Garay, Application of
| Decision Date | 10 July 1987 |
| Citation | 518 N.Y.S.2d 723,136 Misc.2d 233 |
| Parties | In the Matter of the Application of Roger GARAY for a Decree Revoking Letters of Administration of the Goods, Chattels and Credits of Kenneth L. Etheridge, Deceased. Surrogate's Court, Kings County |
| Court | New York Surrogate Court |
Nathan F. Grossman, P.C., Valley Stream, for petitioner Roger garay.
Michael N. Connors, Brooklyn, for respondent Herbert Etheridge.
BERNARD M. BLOOM, Surrogate.
This is a proceeding to revoke letters of administration.
This decision should remove any uncertainty as to the right to intestate distribution from one's natural family members after adoption.
The decedent, Kenneth L. Etheridge, died intestate on June 11, 1984. A petition for appointment as administrator was presented by a nephew, Herbert Etheridge, who listed himself and twelve other nephews and nieces as the distributees. At a kinship hearing conducted before a law assistant-referee, there was oral testimony that within his marriage to Marie Etheridge, the decedent had fathered a son whose given name was Roger, but it was shown also that a number of years later, on October 13, 1955, a final order of adoption made Roger the legal child of Angel Garay, whom his mother had married after her divorce from his natural father. Upon this and other kinship evidence which need not be detailed, letters of administration issued to Herbert Etheridge under decree dated February 21, 1985.
Roger Garay, who was not afforded citation in the administration proceeding, is the petitioner. He purports to be the sole distributee in intestacy and, as such, claims the right to be substituted as the decedent's personal representative. In so maintaining, he concedes the accuracy of the proof received concerning his adoption by his stepfather, but urges that a mistake of law is inherent in the court's tacit conclusion that he has no interest in his natural father's estate. It is also alleged that a statutory ground exists for revocation of the letters in that they were granted by a false suggestion of material fact on the part of Herbert Etheridge (see SCPA § 711[4] ). But as the only matter which the administrator is accused of having misrepresented was with whom the beneficial interest in the estate lies, it is easily seen that aside from the addition of a hint of animus, this is only a restatement of the mistake of law argument in another form.
In 1955, when the petitioner's adoption took place, the subject of rights of inheritance involving adopted persons, both in intestacy and under wills or other instruments, was addressed at length at former section 115 of the Domestic Relations Law. With respect to the former, it was provided that "the rights of a foster child to inheritance and succession from his natural parents remain unaffected by adoption." (§ 115, para. 2). For a great number of adopted children, that privilege was more apparent than real since, under the general law of descent and distribution found in the Decedent Estate Law as it then stood, a child who had been born out of wedlock, unless later legitimated by marriage of the parents, was a distributee of his or her mother only if she left surviving no legitimate issue and under no circumstances was a distributee of his or her father (D.E.L. § 83[14] ). But since Roger Etheridge was born within marriage, he was, of course, a presumptive intestate successor of his father, Kenneth L. Etheridge, and remained so after having become the adopted son of Angel Garay.
In 1961, section 115 of the Domestic Relations Law was renumbered section 117 without alteration of its text. (L.1961, ch. 147). However, major revision was in store.
Shortly after it came into being in 1962, the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, better known as the Bennett Commission, embarked upon a diligent study of the place of the adopted child in the law of intestacy in this State and, for comparative purposes, around the nation. A report was prepared (Second Report of the Commission, Legis. Doc. No. 19 [1963], Report No. 1.2 C at 148[206] ) which brought to the Legislature's attention what were perceived to be anomalies in New York's existing statutory and decisional law. One of these was that although a child's right to take in intestacy from his natural parents after adoption was enshrined by statute, as noted above, and, though by case law, he could continue to be an heir of his other natural kindred as well (Matter of Adler, 202 Misc. 1100, 117 N.Y.S.2d 331 [Surr.Ct.Bronx Co.1952]; Matter of Gourlay, 173 Misc. 930, 19 N.Y.S.2d 122 [Surr.Ct. Kings Co.1940]; Matter of Monroe, 132 Misc. 279, 229 N.Y.S. 476 [Surr.Ct. Westchester Co.1928]; Matter of Landers, 100 Misc. 635, 166 N.Y.S. 1036 [Surr.Ct.Oneida Co.1917] ), the converse was not true; the natural parents, and, by extension, other biological relatives, were not distributees in the estate of a child who had been adopted (§ 117, para. 1). Another was that the adopted child, while a distributee of the adoptive parents (§ 117, para. 3), and a successor also of their natural and other adopted children and of their descendants (§ 117, para. 7), enjoyed no such status with respect to other kindred of the adoptive parents (Matter of Hall, 234 A.D. 151, 254 N.Y.S. 564 [3d Dept.1931], aff'd, 259 N.Y. 637, 182 N.E. 214 [1932]; Hopkins v. Hopkins, 202 A.D. 606, 195 N.Y.S. 605 [4th Dept.1922], aff'd, 236 N.Y. 545, 142 N.E. 277 [1923] ), yet kindred of the adoptive parents of any description could succeed to the intestate property of the adoptee (Matter of Hollstein, 251 A.D. 771, 295 N.Y.S. 598 [3d Dept.1937] ).
