In a proceeding for a construction of a will, the appeal is from an order of the Surrogate’s Court, Queens County, striking out defenses interposed by appellants which denied respondent’s status as a distributee, on the ground that her adoption by the testatrix had been abrogated. Order reversed on the law, with $10 costs and disbursements, and petition dismissed. The findings of fact are affirmed. Respondent was adopted by the testatrix and her husband in 1920. In 1927 the foster parents, respondent and respondent’s father executed an agreement to abrogate the adoption; the matter was examined and approved by the Surrogate who duly indorsed his consent upon such agreement. The original abrogation papers (the agreement and consent) were filed and recorded in Queens County, wherein the foster parents resided, but a copy thereof was never filed and recorded in Kings County, where respondent’s father resided. In our opinion, it was error to hold that under the then applicable statute (Domestic Relations Law, § 116; L. 1920, ch. 287, repealed by L. 1938, ch. 606) the abrogation never took effect. In 1927 the relevant portion of this statute read as follows: “The agreement [of the parties] and consent [of the Surrogate, to the abrogation] shall be filed and recorded in the office of the county clerk of the county where the foster parent resides, and a copy thereof filed and recorded in the office of the county clerk of the county where the parents or guardian reside * * * if they reside * * * within this state. From the time of the filing and recording thereof, the adoption shall be abrogated ”. (Italics and matter in brackets added.) The statute did not require, nor in our opinion did the Legislature intend to provide, that an adoption should be abrogated only on the filing
