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If, however, the bastard's domicil is in fact the same as the father's at the time of the legitimating act, there is no doubt that the child, though an adult, becomes legitimated."

§ 101. Legal Status of Adoption. The status of adoption, like that of subsequent legitimation is unknown to the common law, though familiar in the jurisprudence of the Roman law, from which it has been introduced by statute into many of the States of the Union. Like subsequent legitimation also, adoption presents the peculiarity of a plural status. Indeed this may be more pronounced in the case of adoption than in that of legitimation, since the relations of more persons are involved therein. This plurality of the status may cause very serious embarrassment in the solution of some of the questions which present themselves under this head.

The result of adoption under the statutes is usually that the adopted child ceases in law to be the child of its natural parents, so far as their rights and obligations are concerned, and becomes the child of the adopting parents to all intents and purposes, with the rights and obligations incident thereto. The statutes usually provide that the adoption shall originate in a judicial proceeding instituted in the court of the child's residence, upon petition filed by the party desiring to adopt it, and that the natural parent or the guardian shall be a party to the proceeding.1

Thus it will be seen that adoption involves an alteration, not only in the status of the person adopted and in that of the adopting parent or parents, but in that of the natural parents also. Here are, or may be, three sets of domicils, whose laws may each claim some share in regulating the status of the parties concerned. But practically these will generally be reduced to two, since the person adopted is usually an infant, and hence will have the domicil of its parents.2

Ives v. McNicoll, 59 Ohio St. 402, 43 L. R. A. 772; Scott v. Key, 11 La. Ann. 232.

1 For examples of such statutes, see Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628; Foster v. Waterman, 124 Mass. 592; Furgeson v. Jones, 17 Or. 204, 11 Am. St. Rep. 808.

2 At the same time it is conceivable that he may be an adult, with a domicil of his own apart from his parents. But in such case the domicil of the

If the adopting parents, the natural parents (if any), and the child are all domiciled in the State where the adoption proceedings take place, and the status is there validly created, no doubt will arise. The status is a permanent and universal one, and once created will continue and will be recognized as existing everywhere, until dissolved according to the law of the parties' domicil, or so long as the recognition of the relation does not work an injustice to the residents of the State where the question arises (forum) or contravene its established policy.

If the domicil of the adopting parent is not identical with that of the adopted child, it is believed that the law of the child's domicil will determine the status, if the adoption takes place there (as it usually will), while if the adoption should occur in the domicil of the adopting parent, the law of his domicil will govern. The case is analogous to that of divorce. In both, a decree of court is required, and, upon principles already noticed in discussing the exterritorial force of a decree of divorce, a court has no jurisdiction over a matter of status unless one of the parties at least is domiciled in its territory. It can give no decree, which will have exterritorial effect, touching the status of non-residents. But it is not necessary that both parties should be domiciled there.*

natural parents will only be of importance when some question of their status, rights, or duties arises. No cases of the kind have as yet been passed upon. All the decided cases relate entirely to the status as exists between the child and the adopting parent. See Furgeson v. Jones, 17. 204, 11 Am. St. Rep. 808.

Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Melvin v. Martin, 18 R. I. 650, 30 Atl. 467; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A. 207; Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628, 23 L. R. A. 665; Kee. gan v. Geraghty, 101 Ill. 26. See Woodward v. Woodward, 87 Tenn. 644,

11 S. W. 892. In most if not all these cases there were statutes in the State of the forum permitting adoption, differing only in detail from the statutes under which the adoption actually occurred.

• Ante §§ 88 et seq. In Van Matre v. Sankey, 148 Ill. 356, 36 N. E. 628, 23 L. R. A. 665, the adopting parent was domiciled in California, the adopted child in Pennsylvania, and the adoption took place under decree of a Pennsylvania court, in accordance with Pennsylvania law. The Illinois court did not even inquire into the law of California (the adopter's domicil) upon the subject of adoption, but looked only to the law of Pennsylvania,

The proper law to determine whether a particular person is the legitimated or adopted child of another being ascertained in accordance with the principles discussed in this and the preceding sections, it still becomes necessary to consider the effect of the legitimation or adoption in other States. In general the status, thus created under the proper law will be recognized everywhere, unless the policy of the forum or the interests of its inhabitants forbid its enforcement and demand the substitution of the lex fori. Instances of this have been already seen. Thus, the domicil of a legitimated or adopted infant at once commences to follow the domicil of the father or adopting parent, as though the child were born to the parent in wedlock. We have also seen that in general he will inherit the parent's property, whether personal or real, regardless of the law of its situs touching adoption."

