135 N.Y.S. 849 | N.Y. App. Div. | 1912
Lead Opinion
On June 1, 1896, Rhoda E. Hoyt executed and delivered to the United States Trust Company a deed of trust, by virtue of which property aggregating in value $86,798.75 was transferred upon the following trusts: “To have and to hold said property to the party of the second part [The United States Trust Company], its successors and assigns,, in trust, however, for the following uses and purposes, namely, to hold, manage, invest and reinvest the same; to collect and receive the interest, income and profits thereof, and after deducting all proper charges and expenses, to pay over the said interest, income and profits to my son Frank R. Hoyt for and during his natural life, and upon the death of my said son Frank R., to pay over the said interest, dividends, income and profits to Margaretta A.,
On November 16, 1901, Rhoda E. Hoyt made her last will and testament whereby she devised certain real estate in the town of Watkins to her son Frank and to his wife Margaretta, for their use or that of the survivor for life, with remainder to their adopted child “Dorothea.”
On December 6, 1901, Rhoda E. Hoyt died, and her said last will and testament was duly admitted to probate by the Surrogate’s Court of New York county.
Margaretta A. Hoyt died before her husband, Frank R. Hoyt, the latter dying intestate February 24, 1911. They had no issue. He left him surviving his adopted daughter Dorothy, his brother Reuben, his sister Isabel, and the three children of
The question presented by this appeal is whether Frank E. Hoyt’s adopted daughter Dorothy is the sole next of kin of her foster father, and as such entitled to all the property as to which he died intestate, or whether his brother, sister, nephew and nieces are Ms next of kin under the Statute of Distributions of this State. The answer to this question determines the right to the principal of the trust fund in controversy, with any accumulations of interest or income therefrom.
The status and rights of adopted cMldren are of purely statutory creation. The adoption of children and strangers to the blood was known to the Athenians and Spartans, the Eomans and-ancient Germans and is recognized in both the French and Spanish law, but it was unknown to the common law of England and exists in the States of the Union solely by force of statutes. (Carroll v. Collins, 6 App. Div. 106; Matter of Thorne, 155 N. Y. 140.) One of the earliest statutory references to adoption occurs in chapter 244 of the Laws of 1849, entitled “An Act to incorporate the American Female Guardian Society,” wherein section 6 conferred upon the society, in case the child had been surrendered to them by its natural or legal guardians by an instrument in writing, authority “to place such child by adoption or at service in some suitable employment and with some proper person or persons, conformably to the laws of this State in regard to the binding out of indigent children.” The first general statute referring to the subject-matter enacted in this State was chapter 830 of the Laws of 1813, entitled “An Act to legalize the adoption of minor children by adult persons.” By its terms, adoption was defined as the legal act whereby an adult person takes a minor into the relation of child, and thereby acquires the rights and incurs. the responsibilities of parent in respect to such minor,” Its operation was limited to the cases prescribed in the act. The consent of the parents of the child, or if dead of an adult person having its lawful custody, was required, as well as that of
The first general provision for adoption of children from institutions is to be found in chapter 438 of the Laws of 1884, entitled “An Act to revise and consolidate the statutes of the State relating to the custody and care of indigent and pauper children by orphan asylums and charitable institutions.” By section 7 thereof such corporations were authorized , to place children for adoption with suitable person or persons by a written instrument to be joined in by the corporation and by the person adopting and his wife or her husband. Section 8 prescribes: “ Each person taking a child by adoption, in pursuance of this act, is hereinafter designated as the foster parent of such child, and such foster parent and such child shall, after such adoption, sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that
“ Section 1. Section ten of chapter eight hundred and thirty of the laws of eighteen hundred and seventy-three, entitled ‘An act to legalize the adoption of minor children by adult persons,’ is hereby amended so as to read as follows:
Ҥ 10. A child, when adopted, shall take- the name of the person adopting, and the two thenceforth shall sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation including the right of inheritance and the heirs, and next of kin of the child so adopted shall be the same as if the said child
It will be noticed that this is an amendment only to the act of 1873, is by its terminology only a repetition (with changes) of that of the act of 1873, and that neither by the title nor by anything in the text does it refer to adoptions under the act of 1884. In Simmons v. Burrell (8 Misc. Rep. 388), however, it was held that where a child had been adopted pursuant to the provisions of the act of 1849 from the Female Guardian Society, such adoption having been duly had on December 13, 1861, the saving clause in the act of 1873 (§ 13) brought adoptions theretofore had, pursuant to any method practiced in this State, within the purview of that statute and gave all persons thus adopted the right to inherit and take as next of kin the property of the intestate who had adopted them after the amendment of 1887, This proceeded upon the - theory that an adoption legally made in 1861, under the act of 1849, and by the act of 1873 recognized as having the force of an adoption thereunder, became subject to the amendment of 1887 to the law of 1873. But nothing in the Burrell case bears upon the effect to be given to an adoption under the independent act of 1884. In Carroll v. Collins (6 App. Div. 106) the adoptions prior to 1873 which were deemed within the scope of that act were limited to those practiced under the sanction of law, that is, those authorized by some statute like the one of 1849. It will be seen that after the amendment of 1887 the two classes of adopted children still existed, (1) those taken from private custody; (2) those taken from institutions. To the former of these, the right of inheritance had expressly been given; to the latter, it had not been granted in terms.
