In re the Estate of Johnson

De Haven, J.

— 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 the father of the petitioner herein to such adoption, and an agreement executed by the deceased to the father to the effect that the petitioner here should be adopted as the child of the deceased and treated in all respects as if she were his own lawful child. The order further sets forth that all parties to the proceeding were “ present before the county judge of said county of San Joaquin in open court,” and “ were then and there (save and except said child) duly sworn and examined separately in relation thereto,” and that it appeared “that the interest of said minor would be promoted by such adoption.”

The petitioner lived with the deceased as his child from the *536 date of the proceeding for her adoption until her marriage in April, 1889. The adoptive father had no other children, and died in January, 1891, intestate. The natural father of petitioner is also dead.

Upon the foregoing evidence, which is undisputed, the superior court found that the adoption papers were not signed or acknowledged before the county judge of San Joaquin County, and that the child Mary Eliza Strahan, the petitioner here, was never examined before the county judge, and, as a Conclusion of law, held that the adoption proceedings were and are invalid.

1. The respondent claims that the appellant was never legally adopted by the deceased because she was not examined by the comity judge at the time the order of adoption was made, as required by section 227 of the Civil Code, then and now in force, and this is the main question to be decided by us. The right of one person to legally adopt the offspring of another, and thus to create between the person adopting and the child adopted the relation of parent and child, giving to the child all the rights and subjecting it to all the duties of that relation, Avas unknown to the common law, and exists in this state as a pure creation of statute law; and, in order to effect such adoption, it is necessary that there should be a substantial compliance with all of the essential requirements of the law under which the right is claimed]; but, in determining what provisions of the law are essential and therefore mandatory, the statute is to receive a sensible construction, and its intention is to be ascertained, not from the literal meaning of any particular word or single section, but from a consideration of the entire statute, its spirit and purpose. In the case of Rutledge v. Crawford, 91 Cal. 533, this court said that “it is one of the great maxims of interpretation to keep always in view the general scope, object, and purpose of the law rather than, the mere letter. 'He who considers merely the letter of an instrument goes but skin deep into its meaning.”’ (Broome’s Legal Maxims, 611.) In order to properly apply this rule of construction in the present case it is necessary to read section 227 of the Civil Code with other sections of the same code relating to the subject of adoption. Those sections are:—•

*537 See. 222. “The person adopting a child must be at least ten years older than the person adopted.”

Sec. 223. “A married man not lawfully separated from his wife cannot adopt a child without the consent of his wife; nor can a married woman not thus separated from her husband, without his consent, provided the husband or wife not consenting is capable of giving such consent.”

Sec. 224. “A legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, if living, except that consent is not necessary from a father or mother deprived of civil rights .... or who has been judicially deprived of the custody of the child on account of cruelty or neglect.”

Sec. 225. “The consent of a child, if over the age of twelve years, is necessary to its adoption.”

See. 226. (As it read in 1874.) “The person adopting a child, and the child adopted, and the other persons whose consent is necessary, must appear before the county judge of the county where the person adopting resides, and the necessary consent must thereupon be signed, and au agreement be executed by the person adopting to the effect that the child shall be educated and treated in all respects as his own lawful child should be treated.”

Then follows section 227, upon which the respondent places special reliance, and which provides: —

“ The judge must examine all persons appearing before him pursuant to the last section, each separately, and if satisfied that the interests of the child will be promoted by the adoption, he must make an order declaring that the child shall thenceforth be regarded and treated in all respects as the child of the person adopting.”

The language of this section, if literally construed, is broad enough to require the examination of an infant incapable of consenting to the proceeding, or of giving to the judge any information which could aid him in determining whether to give or withhold his consent to the adoption; and the contention of respondent on this point is that the section is mandatory, and must receive this literal construction, and that without the examination of such an iufaut the proceeding for its adop *538 tion, although regular in every other respect and acquiesced in by all of the parties to it, is void and may be collaterally ■assailed by a stranger to the proceeding. We are unable to accept this as a correct interpretation of the statute. The adoption of a child under the section of the Civil Code above cited ■is not a judicial proceeding (In re Stevens, 83 Cal. 322), although the sanction of a judicial officer is required for its consummation. The proceeding is essentially one of contract between the parties whose consent is required. It is a contract of a very solemn nature, and for this reason the law has wisely thrown around its creation certain safeguards, by requiring, not only that it shall be entered into in the presence of a judge, but also that it shall receive his sanction, which is not to be given until he has satisfied himself of these three things: 1. That the person adopting is ten years older than the child. 2. That all the parties whose consent is required do consent, fully and freely, to the making of such contract. 3. That the adoption contemplated by the contract will be for the best interest of the ■child adopted.

