
    [No. 9068.
    Department One.
    November 19, 1910.]
    
      In the Matter of the Guardianship of Max Leander Wells, a Minor.
      
    
    Guardian and Ward — ■Jurisdiction—Residence. A finding that the residence of a child was at King county, is warranted, where it appears that its mother had been staying there before leaving for New York, intending to return to take up new work there, and left the child there with relatives of the father, although prior thereto she had spent some time with her own parents in Kitsap county.
    Adoption — Review—Discretion. Under Rem. & Bal. Code, § 1698, authorizing an adoption where the court is satisfied of the fitness and propriety thereof, a ruling will not be reviewed except for abuse of discretion.
    Adoption- — Discretion—Guardian and Ward. Upon the- hearing of consolidated applications for the adoption of an orphan by relatives of the mother, and for guardianship by relatives of the father, the infant having no estate, it is not an abuse of discretion to deny the adoption and grant the guardianship, where both parties are suitable to have the care of the child.
    New Trial — Newly Discovered Evidence. A new trial will not be granted for newly discovered evidence that is almost wholly cumulative and would not change the result.
    Appeal from a judgment of the superior court for King county, Frater, J., entered April 30, 1910, granting a petition for the appointment of guardians, upon findings of the court, in a contest for the custody of a minor.
    Affirmed.
    
      Douglas, Lane Douglas, for appellants.
    
      Brady fy Rummens, for respondents.
    
      
       Reported in 111 Pac. 778.
    
   Parker, J.

This is a controversy over the custody of Max Leander Wells, a minor, now three years old, son of Max Wells and Elsie Priest Wells, both deceased. The father died June 22, 1907, at Portland, Oregon. The mother then came to Seattle to the home of F. Boyd Wells and Mrs. Clarissa Ruelle, brother and sister of the deceased father and husband, where the child was born July 12, 1907. Thereafter the mother lived part of the time with her sister-in-law, Mrs. Ruelle, and part of the time with her parents, Leander J. Priest and wife, at Kingston, in Kitsap county. She was employed as a teacher or tutor at both Kingston and Seattle at different times. She became interested in the subject of teaching defective children, and went to Rochester, New York, to attend a school to receive training in that work. She left her child with Mrs. Ruelle, at Seattle, expecting to return there to take up her new work. After being at Rochester a short time, she died on October 15, 1909. The child has been in the care and custody of Mrs. Ruelle ever since.

On January 5, 1910, F. Boyd Wells and Mrs. Clarissa Ruelle, filed a petition in the superior court of King county asking to be appointed guardians of the child. On the 11th day of January, 1910, Leander J. Priest and wife, maternal grandparents of the child, filed a petition in the superior court for Kitsap county asking for the adoption of the child. The adoption matter came on for hearing first, when counsel for Mr. Wells and Mrs. Ruelle appeared and objected to the jurisdiction of the court, upon the ground that the child was not a resident of Kitsap county but of King county. The proceeding upon that hearing resulted in counsel agreeing to the court ordering the transfer of the adoption matter to the superior court for King county for trial, on account of the convenience of witnesses, the jurisdiction question not being waived. Thereafter both matters were consolidated by the superior court for King county. Counsel for Mr. and Mrs. Priest objected to the jurisdiction of the superior court for King county to hear the guardianship matter, upon the ground that the child was not a resident of King county but of Kitsap county. Their theory seems to be that the court had jurisdiction of the adoption matter, but only because of the change of venue. The consolidated matters were tried by the court, resulting in the court finding that the child was a resident of King county, followed by a judgment denying the prayer of the adoption petition, and granting the prayer for the appointment of Mr. Wells and Mrs. Ruelle guardians of the child. From this disposition of the matters, Mr. and Mrs. Priest have appealed to this court.

Learned counsel for appellants first contend that the court was without jurisdiction, because the evidence does not warrant the conclusion that the child was a resident of King county. This, of course, presents only a question of fact. Counsel for both sides proceed upon the assumption that it is to be determined by the domicile of the mother at the time of her death. The evidence is conflicting as to where she-considered her domicile was for some time prior to her death. The evidence upon this question is voluminous, and goes into-considerable detail relative to her residence covering the period following her husband’s death. While the evidence shows that she spent a considerable part of her time with her parents at Kingston prior to the spring and summer of 1909, it seems clear that she had been staying with Mrs. Ruelle at Seattle-for some time before going to New York, that she had her child there, and left it there with Mrs. Ruelle with the intention of returning to Seattle to take up her new work. We think the court was warranted in concluding that the residence of the mother and child was in King county. It follows that the court had jurisdiction.

It is next contended that the court erred in appointing respondents guardians and refusing to permit appellants to-adopt the child. We are convinced by the evidence that both the appellants and respondents are suitable both morally and financially to properly care for this child. Appellants were asking for adoption of the child, not for his guardianship. The language of § 1698, Rem. & Bal. Code, clearly contemplates that the matter of adoption shall rest in the sound discretion of the court. The order is to be made when the court “shall be satisfied of the fitness and propriety of such adoption.” It is possible for the superior court to abuse this-discretion by denying a prayer for adoption. Such might be the case where k child is illegitimate and is entirely abandoned. And the person seeking the adoption is conceded to be a proper person to rear the child. True, these appellants cannot be said to be unsuited to the rearing of this child, but he is not abandoned to the world or illegitimate, but born in lawful wedlock of eminently respectable parents, whose name he bears. This is a heritage he no doubt will prize in the future. He is entitled to remain, in name, in law, and in the eyes of the world, the son of his natural parents, unless there be weighty reasons for his adoption by others. Who can read the last word of this dying mother to her boy and not see that the bearing by him of the name of that mother and father will always be a sweet remembrance and an influence for good. Upon her deathbed she writes to him this message:

“Darling Little Sonny:

“Before it is too late mother wants to write a letter to you so when you are a man you can read what I want you to be. Whatever you do precious, join a church as soon as you are old enough to understand what it means, and be an earnest Christian so you can come and be with me and father, and lover be good to auntie always. Be my brave little orphan and everything will be all right. Oh, sweetie I do so want my baby. Your loving mother,

“Elsie Wells.”

“Keep all the little things of mine dearie for your own wife and children. Have a nice home for auntie Maud, won’t you.”

Clearly, the learned trial court did not abuse its discretion in denying appellants’ petition for adoption.

Since no one but respondents applied for guardianship of the child, and the evidence shows that they are well fitted in every way to assume such guardianship, and manifest a willingness to bear the expense of his proper care, being fully able to do so, he having no estate; we see no reason' for interfering with the order of appointment.

Appellants moved for a new trial upon the ground-of newly discovered evidence. We find no merit in the motion. The new evidence claimed to have been discovered is almost wholly cumulative; and besides, we do not think it would change the result even if produced upon a trial.

We conclude that the learned trial court rightly disposed of the matters. Its judgment is affirmed.

Rudkin, C. J., Mount, Fullerton, and Goss, JJ., concur.  