In 1896 the Domestic Relations Law was first passed (Gen.
It is conceded, however, that the question of the right of an adopted child to inherit from a foster parent is determined by the law in force at the time of the . foster parent’s death. (Dodin v. Dodin, 16 App. Div. 42; alfd., 162 N. Y. 635; Theobald v. Smith, 103 App. Div. 200.)
When Frank E. Hoyt died, the law governing the rights of adopted children was the Domestic Eelations Law (Consol. Laws, chap. 14 [Laws of 1909, chap. 19], as amd. by Laws of 1910, chap. 154). Article 7 thereof related to the adoption of children. The arrangement and provisions of the act of 1896 were followed in this later act. The sections of the act of 1896 were reproduced, the numbers alone varying; thus section 60 of the act of 1896 became in the new act section 110 and so on, the same divisions being preserved. Section 116, relating to the abrogation of voluntary adoption, was amended in 1910. The section defining the effect of adoption is numbered 114, following the one providing for the filing of the order (113) and beginning with the same word “thereafter;” the following section (115) refers to adoptions from charitable institutions. For the same reasons given in discussing the act of 1896 I am convinced' that the right of inheritance still attached under this later enactment to all children lawfully adopted from public institutions, whether adopted under its provisions or under those of the act of 1884. It contained the same saving clause as to prior adoptions, and the schedule of laws repealed shows the entire repeal of the act of 1873 (Chap. 830) and 1887 (Chap. 703) and all of chapter 438 of the Laws of 1884, except section 2 and the first sentence of section 4, which do not refer to adoption.
As Dorothy Hoyt, at the time of her foster father’s death, intestate, had the right of inheritance from him given to her by
And the court quoted with approval from Kohler’s Estate (199 Penn. St. 455) with reference to an adopted child: “ The will of John Kohler, father of the cestui que trust, was written thirty-six years before the decree of adoption, and that event, therefore, was not reasonably within the contemplation of the
The decision in Matter of Leask (197 N. Y. 193) is not to the contrary, for there the court simply held where the income of a trust fund was payable to Hoagland for life and upon his death “leaving a child or children surviving him” the principal was to be paid to such child or children, in default of which it was to revert to the residuary estate, that an adopted child did not come within the intent or meaning of the testator and could not take the principal.
The judgment appealed from should be affirmed, with costs to both appellants and respondent, payable out of the fund.
McLaughlin, Clarke and Scott, JJ. concurred; Ingraham, P. J., dissented.
Dissenting Opinion
I am unable to concur in the affirmance of this judgment.
