thém, that of the petitioner, was made from life at the time; the other was an old negative, made several years before. The admitted purpose of the introduction of this picture |Vas to show the resemblance of the two persons, as a fact tending to prove paternity. Mere opinion as to resemblance between a child and its putative father is not admissible in evidence, but the fact of resemblance is held to be some evidence tending to prove paternity, and so when the child and the alleged father have both' been present, it has been held permissible to place them side by side before the jury for the purpose of letting them draw their own deductions as to the fact of resemblance. (Gilmanton v. Ham, 38 N. H. 108.) We are not prepared to say that pictures taken by the improved processes of photography may not be admissible for such a purpose; but they would be entitled to much less Aveight as evidence than profert of the persons themselves, and even the latter would not go far toward establishing relationship, since a marked similarity betAveen strangers, and great dissimilarity between kindred, are matters of almost daily observation. (See 1 Wharton on Evidence, sec. 346.)

We do not'think the exception taken to the admission of the deposition of the clergyman Ward, as a whole, was well taken. Taken by itself, that deposition would not have been admissible as proving, or tending to prove, anything binding upon the deceased; but taken in connection with the testimony of Mrs. Hatton, it was admissible as corroboratory of her testimony in relation to the fact of the christening.

Errors are also assigned as to some other rulings of the court in the admission and exclusion of evidence, but we do not deem them of sufficient importance to merit special consideration here.

The only remaining point upon this appeal which it is necessary for us now to consider is, that “ the evidence is insufficient to justify the decision.”

The evidence is voluminous, and at the first reading seems conflicting. But when we have first examined the law and ascertained and determined what facts are necessary to be established by proof, in order to determine that an illegitimate child has been legitimized and given the capacity of inheritance in the estate of the father, the apparent conflict is removed; and upon some at least of the points so necessary to be established by proof we find that there is not only no conflict, but no evidence whatever, to bring the case within the requirements of the law.

All the rights which are given to the petitioner in the premises are given by statute, passed in derogation of the common law. It is claimed by the respondent that in determining those rights the rule established in section 4 of the Code of Civil Procedure is to be applied, and the statutes are to be liberally construed, with a view to effect the object and to promote justice. That is true, so far as applies to the provisions of the code, when applied to the acts of the deceased done since the passage of the codes. But the converse of the proposition is the rule, so far as reliance is placed upon statutes passed prior to the codes and acts done under them. (Pina v. Peck, 31 Cal. 359.) And even as to the code, “liberal construction” does not mean enlargement or restriction of a plain provision of a written law. If a provision of the code is plain and unambiguous, it is the duty of the court to enforce it as it is written. If it is ambiguous or doubtful, or susceptible of different constructions or interpretations, then such liberality of construction is to be indulged in as, within the fair interpretation of its language, will effect its apparent object and promote justice.

The law in force at the time of the birth of the respondent reads as follows: “Every illegitimate child shall be considered as an 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.” (Stats. 1850, p. 220, sec. 2.) This statute must be strictly construed. (Pina v. Peck, supra.) There is no pretense that any such written acknowledgment was ever made. It follows that, under this statute, neither oral admission nor proof (otherwise than by such written acknowledgment) of the fact of paternity will constitute the illegitimate child an heir.

This statute continued in force until March 31, 1870, when it was repealed, and the legislature passed “an act providing for the adoption of minors, and the legitimizing of children born out of wedlock.” (Stats. 1869-70, p. 530.) The third section of this act provides, among other things, that an illegitimate child cannot be adopted without the consent of the mother, and that the consent of the minor, if over twelve years, shall always be necessary. If this section is construed to apply to the adoption provided for in section 9 of the same act, it requires things w'hich there has been no attempt to prove in this case; but we think that it cannot be fairly construed to have any application' to adoptions under said section 9. The first seven sections of the act provide for the adoption of children by strangers, and while the language of section 3 referred to seems to be general, we think it was intended to be limited to the cases provided for in that part of the act embraced in the first seven sections. Sections 8 and 9 read as follows:—■

“ Sec. 8. A child born before wedlock shall, to all intents and purposes, become legitimate by the subsequent marriage of its parents.

