Matter of Charles

• Decision Date: 19 January 1951
• Citation: 200 Misc. 452
• Parties: In the Matter of the Construction of The Will of Emily Charles, Deceased.
• Court: New York Surrogate Court

200 Misc. 452

In the Matter of the Construction of The Will of Emily Charles, Deceased.

January 19, 1951.

Hatch, Root & Barrett for Bankers Trust Company, petitioner.

David L. Frothingham for Lillian M. Charles and another, as executors of Howard W. Charles, deceased, respondents.

Satterlee, Warfield & Stephens for Bank of New York & Fifth Avenue Bank and another, as executors of Emily L. Charles, deceased, respondents.

J. Fearon Brown, James H. Nichols and Richard C. Allison for Janet C. Reynolds and another, respondents.

Samuel Franklin, Daniel S. Levy and Bertram S. Bermar for Lillian E. Flather, respondent.

Raymond T. Armbruster, Christian H. Armbruster and Albert A. Jacobson for Ida M. Charles, individually and as surviving executrix of Emily C. Charles, deceased, and another, respondents.

Henry Allen Mark, special guardian for Edith Flather and others, infants, respondents.

FRANKENTHALER, S.

The provision in the will of the testatrix which grants to her daughter a testamentary power of appointment is here the subject of construction. By the terms of paragraph seventh thereof, the donee of the power was authorized to distribute the corpus of a trust created for her life benefit to and among her children or the issue of any deceased child, to her husband, and to her two brothers or their issue if they be dead, in any manner, share or proportion. In default of appointment, the testatrix directed payment of the assets to the children of the donee or the issue of predeceased children, or if there be none to the brothers of the donee or their respective issue. The donee died survived by two adopted children, to whom she appointed two thirds of the property subject to her power. The remaining one third thereof she appointed to her niece, the only daughter of a predeceased brother. The latter, however, asserts a right to receive the entire fund as sole remainderman, the other brother of the donee having also predeceased her, without issue. The niece claims that the adopted children do not qualify for appointment under the terms of the will and that they are, moreover, precluded from sharing in the appointment by virtue of section 115 of the Domestic Relations Law.

Two questions are thus presented. The first is whether adopted children are ordinarily to be included within the meaning of the word "children" as used in a will, in the absence of any token of testamentary intention. The second is whether in this case section 115 of the Domestic Relations Law prevents their inclusion on the theory that participation by them would defeat the rights of remaindermen. That section, which is pertinent to a resolution of both issues, reads in part as follows:

"The foster parents or parent and the foster child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from each other.

"As respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the foster child is not deemed the child of the foster parent so as to defeat the rights of the remaindermen."

In approaching these two issues, it is important to note that the adopted children are not here attempting to inherit property as heirs of one not a party to the adoption, claiming to be representatives of the adoptive parent. "The law of this State is well settled that a child adopted by a relative of a decedent is not of the next of kin of that decedent. (Dom. Rel. Law, § 114 [now § 115]; Hopkins v. Hopkins, 202 App. Div 606; affd. 236 N.Y. 545; Matter of Hall, 234 App. Div. 151; affd. 259 N.Y. 637; Winkler v. N. Y. Car Wheel Co., 181 App. Div. 239; Matter of Marsh, 143 Misc. 609.) It is stated by the Appellate Division, Third Department, in its decision in Matter of Hall (supra): `* * * the statute * * * does not * * * permit one to adopt heirs for third persons.'" (Matter of Brenner, 149 Misc. 412, 413; see Matter of Hodges, 294 N.Y. 58.) Nor are they claiming to be the primary takers in default of appointment under the terms of the will. Their sole claim is to membership in the class of permissible appointees, designated by the testatrix as "children" of a named ancestor.