In Foster v. Waterman, 124 Mass. 592, the Massachusetts court held that an adopting parent there domiciled could not adopt a child domiciled in New Hampshire under the decree of court and the statutes of the latter State, so as to be effective in Massachusetts. But this case turns rather upon the construction of the New Hampshire statute, which was held to be applicable only where the adopting parent as well as the adopted child were domiciled in New Hampshire. See Furgeson v. Jones, 17 Or. 204, 11 Am. St. Rep. 808. Ante, §§ 43, 44. Ante, § 12.

CHAPTER IX.

STATUS OF FIDUCIARIES.

§ 102. Dual Nature of Fiduciary Status. Under the head of "Fiduciary Status" will be grouped the principles regulating the law properly applicable to fiduciaries, not only with respect to their appointment and qualification, but with regard also to their title to property, their rights, powers, and liabilities, as between them and the beneficiaries on the one hand, and as between them and third persons on the other.

It must be carefully observed that every fiduciary occupies two relations: one towards the beneficial owner of the trust estate, and quite a different one towards third persons interested in the administration of the trust fund, for example, creditors. Thus an executor, administrator, guardian, or trustee is appointed not only for the benefit of his legatee, distributee, ward, or cestui que trust, but also in order to manage and control the property committed to him, to collect and pay debts, to prosecute and defend suits, to sell and invest property, etc. Third persons, as well as the beneficiaries, may be interested in the trust. And these creditors, debtors, or other third persons may be citizens of other States than that wherein the fiduciary and beneficiaries reside.

It might work a serious injury to the citizens of the forum if a foreign fiduciary were allowed to administer upon property there situated except in accordance with its own laws (lex fori et situs). The fact that the fiduciary is a resident of, and appointed in, another State, and that the beneficiaries also reside abroad, is immaterial. No State can be expected to permit property within its borders to be taken away, sold, or dealt with in any manner by a fiduciary, a mere quasi-legal official appointed in another State and subject to other laws, when to do so might jeopardize the interests of some of her own citizens who might

justly claim that the property should be administered by their own law, the law of the forum and situs of the property.

Upon these principles it is now universally admitted that, in the absence of statute, in any case in which third persons are interested, the status of the foreign fiduciary is only local and temporary. He must in general be reappointed and must qualify in every State wherein he desires to administer the property or rights of action committed to his charge. Third persons are entitled to and may demand all the security and protection afforded by the laws of the State where the property is situated. The general rule in these cases is that the law of the forum and situs of the property will regulate the appointment, qualification, rights, title, and liabilities of the fiduciary, so far as concerns the relations between them and third persons.1

But so far as the relations between the fiduciary and the beneficiaries of the trust are concerned (third persons not being interested), even when the question arises in third States, the law of the domicil of the owner or beneficiary (the legal situs of the owner's person and personal property) will control, both in respect to personal rights and rights relating to the personal property.'

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Thus it will be seen that with respect to fiduciaries the general rule is to apply the "proper law" as between the fiduciary and the beneficiary, while, as between the fiduciary and third parties, the lex fori is substituted for the proper law.

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Various Classes of Fiduciaries.

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§ 103. Illustrations The general principles noticed in the preceding section may be better understood with the aid of one or two examples.

1 Burbank v. Payne, 17 La. Ann. 15, 87 Am. Dec. 513; Speed v. May, 17 Penn. St. 91, 94, 55 Am. Dec. 540; Dawes v. Head, 3 Pick. (Mass.) 128, 145; Fay v. Haven, 3 Met. (Mass.) 109; Dial v. Gary, 14 S. C. 573, 37 Am. Rep. 737, 738-739; Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534; Mayo v. Equitable, etc. Society, 71 Miss. 590, 15 So. 791; Smith v. Bank, 5 Pet. 518, 525; Vaughn v. Northup, 15 Pet. 1; McLean v. Meek, 18 How. 16, 18; Mackey v. Coxe, 18 How. 100, 104; Wilkins v. Ellett, 9 Wall. 740, 742.

2 See Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 584.

• Mayo v. Equitable, etc. Society, 71 Miss. 590, 15 So. 791; Lamar v. Micou, 112 U. S. 452.

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