“Sec. 9. Either or both parents of an illegitimate child, or the father with the consent of his wife, or the mother with the consent of her husband, may acknowledge such child as his or their own, by a document in writing, executed by either if single, or both if married, or by treating, receiving, or acknowledging him publicly as his or their own legitimate child; and such child, and the one mentioned in the foregoing section, shall, to all intents and purposes, be deemed legitimate from the time of its birth, and entitled to all the rights and privileges of legitimate offsprings.”

This statute must also be strictly construed, for it was not until the adoption of the codes, and is only as to the codes, that the rule that statutes in derogation of the common law must be strictly construed was changed. This was the first statute which authorized legitimizing of an illegitimate child by any mode other than the written acknowledgment provided for in the statute of 1850, and at the time of the adoption of this statute the respondent in this case was a little over four years of age.

This statute remained in force until January 1, 1873, when section 230 of the Civil Code took its place. That section, so far as relates to the legitimizing of an illegitimate child, provides: “The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth.” This provision, being a part of the code, is to be liberally construed, but it is not retroactive, and relates only to minor children. (Estate of Pico, 52 Cal. 84, and 56 Cal. 413.) Section 1387 of the same code is a part of the chapter on succession, and provides: “Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an lieir of his mother, and inherits his or her estate in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock.” It is contended that this provision of section 1387 is a limitation upon section 230, but we do not think that the code should be so construed. The whole chapter on adoptions relates to the adoption of minors; and by the express provision of this section 230, an illegitimate minor, acknowledged and adopted as therein provided, “is deemed to be legitimate for all purposes.” One of the objects of adoption, and of legitimizing by adoption, is to give the capacity of inheritance. It has been already determined in the Estate of Pico, supra, that this section relates only to minors, who alone are subjects of adoption, and that section 1387 provides for giving to illegitimate adults the capacity of inheritance.

It follows from these statutes, and the rules of law applicable to the construction thereof, that prior to 1870, when this respondent was four years of age, he, the respondent, could not have been adopted by the deceased, or given the capacity of inheritance from him, except by acknowledgment in writing in the presence of a competent witness; that from March 31, 1870, to January 1, 1873, he could have been so adopted and given such capacity either by acknowledgment in writing, as before, or by the deceased having “treated, received, or acknowledged him publicly as his own legitimate child.” Both these statutes must be strictly construed. (Pina v. Peck, 31 Cal. 359.) It is conceded there was no written acknowledgment, such as prescribed by either statute. The act of 1870 cannot be construed as retroactive, so as to give force or effect to acts done or performed before its passage, which they would not have had at the time they were so done or performed. Since the 1st of January, 1873, he could have been so adopted and given such capacity of inheritance by the deceased having “publicly acknowledged him as his own, receiving him as such .... into his family, and otherwise treating him as if he were a legitimate child”; and this provision is to be liberally construed. But liberal construction does not mean that even this provision is to construed to be retroactive. Nothing that was said or done by the deceased prior to January 1, 1873, can be construed as proving, or tending to prove, such adoption, -unless it had that effect at the time it was said or done, and under the law then in force.