Where there is a simple gift to such a class, adopted children may ordinarily participate therein unless language appears in the instrument showing an intention to exclude them (Matter of Horn, 256 N.Y. 294; Von Beck v. Thomsen, 44 App. Div. 373, affd. 167 N.Y. 601; Kemp v. New York Produce Exch., 34 App. Div. 175; see, also, Matter of Walter, 270 N.Y. 201, and Matter of Horvath, 155 Misc. 734). Adopted children also take as heirs of the designated ancestor unless there is evidence of a contrary intention (Gilliam v. Guaranty Trust Co., 186 N.Y. 127; United States Trust Co. v. Hoyt, 150 App. Div. 621; Matter of Cohn, 184 Misc. 258, affd. 271 App. Div. 775, affd. 297 N.Y. 536). The ground upon which they are included is found in the first part of the statute itself, which provides that upon completion of adoption proceedings the parties thereto shall sustain toward one another the legal relationship of parent and child. Von Beck v. Thomsen (supra) construing the statute, held it to be the basis for such inclusion. It was there said (pp. 380-381): "[W]hen we look at the relation which is created by this formal adoption, * * * 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 the 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. * * * [R]ights 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, immediately upon the adoption and from thenceforth, sustained the relation to the insured and his wife of a child, and she then had all the rights of that relation."

Similarly, in Matter of Horn (256 N.Y. 294, supra) the Court of Appeals, after reciting the provisions of the above statute, declared, at page 297: "The only instance in which the adopted child is not deemed to be the child of the foster parent is where future estates may be cut off by such adoption."

In Kemp v. New York Produce Exch. (34 App. Div. 175, 179, supra) the court quoted with approval the case of Sewall v. Roberts (115 Mass. 262), in which it was said (p. 278): "His general intention was that the property should go in the first instance to his children as a class. Whoever at his death fell within this class was within this general intention, and as his adopted daughter is by law his child, she belongs to the class intended to take".

Matter of Cohn (184 Misc. 258, supra) involved the position of an adopted child as an "heir" of a life tenant. The court, in permitting an adopted child, born long after the death of the testator, to take the entire remainder, said (pp. 261-262): "The statute which confers the right of inheritance on the foster child contains one limitation, and that applies where future estates created under a will or deed may be cut off by means of such adoption. * * * In order to defeat his right to take as an heir of the granddaughter, it must appear from the will itself that the testator indicated his intent to exclude an adopted child and to confine the gift to persons related by blood to him. In those cases wherein it was held that an adopted child does not take under a gift to heirs, the intent of the testator to exclude the adopted child or to limit the gift to blood relatives clearly appeared."

It has been urged, however, that a distinction should be made between a gift to heirs of a designated ancestor, such as was involved in the Cohn case, and a gift to his children, that an adopted child is properly characterized as an heir because of its right of inheritance given by statute, but that it is not in reality a child. Counsel cite Matter of Conant (144 Misc. 743) as so holding. It was there said, at page 744: "However liberal and sweeping the law may be in defining property rights of an adopted child it has not transformed the meaning of the word `child.'" That case, however, appears to be in plain conflict with the foregoing decisions (see, also, Matter of Cook, 187 N.Y. 253, and Carpenter v. Buffalo Gen. Elec. Co., 213 N.Y. 101), and cannot here be followed. Moreover, the distinction thus attempted to be drawn by counsel has no legal basis. While it is true that under the terms of the Decedent Estate Law an adopted child is an heir of its parent, under the terms of the Domestic Relations Law, quoted above, an adoptee is a child of its parent. There is only one situation where a distinction may be drawn between a gift to heirs and to children. Where a will or other instrument was drawn prior to both the Statute of Adoptions and the statute which declares that an adopted child is an heir of its adopting parent, a child adopted subsequent to both will take under a gift to the heirs of its parent but not under a gift to his children (Matter of Squire, 53 N. Y. S. 2d 698). A testator who drew such an instrument is presumed to be conscious of the fact that the Legislature may at any time change the statutory class of heirs (see Gilliam v. Guaranty Trust Co., 186 N.Y. 127, supra), but he would not, prior to the statute, have anticipated a change in the meaning of the word "children", and would have meant only natural children when the instrument was drawn. It should be noted, however, that the will in this case was executed at a...