Prior to the enactment of the Domestic Eelations Law (Gfen. Laws, chap. 48; Laws of 1896, chap. 272) there were two systems in force relating to the adoption of children and the rights given to the adopted child differed materially, depending upon the particular statute under which the child was adopted. Those adopted under the provisions of chapter 830 of the Laws of 1873, as amended by chapter 703 of the Laws of 1887, gave to the adopted child the legal relation of a child and all the rights and subject to all the duties of that relation, including the right of inheritance, and undoubtedly if the respondent had been adopted under the provisions of this act she would have been ■ the next of kin of the life tenant. An adoption under the act of 1873, however, only applied to the children whose natural parents had consented to the adoption and whose adoption had been legally authorized by the order of a county judge specified in the act. The other method of adoption was that provided by chapter 438 of the Laws of 1884, which related to the adoption of children from orphan asylums or other institutions for the care of destitute or
The record discloses that on the 4th of December, 1894, by an instrument in writing executed by Frank B. Hoyt, the beneficiary for life of the fund in question, and his wife and the Nursery and Child’s Hospital, the said Frank B. Hoyt and Margaretta A. Hoyt, his wife, did, pursuant to section 7 of chapter 438 of the Laws, of 1884, adopt the respondent and become her foster parents. When the respondent was, therefore, adopted by Frank B. Hoyt and his wife she acquired no right of inheritance and by express provision of the statute was not to be deemed to sustain the legal relation as respects the passing and limiting over of real and personal property under and by virtue of deeds, conveyances, wills, devises and trusts. This act, so far as it affected adoption, remained in force unamended by the Legislature down to the time of the passage of the Domestic Relations Law (Laws of 1896, chap. 272), to which attention will be called. Chapter 703 of the Laws of 1887 was an amendment to chapter 830 of the Laws of 1873 and could only affect a child adopted under the provisions of that act.
Prior to the year 1892 commissioners had been appointed for a revision of the General Laws of this State, and by chapter 677 of the Laws of 1892 the first chapter of such general revision known as the General Laws was passed. By section 32 of that act, which was known as the Statutory
In view of the repeal of section 8 of chapter 438 of the Laws of 1884, and the failure of the Legislature to re-enact any provision as to the status of. a child adopted from charitable institutions under section 65 of the act, I think the statute could be construed so as to make the provisions of section 64 of the act applicable to an adoption from a charitable institution so far as it affected the right of inheritance from the foster parent; but I do not think we can extend this right of a foster child so as to make such child the heir at law or next of kin of the foster parent so that it could take as remainderman under a deed or will executed by a person other than the foster parent, which contained a remainder over to the children or hens at law and next of kin of the foster parent. Under the Statute of Distributions (Code Oiv. Proc. § 2132; Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 98, as amd. by Laws of 1909, chap. 240) a child of a person dying intestate becomes a next of kin because of his relation to the intestate as a child, and a person, therefore, dying intestate leaving children, his children legally occupying that relation to him become his next of kin. It is quite clear that the provisions of section 60 of the Domestic Relations Law of 1896, now section 110 of the Domestic Relations Law of 1909 (Consol. Laws, chap. 14; Laws of 1909, chap. 19), have no application to an adoption under the act of 1884, and the respondent must become next of kin of the life tenant under section 64 of that act, now section " 114 of the Domestic Relations Law of 1909.. The deed in question, which was executed June 1, 1896, provided that upon the death of the grantor’s son Frank R., if his wife should not be living, his trustees should “ divide the principal of said trust fund or the securities in which it may then be invested into as many equal shares as there shall be children of my said son Frank R. then.living, and to pay over to each of such children of my son Frank R. one equal share or portion of said principal. * * * In case there shall be no issue of
The first question presented, it seems to me, is whether this deed of trust contain a limitation over of real or personal property dependent on the foster parent Frank E. “ dying without heirs.” It is difficult to conceive of a phrase more inappropriate than this “dying without heirs.” Certainly anyone who would he next of kin of Frank E. would be his heir; hut I think the only construction that can be given to this provision must he that an adopted child shall not be deemed a child of the foster parent so as to defeat the rights of remaindermen under an instrument by which a remainder over is limited to the heirs or next of kin of the foster parent. Here the court below held, and I understand it to be conceded in the prevailing opinion, that the respondent could not take under the provision of the trust deed which gave the remainder to the children of the life tenant, but it was held by the court below and that is sustained by the prevailing opinion that this adopted child can take as next of kin of the life beneficiary.
In construing this deed of trust we are required to carry out the intention of the donor. She was the mother of Frank, the life beneficiary. She provided that the income of the property should be paid to Frank during his life and upon his death should be divided among his children, making provision for the issue of a deceased child to take the parent’s share, and then she provided that if Frank should die without leaving issue the money should be divided among his next of kin according to the laws of the State of New York. I can find nothing in this instrument to indicate an intention on behalf of the donor that upon the failure of Frank leaving issue of his blood surviving the respondent should take because as an adopted child she would have been his next of kin. If we apply the principle
It follows, therefore, that the judgment should be reversed.
Judgment affirmed, with costs to both appellants and respondent payable out of the fund.