Liberal construction does not require or authorize the frittering away of the written law. Nor are we authorized to consider the apparent justice or hardship of particular cases, for we are not appointed to decide cases alone, but to settle principles first, and second, to decide cases according to those settled principles as applied to the facts presented in the cases. The decision of a single case according to its apparent justice or hardship might establish a principle that would cause greater injustice or greater hardship in numerous other cases. While it is true that illegitimate children are themselves innocent of wrong, and are for that reason entitled to the sympathies of mankind, and to such reparation as the laws can give, it is equally true that courts ought not, by any extraordinary liberality in the construction of those laws, to enable wantons in silk, having children without names, to prey upon the estates of dead men, however much they may have thrived through the fears of living ones. While in this particular case no adventuress is seeking to recoup for her own wrong, it is important to see that a rule of law is not established by construction, which would place a premium upon perjury in other cases, though none may be manifest here. Of the women who are mothers of nameless children, there are few indeed who would hesitate at any fraud, or to whom perjury would seem a crime, if by means of it a dead father, who had left a goodly estate, could be secured for the nameless one, and this even while continuing in illicit intercourse with the actual father still living. And human nature is so weak, that even men are not wanting who would aid their mistresses in palming off their own children upon the estates of dead men, if thereby a competence could be secured upon which both, with their illegitimate offspring, could continue to live in luxury and in crime. On the other hand, the court ought never, by a strained construction in the other direction, to relieve a licentious man or his estate of any of the obligations or burdens which the legislature has imposed as a restraint upon vice, as a reparation to those who actu'ally suffer from' his vices, or as a protection to the commonwealth from the burden of supporting the nameless offspring of his crimes. Between these two dangers, the duty of the court is fairly to interpret the laws as the legislature has framed them, without regal’d to how its action may affect individual cases. If thus interpreted they are found to be too stringent or too liberal, the remedy is through the legislature, and not the courts.

Acting upon these rules of interpretation and construction, the inquiry is, whether the acts and declarations of the deceased amounted to a public acknowledgment by him of this child as his own, receiving it as such into his family, and otherwise treating it as if it were a legitimate child.

As he had ño home and no family, in the strict sense of “a collective body of persons who live in one house and under one head or manager, a household including parents, children, and servants,” it would not be a fair or liberal construction to say that the child had not been adopted or acknowledged because he had not been received in such a home or made a member of such a family. On the other hand, since it is a fact that the deceased did have a family, in the sense of having “brothers and sisters, kindred, descendants of one common progenitor,” with some of whom he was brought into frequent contact, and also business associates and friends with whom he was in daily intercourse, from all of whom he not only studiously concealed, and to his brother in express terms denied, the relationship, it would require a liberality of construction destructive of the language of the statute itself to hold that there had been an adoption within the meaning of the code, or of the statute of 1870. And it is conceeded that there was none under the statute of 1850.

An analogous question was recently considered by this court at great length, in the case of Sharon v. Sharon, 79 Cal. 633, and the sum of the conclusion there reached was, that the parties must have held themselves out to their relatives, friends, acquaintances, and the world as occupying toward, each other the relations claimed for them in the action. Speaking generally, the laws applicable to this case seem to require something like the same kind of public acknowledgment and recognition as was required in that case. Was there such acknowledgment and recognition ?

Let us consider briefly what is and what is not shown by the evidence. We assume for the purposes of this opinion that the paternity was sufficiently established. That alone, unless established by written acknowledgment in the presence of a competent witness, which was not done in this case, does not establish adoption or give a right of inheritance.

It is also in evidence that when the mother of this child was about to be confined, the deceased brought her to this city and procured for her care and maintenance at the house of a reputable negro nurse during the period of her confinement and illness. One witness, a dentist, with whom the deceased had some acquaintance, and to whom he applied for some professional service for the mother before her confinement, says that at that time the deceased acknowledged to him that the child about to be born of that woman was his; that he said he would not marry the girl, but would be just with hey, and pay all the expenses of her care; and would care for the child. Another, a colored woman who had the care of the boy after the first few years of his existence, and daughter of the nurse where the child was born, testifies that, at about the time the mother was brought to the house of her mother, she overheard a conversation between the deceased and her mother, in which deceased acknowledged that he was the father of the child about to be born, and intended to provide for it. She also says that deceased then also promised that he would marry the girl. This is the only direct testimony tending to show a promise on the part of the deceased to marry the child’s mother. It is given by one who was herself a child at the time when she says the promise was made. This is in direct conflict with the statement made about the same time to the dentist. The conflict, however, is of little moment, except as it shows a conflict between the two witnesses, without whose testimony the respondent has no case whatever, and tends to show that the recollection of the colored woman, as to events happening and declarations made during the period of her own childhood, may not, in all cases, be reliable.

