Opinion
S.F. No. 1691.
December 29, 1900.
APPEAL from an order of the Superior Court of Santa Clara County appointing a guardian. M.H. Hyland, Judge.
The facts are stated in the opinion.
R. Platnauer, and A.P. Catlin, for Appellants.
D.W. Burchard, and H.F. Dusing, for Respondent.
This appeal is from an order of the superior court of Santa Clara county appointing a guardian of the person and estate of Ralph Russell Taylor, a minor. It appears from the bill of exceptions that the said minor was born in October, 1890, in Santa Clara county, that being the place of residence of his parents. His mother died shortly after his birth, and in December, 1890, the infant was sent by his father and placed in the care and custody of W.E. Parkhurst and Hannah E. Parkhurst, his wife, the latter being the maternal aunt of the child. The father requested the Parkhursts to take the child, stating that if they did not take it he would have to send it to an orphan asylum. They first agreed to take it for a year only, but they have furnished it a home, kept it, and it has continuously lived with them in their care and custody up to the present time. The Parkhursts at the time lived in Eldorado county, but moved to Sacramento city in 1891, and have ever since continuously resided there. The father of said minor was poor, but assisted the Parkhursts to support the child at sundry times up to the time of his death, by contributions in money and clothing, the amount of money so contributed being one hundred and fifteen dollars. On June 15, 1897, Maud Taylor, a sister of the minor, filed a petition in the superior court of Santa Clara county, which petition was accompanied by the written request of Samuel Taylor, the father, asking to be appointed guardian of the person and estate of said minor. On July 18, 1897, before action on said petition, the father died. After the death of the father, and in October, 1897, by proceedings in the superior court of Sacramento county, the said minor was adopted by the Parkhursts, who entered into and executed the agreement required by the code in such cases. The record is silent as to whether or not the Parkhursts, at the time of the proceedings for adoption, had any notice of the application of Maud Taylor to be appointed guardian.
On the nineteenth day of March, 1898, the said Parkhursts filed a written answer and contest to the petition of Maud Taylor, in which they denied that the minor was a resident of Santa Clara county, and alleged that he was at the time of filing the petition, and continued to be, a resident of Sacramento county, and further alleged the proceedings of adoption showing that said minor was adopted by them in October, 1897. After hearing the evidence and upon the facts herein stated, the court made an order appointing Maud Taylor, the sister, guardian of the person and estate of the said minor. A minor must be an inhabitant or resident of the county in which the appointment of a guardian is made in order for the court to have jurisdiction to make the appointment. (Code Civ. Proc., sec. 1747; In re Raynor, 74 Cal. 424; Rodgers on Domestic Relations, sec. 848; Harding v. Weld, 128 Mass. 589; Schouler on Domestic Relations, 424.) There is no different principle laid down in Guardianship of Danneker, 67 Cal. 643. In fact in that case it is said: "Letters will be issued, if necessary, by the court of the county where it may be legally determined the child resides." After the minor was adopted in October, 1897, his residence was that of the Parkhursts who adopted him. (Civ. Code, sec. 228; Pol. Code, sec. 52, subd. 4; Jacobs on Domicile, secs. 247, 248; Younger v. Younger, 106 Cal. 379; Washburn v. White, 140 Mass. 569.)
We think the bill of exceptions purports to give all the evidence upon which the court acted. After giving certain evidence and facts it is recited therein: "Upon the foregoing facts in evidence, and the testimony of Maud Taylor hereinafter set forth, the said matter was, on the 25th of March, 1898, submitted to the court for its decision." Then follows the testimony of Maud Taylor.
In the specifications and exceptions it is stated that by the adoption the child became to all intents and purposes the child of the parents adopting it, and that the evidence shows that at the time of hearing the petition the child was a resident of Sacramento county. It is presumed that the bill of exceptions contains all the evidence relative to the above specified points. (Abbey Homestead Assn. v. Willard, 48 Cal. 619.)
It follows that the order should be reversed.
Smith, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the order is reversed. McFarland, J., Temple, J., Henshaw, J.