In re Macrae
Decision Date | 14 June 1907 |
Citation | 81 N.E. 956,189 N.Y. 142 |
Parties | In re MACRAE. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Application by Charles H. MacRae to vacate and set aside a decree of adoption of Madeleine Hope MacRae by James H. Rogers and another. From an order of the Appellate Division, First Department (103 N. Y. Supp. 1133), affirming an order of the Special Term denying petitioner's application, he appeals. Affirmed. The material facts appear in the dissenting opinion of Cullen, C. J. infra.
William C. Beecher and Cortland Betts, for appellants.
W. C. Prime and E. C. Morse, for respondents.
The order of the surrogate denying the appellant's motion to set aside the second adoption of Madeleine Hope MacRae was, in my judgment, rightly affirmed. In this state the authority for the adoption of children is wholly dependent upon the statutes. Matter of Thorne, 155 N. Y. 140, 49 N. E. 661. A state may authorize its courts in the exercise of the power and duty of parens patriae to conduct proceedings for the adoption of minor children without notice by publication or otherwise to the child, its parents, relatives, or next of kin. Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628,23 L. R. A. 665, 39 Am. St. Rep. 196, with note; Estate of Williams, 102 Cal. 70, 36 Pac. 407,41 Am. St. Rep. 163;Gibson, Appellant, 154 Mass. 378, 28 N. E. 296. I do not mean to approve the exercise of such authority by the state or attempt to define the legal effect of such an adoption. I am of the opinion that the Legislature of this state should consider the advisability of providing by statute that notice must be given to the heirs at law and next of kin of a minor in every case where a judge or surrogate is asked to allow and confirm an adoption of such minor as provided by statute. However desirable it may be that such notice should be given, there is now no provision in our statutes relating to adoption which requires notice to the heirs at law and next of kin of the minor or otherwise, except as it is included within the provisions of section 61 of the domestic relations law, which provides for the consent of the persons therein in named. Laws 1896, p. 226, c. 272. It is conceded that the adoption of Madeleine by her paternal grandfather and grandmother was regular, and that it resulted in giving to her and to her foster parents and in taking from her natural father the rights and authority as stated and provided by the statutes relating to adoption. Prior to the second adoption, the will of Madeleine's foster mother had been duly admitted to probate and recorded, and letters of guardianship had been issued to Elizabeth P. Rogers as testamentary guardian of Madeleine thereupon. At the time of the second adoption, therefore, Elizabeth P. Rogers, the maternal grandmother of Madeleine, had the legal, as well as the actual, custody of Madeleine. Code Civ. Proc. § 2851. The question for determination in this court is a very narrow one. Its answer should not be materially affected by the fact that a second adoption without the consent of the natural parents or the survivor of them would make serious abuses possible. The possibility of a wrong arising from a second adoption as in this case by a maternal grandmother and the testamentary guardian of the minor without the consent of its natural parent or parents is no greater than the possibility of a wrong arising from the natural parents or parent arbitrarily refusing their consent to an adoption that would be to the great advantage of the minor. I admit that, if the consent of the natural parent of Madeleine is required by statute before a second adoption can be lawfully consummated, such consent goes to the very foundation of the jurisdiction of the court in allowing and confirming the adoption. Such consent, however, in my judgment, is not required by the statue. Section 60 of the domestic relations law provides: ‘Adoption is the legal act whereby an adult takes a minor into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor. * * *’ Section 61 provides: ‘Consent to adoption is necessary as follows: (1) Of the minor if over twelve years of age; (2) of the foster parent's husband or wife, unless lawfully separated, or unless they jointly adopt such minor; (3) of the parents or surviving parent of a legitimate child * * * but the consent of a parent who has abandoned the child, or is deprived of civil rights, or divorced because of his or her adultery or cruelty, or adjudged to be insane, or to be an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, is unnecessary; (4) of a person of full age having lawful custody of the child, if any such person can be found, where the child has no father or mother living, or no father or mother whose consent is necessary under the last subdivision. * * *’ Section 62 provides. * * *’Section 63 provides: ‘If satisfied that the moral and temporal interests of the child will be promoted thereby, the judge or surrogate must make an order allowing and confirming such adoption, reciting the reasons therefor, and directing that the minor shall thenceforth be regarded and treated in all respects as the child of the foster parent or parents. * * *’ Section 64 provides: * * *’Section 66 provides:
The general rights of adopted children have frequently been considered by this court. In Matter of Cook, 187 N. Y. 253, 79 N. E. 991, the court say. See Gilliam v. Guaranty Trust Co., 186 N. Y. 127, 78 N. E. 697. The adoption divests the...
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