It is sufficiently shown that the mother of the child remained at the house of the nurse about seven weeks, during which the deceased called there frequently, the witness says, and Jessup paid all the expenses. After the mother left, the child was kept and cared for by the nurse, at the expense of Jessup, who called frequently to see it, and as it got old enough to observe things, would play with it, calling it his boy, and calling himself daddy, and at a still later period would take the child and the witness, who appears at that time to have acted the part of nurse-girl to the child, to North Beach and let it see the animals there, and buy nuts and cakes for it to feed to them. The girl says that he was very fond of the child, and that it was called Bichard at his request. Her testimony is very full as tending to show his interest in and apparent affection for the child while it remained at the house of the original nurse and in the city of San Francisco; she saying, among other things, that he said “he wanted to make a man of him”; and “if Bichard behaves himself and does what. I want him, he will not be sorry for it,” and many other expressions of this kind. All this might have gone far toward proof of acknowledgment and adoption if it had been public and at a time when the law authorized adoption by such kind of acknowledgment. But it was never public. It was made and done only to and in the presence and hearing of the negro family, in whose care he placed and continued to keep it. When he took it out it was with the negro girl, and then not to a place where he would be likely to meet members of his own family and friends. And it all occurred during the period of the child’s residence in San Francisco. During all that time the law' of 1850 was in force, and no kind of acknowledgment or recognition would amount to adoption unless it was in writing and duly witnessed.

According to the testimony of this witness, she was herself about thirteen years of age when the respondent was born. In May, 1868, she married and removed to Petaluma, and two mouths afterward, when the respondent was less than two years old, he was removed to her residence in Petaluma, and that continued to be his residence until 1876, when he was sent away to school. It will be observed that this removal to Petaluma occurred prior to the passage of the act of 1870, and it is a significant fact that it is not shown that the deceased ever visited the boy after such removal, either in sickness or in health, and is affirmatively proved that he never did visit him while living at Petaluma. Nor is it shown that the two ever lodged, even for a single night, in the same house, or ever but once sat down at the same table, or even in the same dining-room, in their lives. It is shown, however, that deceased continued to provide for the boy’s maintenance while at Petaluma, and subsequently had the colored woman take him to Washington College, where he had arranged for his board and schooling, and where he was entered and known, as he had been known at Petaluma, by the name of Richard Miller, the latter being the family name of the colored people with whom he had been living. The witness testifies that when she had her own children christened by a colored clergyman at Petaluma, she, at the request of Jessup, had Richard christened by the name of Richard Page Jessup; and the deposition of the clergyman shows that he had some recollection of such an occurrence, but no public or church record was made of the fact, and the private record kept by the clergyman had been lost. It is not shown that Jessup had any knowledge of this fact, except that the witness says she had it done at his request, and that afterward she informed him of the fact, and he gave her five dollars to give to the preacher. The boy was never known anywhere by the name of Jessup, but always and everywhere by the name of Miller. He was placed at school as a ward of Jessup, and the accounts were kept against Jessup as guardian of Richard Miller. Two or three witnesses testify that while at school, when he was sixteen or seventeen years of age, the young man himself declared that he did not know who his father was; and it is fairly deducible from the whole evidence that he never did know Jessup as his father, or call him such, although he knew that, sometimes directly and sometimes indirectly, Jessup was contributing to his support. Jessup’s diary, and all the accounts and memoranda kept by him relating to the boy, that could be found among his effects, xx-ere brought into court, and nowhere among them is there an entry of any kind indicating an acknowledgment of the boy as being his son,—'every reference that is made to him is as Richard or “Dick” Miller.

