New York Life Ins. & Trust Co. v. Viele

• Decision Date: 21 November 1899
• Citation: 161 N.Y. 11,55 N.E. 311
• Court: New York Court of Appeals Court of Appeals
• Parties: NEW YORK LIFE INSURANCE & TRUST CO. v. VIELE et al.

161 N.Y. 11

55 N.E. 311

NEW YORK LIFE INSURANCE & TRUST CO.

v.VIELE et al.

Court of Appeals of New York.

Nov. 21, 1899.

Appeal from supreme court, appellate division, First department.

Action by the New York Life Insurance & Trust Company, trustee under the will of Mary Griffin, deceased, against Terese Viele and others. From a judgment on a decision of the court construing the will, affirmed by the appellate division (47 N. Y. Supp. 841), Anna Maria Louisa Natalia Reichelt and others appeal. Affirmed.

Charles E. Hughes, for appellants.

Severyn B. Sharpe, for respondents.

O'BRIEN, J.

This appeal involves the construction of the third clause of the will of Mary Griffin, who died on the 9th day of March, 1888, at Dresden, in the kingdom of Saxony, one of the states of the German empire. She was the widow of Francis Griffin, of the city of New York, who died there in the year 1852, and the bulk of the property which the testatrix disposed of by the will in question came to her from her deceased husband. This will bears date July 6, 1878, and a codicil thereto July 28, 1882. Both instruments were executed at Dresden, where the testatrix had resided for over 30 years prior to her death, and relate to both real and personal property. The real estate is situated within this state, and the personal, consisting of bonds, stocks, and other securities, was all substantially under the control and management of the plaintiff, the testatrix receiving the rents and income thereof. The will was executed according to the laws of this state, and has been proved here, and the executors appointed resided here. The execution of the trusts and the management of the estate have devolved on the plaintiff, under certain provisions of the will framed for that purpose. The testatrix, after making certain specific bequests, disposed of the residuary estate in trust for the benefit of her children and grandchildren. The true meaning and construction of the trust provision for her daughter Emily has given rise to the present controversy, and that is the only question involved in the appeal. This provision is found in the third item of the will, and is in the following language: ‘Item Third. I direct my said executors to safely invest and keep invested one equal one-third part of my residuary estate, and to receive and collect the rents, issues, and profits thereof, and to apply the net income derived therefrom to the use of my daughter, Emily S. Lengnick, during her natural life. Upon her decease I direct that the principal of such share be paid over or transferred by my executors to her then living lawful issue, if any, and, if she leaves her surviving no such issue, I direct that the same be then added in equal parts or proportions to the principal of the several shares of my residuary estate hereinafter directed to be held in trust for my ten grandchildren hereinafter named. But if, at the decease of my daughter Emily, leaving her surviving no lawful issue, either of these ten grandchildren shall be deceased and there shall be living lawful issue of him or her, I direct that the part of proportion which would so be added to the share held in trust for such grandchild, if living, be then paid over or transferred by my executors to such issue (per stirpes). And, if either of my said ten grandchildren shall die before my daughter Emily, leaving no lawful issue who so survive her, I in that case direct that the part or proportion which would so be added to the share held in trust for such grandchild, if living, be paid over or transferred by my executors upon the decease of my said daughter to such of my said grandchildren as are then living, and to the then living lawfulis sue (taking per stirpes) of such of them as are then deceased.’ The record shows that Emily was married in the year 1857 to Carl Emil Lengnick, an officer in the Saxon army, with whom she lived until her death, on August 3, 1893. These were but two children of this marriage, both of whom predeceased the testatrix, dying in the year 1872. It will be seen by the clause of the will above quoted that a remainder was limited upon the life estate of Emily in favor of her ‘lawful issue,’ if any survived her, but, if not, then over to the other grandchildren of the testatrix for whose benefit trusts were created by other clauses of the will.

