The record-union., 1896-08-29
AN INTERESTING DECISION.
IntriCacieS Of the Case Of the COmaSSl
Estate.
Judge johnson Traverses It's History
for Twenty Years - Several
Knotty Problems.

In Department Two of the superior
Court Judge Johnson yesterday render
cd his decision in the contest over the
Comassi estate, which has been long on
the records of the court, in one way or
another He directed that letters of adj
ministration be issued TO the Pupllc Ad-
ninistrator, and in his decision gives
the history of the case as follows:
In June, 1877, the deceased executed
q will, whereby she made one Alvin
c. Searle her sole devisee, and named
him as executor thereof. At that time
she was married and resident of the
city and county of San Francisco. She
subsequently moved to MarysVille,
where her husband, having died, she
married a second time. This husband
also died. After his death she in due
form Of law adopted young child,
Clara S. Comassi. She then removed to
Sacramento at which place she ac-
quired a house and lot.
In 1893 she departed this life without
revoking the will executed In 1877.
The will had all of the time been in
possession of Searle, who was an attOr
ney at law, and doubtless the deceased
had forgotten the fact of its existence.
Re that as it may, some six months
after her death, and while her estate
was in course of administration, Searle
appeared and presented the will for
probate. The Supreme Court declared
this will to be emitted to probate. (Es-
tafe of Comassi, 107 Cal II
Letters of administration, with will
annexed, were issued to Searle. In the
meantime he died. Application for let
terS of administration are pending,
both by the Public Administrator and
the guardian of the adopted child. The
question for consideration is, which of
the two applicants is entitled to letters.
The rights of the respective parties
to administer upon the estate depend
upon the legal status of the adopted
child. If there was no will in existence
there could be no question of it's right
in the premises, because Section 22S,
Civil Code, gives the adopted child all
the rights of natural one. In which
case, If there was no will, it would be
entitled to inherit the same as a natu-
raj child. In this case, there being no
other children, it would be entitled to
the whole estate, and the guardian
would be entitled TO administer. (Sec-
9ions 1865 and 1868, c. C. P)
We must next examine the question
whether the existence of the will
changes the status of the child. We
find that Sections 1906 and 1907 of the
Civil Code, deal with the rights of chill
dren unprovided for in will. Section
1906 reads: Whenever a testator has
a child born after the making of his
will, either in his lifetime or after his
death, and dies leaving such child un-
provided for by any settlement, and
neither provided for nor in any way
mentioned in his will, the child sue
ceeds to the same portion of the tes-
tator's real and personal property
that he would have succeeded to if the
testator had died intestate."
Section 1907 is as follows: when
any testator omits to provide in his will
for any of his children or for the issue
CT any deceased child, unless it appears
that such omission was intentional,
such child, or the issue of such child,
must have the same share in the es-
tate of the testatOr as if he had died
intestate, and succeeds thereto as pro-
vided in the preceding section"
1t will be observed that the first of
these two sections deals with the origin
Of the child, while the second deals with
its status.
The second refers to the status at
the time the will is executed. If no
mention is made of a child in g. will
that child takes without regard to the
Will the same as if none had been exc
cuted, and 1t would make no difference
whether the child was a natural or
adopted one because Section DDS c. c.
gives the adopted the same rank and
rights as the natural child 1t uses the
term children without regard 10 how
they became such whether by birth
or adoption. But it is not so with Sec
ton 1906 That section says if a tes-
tator has a child born to him after his
will is executed and fails to make pro-
vision for such child, the child will
take the same as If the testator had
died intestate. / take the word born
to be restrictive in its meaning, and
could in no sense be made to include
an adopted child. In this case the child
was adopted, not born, after the exc
cution of the will.
Counsel for the guardian contends
that under Section 4. c. c., Section 1906
should be literally construed. They
also call our attention to certain de-
cisions of our Supreme Court. All the
cases cited relate to children who
We're illegitimate and were received and
acknowledged by their natural fathers
and adopted as such. 1t will be seen by
Section 230, G.. c., that a distinction is
drawn between such an adoption and
an adoption of a child who does not
sustain such a relation to the person
adopting 1t. think it might be Justly
held that where a parent adopted his
illegitinate child as provided in Section
230 that such child would be entitled to
inherit in case such parent had omitted
to provide for 1t in a win prior to its
adoption, because the doctrine of rela-
ton might be invoked and the adoption
relate back to the time of its birth
The question of literally constituting
Section 1906, and holding that the
word born" should be held to mean the
same thing as the word adopted" is
settled adversely to the guardian in the
case of Davis VS.. Fogle ct al Q24 Ind.
4D. That case is on all fours with this.