It is patent, however, from the exddence that for fourteen or fifteen years he secretly provided for the maintenance of that boy,—that is to say, as secretly as such a thing could reasonably be done xvithout sending the boy entirely out of the country,—and the evidence discloses abundant reason why he was not sent away. This could not have been done without causing a denouement, which he was constantly seeking to avoid. Necessarily, the maintenance was not entirely secret. He rvas compelled to act through and to deal with others in providing for the care and education of the boy. But he always acted through channels that were not within the circles of his ordinary dealing, or his ordinary association, and as far as possible without the knowledge of his family. The fact of the boy’s existence, and that Jessup was supporting him, was communicated to his brother while yet the child remained in San Francisco,by the nurse in whose charge he was. A few' days afterward the brother asked Jessup about it, and asked him if it was his boy, to which Jessup replied: “No, it ain’t my boy.” Neither of the brothers was at that time occupying such social positions that either would have been likely to deny paternity through either fear or shame. During the last year or two of his life, Jessup was in feeble health, and it is apparent that both he and his brother felt that his end was approaching. During that period the brother again asked him about the boy, and asked him: “Gus, whatever became of that boy you were taking care of?” To which Jessup replied: “The boy, — I tried to make something of him. I have taken care of him, and have tried to make something out of him, but he didn’t amount to anything, and I let him go.” And the brother swears that Jessup never did acknowledge to him that the boy was his.

Some six or seven witnesses are called beside the dentist and colored woman above referred to, who testify to conversations with the deceased at different times, in which he spoke of the boy as “ his boy,” and among them we notice that four, beside the dentist and colored woman, sometimes used the words “my son,” instead of “ my boy,” as having been spoken by the deceased; but with all the witnesses who are examined on the subject, “ my son,” is the exception to the rule, the more common form being “ my boy,” and the still more common form being “ the boy.” These witnesses may all be perfectly honest, and still by mistake may have used the words “ my son,” in the isolated cases where they have used it, when in fact they should have used the form of expression most commonly adopted by them, “ my boy,” or “ the -boy.” But it makes no difference whether they were mistaken or not. None of these witnesses were members of Jessup’s family, and with a single exception they were not persons likely to come in contact with his family. None of them were his business associates, and such of them as could in any sense be called his companions were only so during such portions of his time as he was in hiding from society. They were not persons likely to make public what he had said to them on such a subject, but rather to accept it as a matter of confidence, to be kept secret. Most of them were persons with whom he was brought in contact in the business of providing for the wauts of the boy, and to only a few of those persons did he ever make any such revelations; and in no case were they so made as to amount to public acknowledgment. To the clothier from whom he always purchased the boy’s clothing, he always spoke of him as “ the boy,” never using any expression to indicate that it was his son for whom he was providing. To an artist, to whom he paid one hundred dollars for painting a portrait of the child when an infant, he never used any form of expression to indicate a relationship to him, or why he had the portrait painted. But the fact that he procured this portrait is urged as strong evidence tending to show his affection for and his intentions toward the boy. It does not so strike us. It was procured prior to 1870, and consequently proves nothing in the way of adoption. It was retained by him for some ten or twelve years, and during a portion of the time was seen by some few persons in his room. He then had it revarnished, and this fact is dwelt upon as another evidence in support of the theory of adoption, and one occurring after the adoption of the code. But the evidence discloses other facts which, to our minds, militate directly against this theory. It shows that although the mother, for the protection of her own good name, had left the boy to be provided for entirely by Jessup, her heart was constantly crying out for her baby boy, and she was seeking some memento of him. Just about the time this picture was finished she was married. When afterward it was retouched and freshened up she had become a widow, and had removed from the neighborhood in which her kindred resided. It is not shown that she ever received the picture, but on the other hand it is not shown that it was retained in Jessup’s possession after it had been retouched, and it is not found among his effects. It does not appear that any effort was made to find it among the effects of the mother, who had died some time before Jessup did.

S. 0. Putnam is one of Jessup’s executors. He was the executor of a brother of Jessup, who died about 1865, and through whom Jessup recéived most of his fortune. Putnam and Jessup were always on very intimate relations, ever since the distribution of the former estate; and much of the time Putnam had funds of Jessup’s in his hands. He knew that Jessup was providing for a boy, and during a portion of the time such provision was sometimes made through Putnam, but Jessup never told Putnam that the boy was 1ns. In 1881 Jessup sent the boy to San Diego, to go upon a ranch. That was the only time Putnam ever saw the boy. In 1882 the boy returned of his own accord, but instead of going to Jessup, he went direct to Mrs. Hatton (formerly Mrs. Miller), the colored woman, then residing at Napa, and from there communicated with Mr. Putnam, writing to him several times for money. These letters were shown to Jessup, and once Jessup authorized some money to be sent to him, but after that, for the balance of his life, Jessup refused to have anything to do with the boy.