The courts below have determined that, since Emily died without descendants, the remainders limited upon her life estate devolve upon the other grandchildren in the proportions specified in the provision quoted. The correctness of this determination could hardly be questioned but for a peculiar state of facts existing when the will was made, and at the time of the death of the testatrix. It appears that in the year 1876 the defendant Olga Felicitas Heinicke, a niece of Emily's husband, was legally adopted by them in accordance with the law of the kingdom of Saxony, and taken into their family with all the rights conferred by such relation under the law of that country. The legal status conferred upon this adopted child by the law of the place will sufficiently appear from the following provisions of the Saxon Code, which, it is admitted, are based largely upon the doctrines of the civil law:

‘Sec. 1787. The taking into the relation of children, adoption, can only take place by contract made or acknowledged in court and approved by the sovereign of the adopting party.’

‘Sec. 1797. The reciprocal legal relationship between an adopted child and the adopting party is the same as that between a child of the marriage and its parents, in so far as it is not otherwise provided in the contract of adoption.’

‘Sec. 1808. Children begotten during wedlock and born during the lifetime of their father are from their birth under the paternal power. The same is true of illegitimate children on the subsequent marriage of their parents, accompanied by a decree of legitimacy by the sovereign, and adopted children on the approval by the sovereign of their adoption, unless they stand in the relations which, according to sections 1832 and 1833, would abolish the paternal power.’ ‘Sec. 2044. Adopted children inherit from the adopting party the same as children of marriage, unless otherwise provided in the contract of adoption, subject to the restriction contained in section 2568.’

‘Sec. 2046. If before the death of the adopting party an adopted son dies leaving descendants born in wedlock, or an adopted daughter dies leaving descendants born in or out of wedlock, such descendants inherit the same share which their father or mother would have taken.’

‘Sec. 2567. Adopted children and their descendants have the same right to an obligatory share against the party adopting them as descendants of marriage, unless otherwise provided in the contract of adoption.’

The articles of adoption and the royal decree approving the same appear in the record, and they contain nothing limiting or restricting in any way the rights conferred by the Code upon the children by adoption. Subsequently, Emily and her husband took into their family two other nieces of the husband, who were cared for and treated as children, but were never legally adopted. They have been brought in as defendants in this action, but we do not understand that any serious claim to share in the estate in question has been or can be made in their behalf. But the learned counsel who has appeared for Olga has presented to the court her claim to the remainder, limited on the life estate of her parent by adoption, in a very learned and elaborate argument. It is not too much to say that his industry has explored practically every source of knowledge on the subject. The reasoning in support of his contention, and the collection of authorities to sustain it, has given to the question involved an interest beyond what it would seem to merit from first impressions. The proposition sought to be established is that Olga is the lawful issue of Emily, though not related to her by blood, and so entitled to take the remainder, under the terms of the will, in the trust share of her parent by adoption. The main postulate in support of this contention is that the legal status of an adopted child, acquired by the law of adoption, is by the law of comity recognized in every other jurisdiction where such status becomes material in determining the right to take property by will or inheritance. The authorities cited seem to give much support to this proposition, and, so far as it is involved in or material to this case, we need not question it. Miller v. Miller, 91 N. Y. 315;Ross v. Ross, 129 Mass. 243;Burrage v. Briggs, 120 Mass. 103;Buckley v. Frasier, 153 Mass. 525, 27 N. E. 768;Sewall v. Roberts, 115 Mass. 262;Tirrell v. Bacon (C. C.) 3 Fed. 62;Hartwell v. Tefft, 19 R. I. 644, 35 Atl. 882;Warren v. Prescott, 84 Me. 483, 24 Atl. 948,17 L. R. A. 435;Patterson v. Browning, 146 Ind. 160, 44 N. E. 993;Markover v. Krauss, 132 Ind. 294, 31 N. E. 1047,17 L. R. A. 806;Atchinson v. Atchinson's Ex'rs, 89 Ky. 488, 12 S. W. 942;In re Rowan's Estate, 132 Pa. St. 299, 19 Atl. 82;Humphries v. Davis, 100 Ind. 274;Power v. Hafley, 85 Ky. 671, 4 S. W. 683;Gray v. Holmes, 57 Kan. 217, 45 Pac. 596;Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628,23 L. R. A. 665.

It is said that the status of Olga must be determined by the statutes of Saxony, construed with reference to the doctrines of the civil law upon which they are based, and, thus construed, she has all the rights of a child born in wedlock....