Smith v. . Allen

161 N.Y. 478 | NY | 1900

William H. Allen died at his residence in the city of Brooklyn, on the eighteenth day of February, 1890, leaving a last will and testament dated February twenty-fifth, 1875, with a codicil thereto dated March fifth, 1879, which will and codicil have been admitted to probate in the county of Kings. The testator, after making certain specific bequests, including a legacy of ten thousand dollars to the appellant Greene, whom he describes as his adopted daughter, gave the income of all his residuary estate both real and personal to his widow during life, or until she should again marry, and then by the eighth clause of his will provided "all the rest, residue and remainder of my real and personal estate, if any, remaining after the death or remarriage of my said wife, and after the payment of all the legacies mentioned in this, my will, I give, devise and bequeath to such person or persons as would be legally entitled to succeed to and inherit the same in case I died intestate, and to their heirs, executors, administrators and assigns forever." In the codicil he states that he has loaned to the husband of the appellant Greene upwards of ten thousand dollars, and he, therefore, revokes the bequest to her of that sum and authorizes his executors, at his decease, to cancel and discharge any indebtedness that may exist on behalf of the appellant's husband.

The testator died leaving him surviving a widow, the appellant Greene, and five nephews and nieces. His widow died on the fifteenth day of August, 1896, and of the five nephews and nieces, Frank Allen alone survives, the other four having died after the death of the testator and during the life of his widow.

Two questions are presented for review by the appeals in this case. Mrs. Greene claims to have been the adopted daughter of the testator, and as such to be his sole heir at law and next of kin and entitled to all of the residuary estate. It appears that Mrs. Greene was born in 1851; that she was placed in the Church Charity Foundation in 1856, and was subsequently taken therefrom by Mrs. Allen, the testator's wife. She continued thereafter to live with the testator in his family until her marriage and was treated in every respect as a daughter. The testator in both his will and codicil describes her as his adopted daughter, but it is not claimed that she was ever adopted by any instrument in writing, or that there is any written evidence of an adoption further than an entry in a book kept by the Church Charity Foundation, as follows: "Sarah Frances was adopted by Captain and Mrs. Allen." This, we think, is not sufficient to constitute an adoption under the statute of 1873, chapter 830, as amended by the Laws of 1887, chapter 703. This question we have recently had under consideration in Matter of Thorne (155 N.Y. 140), in which we distinctly held that the act of 1873, authorizing the adoption of children, referred "to those forms of adoption theretofore existing by virtue of special statutory enactments contained in the charters of charitable societies that received destitute and homeless children, and whose officers were permitted to execute agreements of adoption on their behalf with suitable persons willing to assume the obligations of parents." And that the "legislature did not have in contemplation the legalizing of private agreements executed without authority of law and containing no safeguards or restrictions of any kind as to the transmission of property." This case disposes of the question adversely to the claim of Mrs. Greene, unless we enter upon a reconsideration of the question and overrule the decision in that case. This we are asked to do by her counsel, but he has failed to convince us that our former decision was erroneous or that equity would be promoted by the change.

The other question brought up for review arises upon the appeal of Frank Allen, who also claims the entire residuary estate by reason of his being the survivor of the testator's nephews and nieces. His contention is that the remainder was contingent and did not vest until after the death or remarriage of the testator's widow. Much has already been written upon this subject, but we do not deem it necessary to enter upon a review of the authorities, for, to our minds, there can be no doubt as to the intention of the testator. Were there persons in being at his death who were entitled to the estate on the termination of the life estate of the widow? Under the will he gave, devised and bequeathed "to such person or persons who would be legally entitled to succeed to and inherit the same in case he died intestate, and to their heirs, executors, administrators and assigns forever." Who would inherit in case he had died intestate? Surely his heirs at law and next of kin then in being. He not only gave the remainder to them, but he gave it to their heirs, executors, administrators and assigns. This clearly constituted a vested remainder under the statute.

The representatives of the widow have not appealed, and, consequently, no question is presented for review on their behalf.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.