Without dwelling further upon the details of the evidence, it may be summed up as follows:—

It is shown that before and at the time of the birth of this respondent, Jessup had promised the mother that he would protect her good name by providing for the care and maintenance of this child. So long as the mother lived, he was in fear of personal difficulty from her kindred if he failed to keep this promise. This is shown by the evidence of Mrs. Hatton as to the earlier years, and of Mr. Jackson, and perhaps some others, as to the later years. While the mother lived, and until the boy had reached an age when Jessup seemed to think that he ought to be self-sustaining, he kept that promise. But in keeping it, he kept the boy out of the circle of his own association. To a very limited number of persons with whom he was brought in contact in providing for the boy he spoke of him as “my boy,” and possibly to a less number he may have used the words “my son ”; but he never used these expressions either to or where they were likely to come to the knowledge of his own family or kindred, or to his most intimate and confidential business acquaintances and friends. He never visited the boy after he was two years old, or after the passage of any law under which adoption could result from any line of conduct other than written acknowledgment duly witnessed; and when the boy was brought or in later years came to him, as he sometimes was and did, he did not entertain him, or keep him with him, for any length of time, but made his interviews brief, provided for his wants, and sent him away. And it does not appear that he ever but once made the boy a present, and then only of a five-dollar watch. Instead of providing for him among people of his own race, he reared him and had him brought up in a colored family, respectable, it is true, but still a family of another race, commonly considered inferior, and to be brought up among whom is regarded by many people of the race of the putative father as degrading; sent to the public school with the colored children, forbidden to bear his name, and allowed him all his life to be known by the name of the colored family in which he was reared; when sent to college, taken there by his colored nurse, and entered there by her name; at last placed upon a farm in San Diego, and when he returns from there going to the only home he ever knew,— the home of his,colored friends,—and there becoming a boot-black and waiter in a colored barber-shop, and finally left to start from such surroundings and associations to make his own way in life.

And as further evidence in negation of the idea of adoption, it appears that within a year after the boy was born, and at the time when Jessup was, according to the testimony of the colored nurse, showing more evidences of affection for the boy, and of desire to provide for his future, than he .ever afterwards did, he (Jessup) makes a will, in which he wholly omits all mention of the child, or any provision for him, and never afterward changed it. It is true; the colored woman says he frequently told her he was going to provide for the boy, and another woman, whose relations with Jessup were, to say the least, not above suspicion, testifies that toward the close of his life Jessup told her that he had made a will in which he had provided for both herself and the boy,, —but no such will has ever been found, and it is not only fair to presume, but for the purpose of this case as it stands must be presumed, that none such was ever made. In his intercourse with his own family, he denied his relationship to the boy, and with those most intimately connected with him in his business relations, and who, by reason of such connection, acquired some, knowledge of what hé was doing, he never admitted or communicated that he was doing anything more than “ putting up ” for the boy.

It is said that as Jessup was never married, he was not bound to receive this child into his family, for he had none in which to receive it. But we do not so read the law. The language is: “Publicly acknowledging it as his own, receiving it as such, with the consent of his ■wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child.” If he has a wife, he can only receive it into the family with her consent; but if he has no wife, he must still receive it into his family,—that is to say, in such family as he has, the child must be acknowledged and treated as his,— at least, he must not deny to the members of such family that it is his.

Under this evidence, we are, forced to conclude that Gershom P. Jessup never did “publicly acknowledge this child [the respondent] as his own,” or “receive it into his family,” or “otherwise treat it as if it were a legitimate child.” It follows that the judgment or order appealed from must be reversed, on the ground that the evidence is insufficient to justify the decision. •

So ordered.

Sharpstein, J., Thornton, J., and McFarland, J., concurred.

Paterson, J., dissented.