60 N.Y.S. 1094 | N.Y. App. Div. | 1899
The 'facts out of which this controversy arose. are as follows: Baron Christian Thomsen, a resident of the city of New York, was insured in "three insurance companies by four policies of life insurance aggregatiiag $22,500. These policies were.dated in .the years 1858, 1865 and 1866. By the policies of the Manhattan Life Insurance Company the insurance was for the sole use of Mrs. Florentine Thomsen, wife of the insured, and the amount was to be paid “ to the said assured, her executors, administrators or assigns, for her sole.use * * - *. And in.case of the death of the said Florentine Thomsen before the decease of said Christian Thomsen the amount of the said insurance shall be payable to her children, for their use.” The third policy, issued by the New England Mutual Life Insurance Company, was for the sole benefit of Florentine . Thomsen, wife of the insured, if she should survive 'him. Other.wise, for the benefit of his then surviving children and the surviving descendants of any then deceased child or children. A policy of. the Germania Insurance Company was for the sole benófit of Florentine Thomsen, to be payable to her, “and in case of the death of the said Florentine Thomsen before the decease of the said Christian ■ Thomsen, the amount of the said insurance shall be payable after her death to her childi’en for their use.” At the time that these policies were executed the insured was married to Florentine.Thomsen, and there were two children of such marriage living, who are the defendants in this action, one child, Hugo A. Thomsen, born on October .17, 1850; another, Pepita, born November 23, 1854.
Florentine Thomsen, wife of the insured, died in the city of New York on November 29, 1895, leaving these two- children surviving, and the insured died in the city of New York on May 28,
This adoption was under chapter 830 of the Laws of 1873. Section 10 of that act, as amended by chapter 703, Laws of 1887, after prescribing the proceedings for an adoption, provides that “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, * * * •except that as respects the passing and limitation over of real and personal property, under and by deeds, conveyances, wills, devises :and trusts, dependent upon the person adopting dying without heirs, .said child adopted shall not be deemed to sustain the legal relatioü ■of child • to the person so adopting so as to defeat the rights of remaindermen.”
We have thus at the time of the death of the wife of the insured, when the interests of the children of the marriage accrued, the provision that the child when adopted should sustain towards the adopting parents the legal relation of parent and child and have all the rights of that relation, including the right of inheritance.
■ The defendants take several objections to the proceedings which resulted in the order for the adoption of the plaintiff, but we think that none of them affect the validity of the adoption. First, it is stated that the consent required by the statute does not appear to have been given. The petition of the insured and his wife, upon which the proceeding was instituted, stated that the child was then about four and one-half years old and had been in the family and undei* "the care of the petitioners since the month of March, 1874, someiliing over eighteen months; that the parents of the child were not known, but that a society called “the ‘Foundling Asylum of the Sisters of Charity in the City of New York,’ ” had received and
The objection taken by the defendants is that it did not appear that the consent of the parents of the child was obtained. By section 5 of the act of 1873 it is provided : “Except in the cases provided for in the next section, a legitimate child cannot be adopted without the consent of its parents, if living, or the survivor, if one is dead; nor an illegitimate child without the consent of its mother, if she is living.” By section 11 it is provided that “ Whenever .a parent has abandoned or shall abandon an infant child such parent shall be deemed to have forfeited all claim that he or she would otherwise have, as to the custody of said child or otherwise, against any person who has taken, adopted and assumed the maintenance of such child; and in such case the person so adopting, taking and assuming the maintenance of such child may adopt it under the provisions of this act, with the same effect as if the consent of such parents had been obtained. In all cases of abandonment after this act takes-effect the person adopting shall proeéed under the provisions of this act within six months after he or she has assumed the maintenance of -such child ; in such case of abandonment, the county judge may make the order provided for in this act without the consent of such parent or parents.” It appeared in the proceeding that the child
The objection also taken, that the instruments were executed in the presence of a person other than a judge before whom the proceedings were had, is hot of substance; as, by the order entered, the judge himself certifies that the persons adopting the child appeared before him, that the child was also present, and -these parties had executed the necessary consents and an agreement had been executed by the persons adopting the child as provided for by the statute. We do not think that any of the •objections taken by the defendant to the jurisdiction of the judge or the validity of the proceedings .for the adoption of the child are well taken.
The point- is -further taken by the defendants that the policy of Insurance, the proceeds of which constitute the subject-matter of this .action, created trusts which are by the specific language exempt by the operation of the statute of adoption, and the defendants -seek to bring the right to share in these. policies within the exception contained in section 10 of the statute. It seems to us, however, that the right to recover or to receive the moneys under these policies of insurance cannot be said to be the passing over of real and personal property under and by a deed, conveyance, will, devise: or ■.trust dependent upon the person adopting dying without heirs. By the execution of these policies of insurance there was created a ■contractual relation between the insurance companies and the persons -for whose benefit the insurance was effected. The obligation of the insurance companies was, that upon the death of the injured the
It also seems to us that it was the intention of this contract that all the children ¡of this marriage who were in existence at the time the policies became payable should share in these policies, whether born, before or after the issuance of the policies. There is nothing in the policy that would justify the conclusion that a child born to the insured and his wife after the taking out of the policy would not have been entitled to share in the proceeds. The policies all speak of the children in existence at the time of the death of the wife who would succeed at that time to the right of the wife to share in the proceeds of these policies; and when we look at the relation which is created by this formal adoption — that “ the two (the person adopting and the child) 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,” we see that it was the intention of the Legislature to put an adopted child in the same relation to its parents that a natural child would have. Upon such an adoption the relation of parent and child is created to the same effect as though the-child adopted had been born at the time of the adoption as a natural child- of the- adopting parents. The adopted parents inherit-from the adopted child as though such child had been a natural child. The parents would be the next of kin of the adopted child as though the adopted child had been a natural child. The adopted child would inherit from the parents as though such child -had been a natural child. . All of these rights that spring into existence at the-time of adoption put the adopted child in exactly the same position as though the child was' the natural child, with the exception that as to a conveyance, or bequest or devise which would pass to others upon the death of the adopting parent without issue, such adoption shall not change the disposition of such property. Thus, the plaintiff,
It would follow, therefore, that the plaintiff is entitled to judgment, and it is directed accordingly, with costs.
Van Brunt, P. J"., Patterson, O’Brien and McLaughlin, JJ., concurred.
Judgment directed for plaintiff, with costs.