What concerned the Commission more than these incongruities, however, was the fact that the law operated to keep the child tied to his natural family though it was deemed socially and psychologically desirable that severance be complete and that the child be fully incorporated into the new family unit in all respects. It was argued that the harm that could be done in many instances by causing the natural family background to be revealed to those previously ignorant of it was so great as to outweigh the benefit to adopted children generally from the existing policy by which intestate succession in both family trees sometimes occurred. Another observation was that the retention of heirship rights from the biological family often created uncertainty in title to property, not only with respect to children known to have been adopted whose new identity and fate could not be ascertained but also in instances where no such child was known but whose existence could not be negatived with assurance.
At the same time, the Commission published a separate report the subject of which was the law governing inclusion or exclusion of adopted children as members of their new families where class designations such as "children," "issue," "descendants" and "heirs" in wills and trusts were encountered. (Second Report of the Commission, Legis.Doc. No. 19 [1963], Report No. 1.3B at 163[221] ). Fault was found with the "precautionary addendum," a rule of law dating to 1887 (L.1887, ch. 703) which had found its way to section 117 of the Domestic Relations Law ). It provided that when an instrument made the passing over or limitation of real or personal property dependent upon the contingency of an individual dying without heirs, an adopted child should not be deemed the child of such person so as to defeat the rights of remaindermen. Not only was this rule as written in derogation of the recognition of the child as a full member of his adoptive family, but as it was the only statutory treatment of the matter of membership of adopted children in class designations, some courts had inferred from it a presumption against adopteds where the actual question presented was only of their sharing in a disposition to a class rather than taking to the exclusion of remaindermen.
In accordance with its views, the Commission drafted, and the 1963 Legislature accepted, a bill amending section 117 (L.196 ch. 406). The enactment gave adoptees distributive rights in the estates of those of their adoptive kindred from which they had theretofore been excluded, eliminated the precautionary addendum, and, in the following words, addressed the subject of interest here:
The rights of a foster child to inheritance and succession from and through his natural parents shall terminate upon the making of the order of adoption except as hereinafter provided.
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When a natural or foster parent, having lawful custody of a child, marries or remarries and consents that the stepfather or stepmother may adopt such child, such consent shall not relieve the parent so consenting of any parental duty toward such child nor shall such consent or the order of adoption affect the rights of such consenting spouse and such foster child to inherit from and through each other and their natural and adopted kindred. (Emphasis added.)
The closing sentences of the amendment recited that it would apply to the estates or wills of persons dying on or after March 1, 1964, to inter vivos instruments executed on or after that date and to earlier instruments subject to revocation or amendment by the grantor. Wills of persons dying prior to that date and inter vivos instruments executed beforehand which could not be revoked or amended by the grantor were to continue to be governed by the provisions of section 117 in force prior to the amendment.
In 1966, again on the initiative and advice of the Bennett Commission (Fourth Report of the Commission, Legis.Doc. No. 19 [1965], 1965 Supp. to Report No. 1.2C at 102 [1410] ), section 117 was amended in two respects. (L.1966, ch. 14). The first change was a tightening of the language of the 1963 amendment concerning an adoption by the spouse of a natural parent of the child with the consent of said parent to foreclose any unintended inference that the child...
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