Relations Law.16

Section 114 of the last named act relative to adoption and descents is now as follows:

Section 114. Effect of adoption.-Thereafter the parents of the minor are relieved from all parental duties toward, and of all responsibility for, and have no rights over such child, or to his property by descent or succession. Where a parent who has procured a divorce, or a surviving parent, having lawful custody of a child, lawfully marries again, or where an adult unmarried person who has become a foster parent and has lawful custody of a child, marries, and such parent or foster parent consents that the person who thus becomes the stepfather or the stepmother of such child may adopt such child, such parent or such foster parent, so consenting, shall not thereby be relieved of any of his or her parental duties toward, or be deprived of any of his or her rights over said child, or to his property by descent or succession. The child takes the name of the foster parent. His rights of inheritance and succession from his natural parents remain unaffected by such adoption. The foster parent or parents and the minor sustain toward 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, except as the same is affected by the provisions in this section in relation to adoption by a stepfather or stepmother, 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 or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen.

Section 114 of the Domestic Relations Law, as it now stands since the amendment of 1897, is not a model of clearness. The amendment of 1897 was introduced parenthetically, and not by a saving clause at it should have been. Under this section many questions of law will inevitably have to be decided by the courts before the precise operation of the statute is determined in all its bearings.

Effect of the Statutes Relative to Adoption. The adoption of children was unknown to the common law, and exists in this State only by virtue of the statutes, referred to above. The act of

16 Chap. 19, Laws of 1909.

17 Carroll v. Collins, 6 App. Div. 106, 109; Matter of Thorne, 155 N. Y. 140; Merchant v. White, 37 Misc. 376; Gilliam v. Guaranty Trust Co., III App. Div. 656, 666, 186 N. Y.

17

127; Matter of Huyck, 49 Misc. 391; Matter of MacRae, 189 N. Y. 142; see note to 7 N. Y. Annotated Cases for subject of adoption. Sed cf. Matter of Lane, 39 Misc. 522.

1873 applied only to adoptions after its passage.18 But the act of 1887, enabling adopted children to take by descent, applies to adoptions made before 1887, and under the act of 1873.19

While the adoption of a minor child now entitles it and its lineal descendants to take immediately by descent from the parents by adoption, and possibly also from the immediate children of the blood of such parents, yet the statute should, we think, be held to stop just there, and that the issue of the adopted child has no inheritable blood of the family into which the adopted child has entered by adoption, so as to entitle such issue to take by descent from other lineal ascendants or descendants of the adoptive parents; and certainly not from the collaterals of the family by adoption.20 But some utterances of the courts seem to incline the other way, although if so regarded, they are obiter dicta.21

It will be observed that the adopted child, by provision of the recent law of New York, takes by descent from natural parents

18 Chap. 830, Laws of 1873; Hill v. Nye, 17 Hun, 457; Matter of Thorne, 155 N. Y. 140; Brantingham v. Huff, 174 id. 53. Cf. Simmons v. Burrell, 8 Misc. 404, and see note, 29 Abb. N. C. 49, discussing this subject in an interesting

manner.

19 Chap. 703, Laws of 1887; Dodin v. Dodin, 17 Misc. 35, 16 App. Div. 42, 162 N. Y. 635; citing Ely v. Holton, 15 N. Y. 595; Kemp v. N. Y. Produce Exchange, 34 App. Div. 175, 178; Theobald v, Smith, 103 id. 200; Gilliam v. Guaranty Trust Co., 186 N. Y. 127.

20 See Just. Inst. 1, 11, 5-8, where it is stated that a man may adopt a person as his son, but he cannot adopt him as grandson without consent of the son. Other illustrations are to be found in the Roman law. It would be contrary to the law of

status and to legal custom for the law to constitute one an heir by adoption without the consent of a decedent. Cf. N. Y. Life Ins. Co. v. Viele, 22 App. Div. 80; s. c. affd., 161 N. Y. 11; Smith v. Allen, 32 App. Div. 374, affd., 161 N. Y. 478; see also text under § 98, Decedent Estate Law, and Von Beck v. Thomson, 44 App. Div. 373, 167 N. Y. 601; Matter of Hopkins, 43 Misc. 464; Middleworth v. Ordway, 49 id. 74, 80; Matter of Cook, 50 id. 487, 114 App. Div. 718, 187 N. Y. 253; Gilliam v. Guaranty Trust Co., 111 App. Div. 656, 186 N. Y. 127; Matter of Leask, 197 N. Y. 193.

21 Matter of Cook, 187 N. Y. 253, 260, 261; Matter of Gilliam v. Guaranty Trust Co., 186 id. 127. Cf. Matter of Leask, 128 App. Div. 205, 197 N. Y. 193; Matter of Hopkins, 102 App. Div. 458.

as well as from adoptive parents, and this was so in the later Roman law.22 The reason for the Roman rule was that, by emancipation from the adoptive family, the adopted might lose the right to inherit from both families, had not the right of succession from the natural family been expressly preserved.23 The New York statute does not seem to admit of subsequent exclusion from the adoptive family, except by common consent;24 and yet it gives the right to inherit from both the natural family and the adoptive family.

