118 N.Y.S. 745 | N.Y. Sur. Ct. | 1909
The question presented for determination in this matter is: Does Lucy Barlow, a legally adopted daughter of one Jonathan Hyatt, a brother of the testator, share in the distribution of the real and personal property of the testator, with his natural-bom nephews and nieces, under the terms of the will ? The provision of testator’s will under which this controversy arises reads as follows: “ Fourth. I give, bequeath and devise all the rest, residue and remainder of my estate, both real and personal to all my nephews and nieces (children of my brothers and sister), share and share alike.”
At the time of Hyatt’s death he had the following nephews and nieces related by blood, viz.: Fred, Bert and Mary Hyatt, children of his -deceased, brother James; and James H., Henry and Francis' E. DuBois, children of his sister Mary. His brother Jonathan, who is still living, had no children, except an adopted daughter, Lucy Barlow, the claimant upon this -accounting for a share of testator’s residuary estate. In arriving at a decision I have disregarded all parol evidence, except that which relates to the testator’s knowledge -as to the fact of Lucy Barlow’s adoption by his brother Jonathan, and have endeavored to draw from the language of the will, aided by such evidence and -the circumstances surrounding the testator at the time of its execution, his intention as to who were to be objects of his bounty, and whom he desired to have his property, and
It clearly appears that testator never recognized the existence of any artificial relation of parent and child between Jonathan and Lucy. In fact, he did not know that she was legally adopted, 'but understood and believed that she was not. In the light of his knowledge at the .time of the preparation of the will and the incidents occurring at" that time, it appears that he did not intend to give the claimant any portion of his estate, and that he was satisfied from the knowledge he possessed that the language of the will would exclude 'her as a legatee, and his property be divided among the children bom to his “ brothers and sister,” 'as he evidently intended. I believe that when he desired his property to go to his “ nephews and nieces ” he 'intended those persons who held such relation by the operation of usually recognized relations in society, and that it would be contrary to the wish,.and. intention of the testator for me to read
My conclusion, therefore, is, that Lucy Barlow should he excluded in the distribution of this estate.
Let a decree be entered accordingly.
Decreed accordingly.