180 Misc. 147 | N.Y. Sur. Ct. | 1943
Petitioners, the maternal grandparent of the infant and his wife, seek to adopt the only issue of a deceased daughter, a female infant under the age of fourteen. The application is opposed by a sister of the deceased father of the infant, and her husband, testamentary guardians of the property and person of the infant.
Most of the facts are undisputed. The infant in question is the sole issue of Ruth and Leonard Mendelsohn who were lawfully married on March 15, 1935. After residing in the State of New York for approximately six years, during which period the infant was born, the parents moved to the State of New Jersey establishing their residence in New Brunswick. Thereafter the mother became ill and died on September 12, 1941. During the last illness of the mother in August, 1941, and in accordance with the wishes of both parents, the infant went to live with her grandfather and his wife in the city of New Rochelle, Westchester County, New York, where she has resided continuously ever since. After the death of the mother, the father of the child gave up the home formerly occupied by them in New Brunswick and thereafter lived in a rented room in New Brunswick where he was employed. From the date of death of his wife to the date of his demise he was a frequent visitor and guest at both the home of his sister in New Brunswick and his father-in-law in New Rochelle. On April 28,1942, the father of the child died leaving a last will and testament dated September 26, 1941, which was probated in the Surrogate’s Court of Middlesex County, New Jersey, on May 9, 1942. In and by said will the father appointed his father-in-law, Joseph D. Farkas, one of the petitioners herein, his sister, Reave M. Rosenthal, his brother, Robert E. Mendelsohn, and his brother-in-law, Arnold B. Rosenthal, executors and testamentary guardians of the property and person of his daughter. Letters testamentary and letters of testamentary guardianship were issued by said Surrogate’s Court to Reave M. Rosenthal, Robert E. Mendelsohn and Arnold B. Rosenthal, on May 9, 1942. The petitioner Joseph D. Farkas failed to qualify either as executor or testamentary guardian. The petitioner Joseph D. Farkas is the sole surviving grandparent,
A determination of the remaining question as to “ lawful custody,” however, is not without difficulty. It is well settled, of course, that adoption was unknown to the common law (Matter of Thorne, 155 N. Y. 140; Carpenter v. Buffalo General Electric Co., 213 N. Y. 101) and, being a creature of the statute, exact compliance with the statutory requirements is imperative. (Matter of Cohen, 155 Misc. 202; Matter of Anonymous, 178 Mise. 142.) Unless, therefore, petitioners comply with the provisions of article 7, I have no power to grant the petition. Section 111 provides in part that “ * * * consent to adoption shall be required as follows: * * * 2. Of the parents or surviving parent of a child born in wedlock; * * * 4. Of any person or authorized agency having lawful custody of the foster child.” Both parents of this infant being dead, subdivision 4 applies. It is clear that I have no authority to dispense with the prescribed consent except in the instances set forth in section 111, none of which exists in the instant case. (Ryan v. Sexton, 191 App. Div. 159; Caruso v. Caruso, 175 Misc. 290.)
In view of the refusal of the respondent testamentary guardians to consent to the proposed adoption, petitioners’ application must be denied unless it can be said, as a matter of law, that the petitioning grandfather has “ lawful custody ” of the child within the meaning oí the term as employed in subdivision
Furthermore, it was clearly inferred, if not definitely held, in People ex rel. Marabottini v. Farr (supra) “ lawful custody ” is synonymous with guardianship of the person, either testamentary or general. There the last surviving parent of an infant under fourteen left a will in which he designated the child’s paternal grandfather as guardian of her property but not of her person. The child was adopted upon the consent of the paternal grandparents without notice to the maternal grandmother. In holding that the adoption was void Justice Personiits said (p. 603): “ * * * but the infant had no lawful custodian, no guardian of her person, who could give the consent required by section 111, subdivision 4. This, it seems to us, was a vital defect. The infant, being under fourteen, could not consent. She was represented by no lawful custodian who could.” And further (p. 605) the learned justice said “ * * * that in fact said infant had no lawful custodian * * I am in accord with these views. There being no guardian of the person, general or testamentary, consenting to
The respondent testamentary guardians having refused to consent to the proposed adoption, it is unnecessary to pass upon the question as to the validity of the New Jersey probate decree under and pursuant to which they derived their authority or the extraterritorial authority of such testamentary guardians.
The application is denied.
Settle order.