It is apparent that the only object of section 227 of the Civil Code in directing the judge to examine the parties who are required to appear before him, is that he may satisfy himself in relation to the facts just mentioned, and the subject of the .examination is to be confined to these three matters; and in order that he may thus satisfy himself that a child over the age of twelve years, or a wife whose consent is necessary, do freely consent to the adoption, the judge is required to examine the parties separately; but the examination of a child whose consent to the contract is unnecessary, and who is of such tender years that it is incapable of exercising any judgment as to the effect of such contract upon its interests, would certainly be an idle thing to do, and the section should not receive such an extremely narrow and literal construction as to make the examination of such a child mandatory, and its omission fatal to the creation of a valid contract binding upon adults who have done everything required of them in order to manifest their full and free consent to such adoption. The provision in relation to the separate examination of the parties to such contract, most certainly in so far as it is applicable to a child under the age of

*539 consent, is simply directory, and is to be complied with or not in the discretion of the judge. “Unless a fair consideration of a statute directing the mode of proceeding of public officers shows that the legislature intended compliance with the provision in relation thereto to be essential to the validity of the proceeding, it is to be regarded as directory merely. Thus, directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by the failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and, if the act is performed, but not in the time or in the precise mode intended, it will still be sufficient, if that which is done accomplishes the substantial purposes of the statute.” (Sutherland on Statutory Construction, p. 575; Jones v. State, 1 Kan. 273; People v. Supervisors, 34 N. Y. 272.) In this latter case the court said: “ A strict and literal adherence to the letter and form of a statute in minor or non-essential particulars will often defeat a remedy or destroy a right which it was the principal intention of the legislature to create or provide. Where the statute directs an act to be done in a certain way, or at a certain time, and a strict compliance as to time or form does not appear to the judicial mind to be essential, the proceedings are held valid, though the command of the statute has been disregarded.”

Keeping in view the foregoing rule for determining whether the provisions of a statute relating to the mode of proceeding by a public officer are mandatory or only directory, and looking at the substantial object of the statute in requiring the judge to examine the parties appearing before him for the purpose of entering into the contract of adoption, it is clear to us that the examination of a child under the age of consent should not be deemed indispensable to the validity of the adoption proceeding.

The cases of Long v. Hewitt, 44 Iowa, 363; Tyler v. Reynolds, 53 Iowa, 146; Shearer v. Weaver, 56 Iowa, 578; Furguson v. Jones, 17 Or. 204; 11 Am. St. Rep. 808; Ex parte Chambers, 80 Cal. 219, and Ex parte Clark, 87 Cal. 640, cited by respondent, are neither of them in conflict with the views here expressed, as an examination of those cases will show. In Iowa, *540 the statute requires that the act of adoption shall be evidenced by an instrument in writing, signed by the parents or others named, and provides that “ upon the execution, the acknowledgment and filing for record of such instrument, the rights, duties, and relations between the parent and child by adoption shall thereafter .... be the same as exist by law between the parent and child by lawful birth,” and it was held in each of the above-cited cases from the supreme court of that state, that until the instrument was filed for record, its execution was not complete; that the filing for record was in the nature of a delivery, and was necessary in order to give validity to the instrument. Thus, in Tyler v. Reynolds, 53 Iowa, 146, the court said: “ The statutory conditions and terms are that the written instrument must be executed, signed, acknowledged, and filed for record. When this is done the act is complete. If the named requisites are not done, then the act is not complete, and the child cannot inherit from the parent by adoption.” This is the ground upon which all the above-cited cases from the supreme court of Iowa.were decided, and it will thus be seen that they are all based upon the sound legal principle that until the parties whose consent is necessary to the formation of a contract have performed every act which tiie statute requires of them in order to manifest such consent, the contract is not complete.

In Oregon adoption is a judicial proceeding, and under the statute of that state, in order to give the court jurisdiction to proceed, the natural parents must be served with notice, or must consent to the decree, and in Furguson v. Jones, 17 Or. 204; 11 Am. St. Rep. 808, the only matter decided was that a decree of adoption without notice to the natural parent, and without his consent, was void for want of jurisdiction in the court rendering the decree. The distinction between that case and this is most obvious. In this state, as we have seen, adoption is simply a matter of contract, and in the case before us all of the parties whose consent was necessary to the formation of such contract entered into the same freely and voluntarily and with the sanction of the proper officer.

