In re the Estate of Johnson

— Appeal from an order of the superior court denying the petition of Mary Eliza Johnson Howell for the revocation of letters of administration issued to one Eugene W. Kay upon the estate of William B. Johnson, deceased, and for her appointment as administratrix of said estate. The proceeding was commenced under section 1383 of the Code of Civil Procedure.

The petitioner claims to be the legally adopted child of the deceased, and whether she is or not is the only question presented by this appeal.

It appears from the evidence that on July 8, 1874, the petitioner was a motherless child five years of age, and the daughter of David Gr. Strahan; and on that day the deceased, William B. Johnson, then an unmarried man, the petitioner and her father, all residents of the county of San Joaquin, appeared before the Hon. W. S. Buckley, county judge of that county, and an order was made by said judge declaring the petitioner adopted by the said deceased, and that she should be regarded and treated in all respects as his child, and should take his family name. The order, as shown by its recitals, was based Upon a petition therefor signed by the deceased, accompanied by the written consent of…

I concur in the judgment and generally in the opinion of Justice De Haven, but I am not willing to say that the provisions of the statute requiring the judge before whom an adoption proceeding is had to examine the child, even when of tender years, is in no sense mandatory. The provision is designed to safeguard the interests of the child, and it may be that she or one proceeding in her behalf could attack the validity of the order upon the ground that the statute had not been strictly pursued. As to children under twelve years of age, the proceeding is strictly in invitum, and to change or abridge their natural rights the prescribed procedure must be strictly followed; but it does not lie in the mouth of a stranger, *544 or one claiming through an adult and a consenting party to the adoption proceeding, to say that because the interests of the passive and helpless subject of it were not so carefully looked after as they should have been, she must therefore be deprived of the1 advantages of the order of adoption to which she has always conformed, and the protection of which she invokes.

William B. Johnson died intestate in San Joaquin County, January 16, 1891, and on the 13th of February, 1891, letters of administration upon his estate were granted by the superior court of that county to Eugene W. Kay; April 10,1891, Mary Eliza Johnson Howell, wife of M. D. Howell, filed a petition in said court, alleging that she was the child and sole heir of the decedent, and therefore entitled to letters of administration upon his estate, and praying that the letters theretofore granted to Kay be revoked, and that she be appointed administratrix of said estate. To this petition answers were made by Kay, both as administrator and as one of the next of kin of the deceased, and also by Mollie Settle, a grandniece of the decedent, contesting the application of Mrs. Howell, and denying that she was the child of the deceased, or entitled to any portion of his estate. At the hearing before the superior court the evidence presented was limited to that involving the determination of the issue whether Mrs. Howell was the child of the decedent. The evidence offered by her in support of this averment consisted of certain proceedings taken before tile county judge of San Joaquin County…