43 Misc. 464 | N.Y. Sur. Ct. | 1904
By the third clause of his will William H. Hopkins directed his executors to invest his residuary estate, pay the income to his widow, Jemima, Hopkins for life and at her decease to divide the principal into four equal parts, three of which are given to the testator’s three sons-, and the other directed to be held in trust for a daughter. The will also provides: “ If either of my sons shall die before my wife, his share shall go to his children, and in default of children, to my surviving children and the children of such of them as may he dead, in equal shares, so that the children of one of my deceased sons or daughter shall take the same part as their parent would if living.”
This will was executed November 27, 1888. The testator died May 22, 1890. The will was admitted to probate June 7, 1890. Elias Hopkins, one of the testator’s sons, died April 4, 1903, and Jemima Hopkins, the testator’s widow, died December 4, 1903.
Elias Hopkins left no natural children, but it now appears that he legally adopted Charlotte Strong Field as a daughter, November 17, 1889, and she ha;s made a claim on the final accounting of the executors of William H. Hopkins to one-fourth of the remainder, which Elias Hopkins would have received had he survived his mother.
As the question involves ,a construction of the residuary
From the time of the enactment of chapter 830 of the Laws of 1873, the original legislation in this State on the-subject of adoption to the present, there has been no material change in the provision which expressly declares “ That in the passing and limitation over of real and personal property * * * dependent upon the person adopting dying without heirs, said child adopted shall not be deemed to sustain the legal relation of child to the person so adopting so as to defeat the rights of remaindermen.”
The purpose of this provision, which is plainly to prevent the defeat of testamentary disposition by supplying children through adoption, cannot be affected by a, construction of the whole section in reference- to inheritance, to defeat the plain intent of the Legislature to preserve rights of remaindermen, subject to be divested only as the testator or grantor willed. .
Upon this point the time of adoption should not control. It is not necessary that the remaindermen should become vested before the adoption. In the case at bar, as we now read the will, the testator gave one-fourth of the remainder to his son Elias, and if he, Elias, died without children before the termination of the life estate, then his share would pass to his surviving brothers and sister.
In the case of Mew York life Insurance & Trust Co. v. Viele, 161 N. Y. 11, which involved the construction of the will of Mary Griffin, on the distribution of the estate, the testatrix established a trust fund for the benefit of her daughter for life, and at her decease directed! the principal be paid to the daughter’s then living lawful issue. The daughter left no natural children, and the court was called upon to determine whether an adopted daughter came within the term “ lawful living issue,” and whether she could take the remainder. This daughter was adopted in a foreign country, but the court did not question her legal status. The conclusion is then reached that the term “ lawful living issue ” does not include children by adoption, and that the testatrix did not intend that the daughter’s adopted child should take. In this same will the claim of the adopted daughter conflicted with the rights of ten grandchildren, which accrued after the adoption, i. e., on the death of the daughter of the testatrix without issue.
After further convincing reasoning on page 22, peculiarly applicable to the case at bar, the court says: “ Moreover, if Olga had been adopted under the statutes of this State she would be precluded from taking anything under this will by the express words of the law regulating domestic relations, section 64, and the same result would follow under the decisions of the courts in cases quite analogous.” Section 64 of the Domestic Relations Law is a re-enactment of the original adop
The claim of Charlotte Strong Seixas is, therefore, disallowed.
Decreed accordingly.