In Ex parte Chambers, 80 Cal. 216, involving the right to the custody of a child, it appeared that the order for its adoption was made without the consent of the managers of the orphan *541 asylum having the care of the child, and such consent was required by the statute under which the adoption proceeding was had. The court held the adoption invalid because of the failure to comply with this essential requirement of the law, and it was with reference to this omission that the court used the general language relied upon by the respondent here, saying: “ The power to adopt minor children is a creation of the statute unknown to the common law, and the mode must be held to be the measure of the power.” The court simply meant by this expression that the statute having made the consent of certain parties necessary, there could be no valid adoption without such consent.

In Ex parte Ciarle, 87 Cal. 638, the natural mother was seeking to obtain the custody of her child from John D. Reulin and his wife, who claimed to be the adopted parents of the child, and the case was submitted to the court upon the record of the adoption proceedings alone, and the court in its opinion, speaking of this record, said: “It will be observed that the parents consented to the adoption of their child by Jacob Reulin; that the agreement to adopt is signed by David Reulin, and that the order of the court gives the child to Jacob Reulin. There is nothing in the record of the proceeding to show that the names Jacob Reulin, David and John D. Reulin indicate one and the same person.” And upon this record, which did not show that the parents of the child had ever consented to its adoption by John D. Reulin, or that he had ever agreed to adopt the child, or that the judge had ever made an order declaring the child adopted by him, the court held that the natural mother was entitled to the custody of the child, saying : “ In our opinion the order is void, and affords respondents no warrant for the detention of the child. It confers no rights upon them, and is manifestly too uncertain when read in connection with the agreements and consents upon which it was based, to render any one liable as the parent by adoption, especially one whose name does not appear in the record at all.” And this was all that was decided in that case, and was the only question before the court. It is true that it was also said in the opinion in that case by way of argument: “The child by adoption cannot inherit from the adopting parent, unless the act of adoption has been done in strict accordance with the *542 statute. No matter how persuasive may be the equities of the child’s case, or how clear the intention of all parties, it must appear that the statutory conditions have been strictly performed, otherwise the relation never existed, and the right to inherit never was acquired.....It cannot be said that one condition is more important than another.” But it is evident that the court, in saying that one condition or provision of the statute concerning adoption was no more important than another, was speaking of essential conditions, such as under a proper construction of the statute are mandatory, as the case then under consideration was one where there had been a failure to observe essential requirements of the law, the order of adoption not being based upon an agreement signed by the person named in such order as the adopting parent; nor did the record there show any consent upon the part of the natural parents of the child to its adoption by the respondents in that case.

In Cohens v. Virginia, 6 Wheat. 264, Chief Justice Marshall repeated the rule which it is always necessary to keep in mind when construing the opinion of a court. He said: “It is a maxim never to be disregarded that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” And Lord Manners in Revell v. Hussey, 2 Ball & B. 286, said upon this same point: “It is always unsatisfactory to abstract altogether the reasoning of the court in any reported case from the facts to which this reasoning is meant to apply; it has a. tendency only to misrepresent one judge and to mislead another.”

The opinion in Ex parte Clark, 87 Cal. 638, when construed and limited as it must be by the facts of that case, is not in conflict with the conclusions here announced, that the statute in relation to adoption must receive a reasonable construction; and that a substantial compliance with its essential provisions is all that is required in order to affect a valid adoption. The essential foundation of the proceeding is the consent of the persons named in the statute, and when this has been given in the presence of the proper judge, and manifested in writing, and by the order of such judge, the contract cannot be declared invalid *543 because of some merely technical objection to the manner in which the judge who signed the order of adoption may have discharged his duty in the premises.

2. • The finding of the court that the agreement of the deceased to adopt the petitioner, and the consent of her father thereto, were not signed or acknowledged before the county judge of San Joaquin County, is not sustained by the evidence. The only basis for this finding seems to be that there was no evidence that the papers were actually signed in the presence of the judge, and that the recitals in the order show that they were signed and filed with the clerk of the court before the parties appeared before the judge. But the evidence does show that the papers were actually signed by the parties, and the court so finds, and they were presented to the judge at the time he made his order thereon. This was sufficient. The substantial thing required by the statute is that the parties whose consent is. required do consent in the presence of the judge, and that such consent is manifested by writings signed by them and then delivered by them for that purpose; but the particular point of time when such written consent was signed, that is, whether it was done in the presence of the judge when the order was made, or before coming into his presence'for the purpose of obtaining such order, is a matter of no importance whatever.

Judgment and order reversed.

Garoutte, J., McFarland, J., and Fitzgerald, J., concurred.