Gilliam v. Guar. Trust Co. of New York

• Citation: 78 N.E. 697,186 N.Y. 127
• Parties: GILLIAM v. GUARANTY TRUST CO. OF NEW YORK et al.
• Decision Date: 02 October 1906
• Court: New York Court of Appeals

186 N.Y. 127

78 N.E. 697

GILLIAM

v.GUARANTY TRUST CO. OF NEW YORK et al.

Court of Appeals of New York.

Oct. 2, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Anna T. Gilliam against the Guaranty Trust Company of New York, as trustee, and others. From a judgment of the Appellate Division (9( N. Y. Supp. 758), reversing a judgment sustaining a demurrer to the complaint, and overruling the demurrer, James S. Dyett and others appeal. Affirmed.

The question certified to us for decision is the one whether the complaint herein sets forth facts sufficient to constitute a cause of action.

Cullen, C. J., and O'Brien and Werner, JJ., dissenting.

John D. Henderson, for appellants.

John R. Abney, for respondent.

HISCOCK, J.

This action was brought by plaintiff for the purpose of having it adjudged that she, an adopted daughter, was the heir at law of one Frances J. Thomas, and, as such, entitled to take certain real estate under a deed which conveyed said real estate to the use of Mrs. Thomas during life and after her decease to her heirs at law. The appellants are brothers of Mrs. Thomas, and by their demurrer to the complaint, which fully sets out the facts, challenge the right of plaintiff to take as an heir at law under the circumstances of this case. I am led to the conclusion that plaintiff's claim is well founded, and that the judgment appealed from should be affirmed.

In 1853 Eliza Hunt conveyed land to one Findlay, as trustee of Frances J. Dyett (afterwards Thomas), ‘in trust for the use and benefit of said Frances J. Dyett during her natural life, and, after her decease to her heirs at law, except that the said party of the first part does hereby expressly authorize and empower the said party of the second part as such trustee as aforesaid * * * to sell and convey said lands and premises * * * and the money or proceeds of said sale to be invested as soon as conveniently may be in other real estate in the name of the party of the second part but for the use of said Frances during her life, and, after her decease, to her heirs at law, and if the sale of said lands should be made, the money or proceeds of said sale shall, until reinvested, again be considered as land, and held in trust for the benefit of said Frances during her life and after her decease to her heirs at law.’ The defendant trust company has been appointed trustee in the place of said Findlay. In December, 1883, said Frances J. Dyett, who had been intermarried with Francis H. Thomas, and her said husband, pursuant to the provisions of chapter 830, p. 1243, of the Laws of 1873, entitled ‘An act to legalize the adoption of minor children by adult persons,’ duly adopted plaintiff, who then was an infant, as and for their own lawful child, and thereafter, said persons so adopting, and the plaintiff herein, sustained towards each other the mutually acknowledged relation of parent and child. The husband died in the year 1888, and Mrs. Thomas died February 24, 1905, leaving her surviving no children or descendants of children. At the time the deed was executed, and at the time Mrs. Thomas died, except for plaintiff, appellants, her brothers, were her sole heirs at law and next of kin, upon the assumption that their father was dead. There appears to have been at the date of the death of Mrs. Thomas some accumulation of personal property as the result of the trust in her favor, and no question is made by the appellants that such personal property should pass to the plaintiff. The only question arises with reference to the inheritance of the real estate.

The appellants' demurrer, which, in effect, denies plaintiff's right to take said real estate under the provisions of the deed, rests upon two distinct propositions: In the first place, they urge that they, being the only heirs at law of Mrs. Thomas when the deed was executed, took a vested right to the remainder in the real estate upon her death, which could not be defeated by the subsequent adoption of the plaintiff. And, secondly, they insist that whether this first proposition be maintained or not, the plaintiff, under the statutes defining the rights of inheritance of adopted children, was not an heir at law who could take the real estate. I shall consider these propositions in the order stated.

The first one may be somewhat briefly disposed of. I do not regard it essential to consider in detail the arguments which have been addressed to us for the purpose of determining whether the rights of appellants under the clause of final disposition in the deed at the time of its execution were in the nature of a contingent remainder or of a vested remainder, which would be divested by death before the death of the life beneficiary or which would open to admit other heirs arising before that event. Whatever disagreement there might be about the technical definition to be given to appellants' positionas the only heirs at law of Mrs. Dyett when the deed was executed, I regard the law as well settled which, so far as concerns the practical question in this case, governs the construction of the clause of remainder, and fixes the time as of which the heirs at law under it are to be ascertained. The general rule applicable to the facts here presented is well established that when property at a future date is to pass to a certain class of persons it will be distributed amongst the persons who compose such class at the date of distribution. Paget v. Melcher, 26 App. Div. 12, 18,49 N. Y. Supp. 922; affirmed, 156 N. Y. 399, 51 N. E. 24;Matter of Baer, 147 N. Y. 348, 41 N. E. 702;Bisson v. W. S. R. R. Co., 143 N. Y. 125, 38 N. E. 104;McGillis v. McGillis, 11 App. Div. 359,42 N. Y. Supp. 921. Therefore, whatever may have been the legal situation of the appellants at the time when the conveyance was made, as demonstrated in terms of legal phraseology, if before the death of Mrs. Thomas other persons rather than they had become the heirs at law, such latter persons are to be regarded as answering the requirements and taking the benefits of the grant. It is conceded, as I understand it, by the learned counsel for the appellants that if the life beneficiary had left her surviving a natural child, such child would have been her heir at law to the exclusion of the appellants, and would have taken the real estate; but it is insisted that Mrs. Thomas could not, by the artificial process of adoption, create an heir who would divert the course of title of the real estate from the persons who were the natural heirs at law. And we are thus brought to the consideration of the second question above outlined, whether plaintiff was an heir at law for the purpose of taking the real estate in question. This involves an examination of the statutes relating to the rights of adopted children.

The act of 1873, under which plaintiff was adopted, excluded her from any right of inheritance. After other enactments upon the subject which are immaterial here (chapter 272, p. 225, of the Laws of 1896 [Domestic Relations Law]) was adopted, which, at the date of the death of Mrs. Thomas, provided (section 60): ‘Nothing in this article in regard to an adopted child inheriting from the foster parent, applies to any will, devise, or trust made or created before June 25, 1873, or alters, changes, or interferes with such will, devise, or trust, and as to any such will, devise, or trust, a child adopted before that date is not an heir, so as to alter estates or trusts, or devises, in wills so made or created.’ Section 64 of said act and article, as amended by chapter 408, p. 333, Laws 1897, provided that the adopted child should take the name of the foster aprent, and that ‘the foster parent or parents and the minor sustain towards each other the legal relation of parent and child and have all the rights, and are subject to all the duties of that relation, including the right of inheritance from each other * * * and such right of inheritance extends to the heirs and next of kin of the minor, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting, but as respects the passing and limitation over of real and personal property dependent under the provisions of any instrument...