Adoptive Father. In imitation of the Roman law,25 the father, by adoption, takes in intestate succession from the adopted child, and the mother also takes under the Domestic Relations Law.26

Adopted Child Excluded, when. By provision of the Domestic Relations Law, an adopted child is not an heir or next of kin of the adoptive parents, so as to defeat a limitation over in case such parents die without issue or heirs.27

Adoption by Contract. It seems that a contract to make another an heir is enforcible, if the person so obligated die intes

22 Just. Inst. 3, 1, 14.

23 G. 3, 1, 10-13; Just. Inst. 2, 13, 4; G. 1, 137. Emancipation was a divestitive fact, but the filius-familias could not be emancipated against his will. D. 1, 7, 31; C. 8, 49, 4; Nov. 89, 11.

24 Cf. 116, Domestic Relations Law; amended chap. 154, Laws of 1910; Matter of Trimm, 30 Misc. 493; Matter of Ward, 59 id. 328. Cf. Burnes v. Burnes, 137 Fed. Rep. 781, as to status of adopted children.

25 Just. Inst. 2, 12, pr.; § 84, Decedent Estate Law.

26 Supra, p. 360; § 85, Decedent Estate Law.

27 The Domestic Relations Law, § 114, supra, p. 360. This part of the section is very inartificially framed, but its meaning seems as stated in text. Cf. N. Y. Life Ins. Co. v. Viele, 22 App. Div. 80; Kemp v. N. Y. Produce Exchange, 34 id. 175, 178; Van Beck v. Thompson, 44 id. 373; Kettel v. Baxter, 50 Misc. 48; Matter of Hopkins, 43 id. 464; affd., 102 App. Div. 458; Gilliam v. Guaranty Trust Co., 11 App. Div. 656, affd., 186 N. Y. 127; Matter of Leask, 197 N. Y. 193.

tate;28 but the evidence must be clear and positive,29 and if that person is married the other spouse should consent to the adoption.30

Presumptions in Favor of Heirs. Heirs of the blood of decedents are entitled at common law to every interest in freehold estates, undevised or undisposed of by accident or otherwise,31 and this rule still obtains, and, therefore, they are never disinherited by implication or without an express devise.32 Yet the commonlaw rule, that lapsed devises do not fall into the residuary, but go to the heir, was done away with by the Revised Statutes.33

Aliens. At common law no descent was cast on an alien nor had he inheritable blood.34 But this rule has been much modified by modern statutes, and certain aliens may now take even by descent, where actual consanguinity exists.35

28 Godine v. Kidd, 29 Abb. N. C. 36; Gates v. Gates, 34 App. Div. 608; Brantingham v. Huff, 43 id. 414; Healy v. Healy, 55 id. 315, affd., 167 N. Y. 572, 166 id. 624; Winne v. Winne, 166 id. 263; Middleworth v. Ordway, 191 id. 404; Doppman v. Muller, 137 App. Div. 82.

29 Merchant v. White, 37 Misc. 376, affd., 77 App. Div. 539; Mahaney v. Carr, 175 N. Y. 454; Holt v. Tuite, 188 N. Y. 17.

49

30 Middleworth V. Ordway, Misc. 74, 81, 117 App. Div. 913, 191 N. Y. 404.

311 Roper & White, Legacies, 516. 32 Fowler's Real Prop. Law (3d

ed.), 241; Oakes v. Massey, 94 App. Div. 165; Matter of Butler, 66 Misc. 406; Read v. Williams, 125 N. Y. 560, 571; Pomroy v. Hicks, 180 id. 73; Adams v. Massey, 184 id. 62, 69.

33 Fowler' Real Prop. Law (3d ed.), 467, note 40; Cruikshank v. Home for the Friendless, 113 N. Y. 337; Matter of Allen, 151 id. 243.

34 Mooers v. White, 6 Johns. Ch. 360, 365, and see Fowler's Real Prop. Law, (3d ed.), 125.

35 10, Real Prop. Law; Haley v. Sheridan, 190 N. Y. 331, and see Fowler's Real Prop. Law (3d ed.), 125, 127, 131, 134, 139.

§ 82. Lineal descendants of equal degree.

If the intestate

leave descendants in the direct line of lineal descent, all of equal degree of consanguinity to him, the inheritance shall descend to them in equal parts however remote from him the common degree of consanguinity may be.

Formerly 282, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896:

§ 282. Lineal descendents of equal degree.—If the intestate leave descendents in the direct line of lineal descent, all of equal degree of consanguinity to him, the inheritance shall descend to them in equal parts however remote from him the common degree of consanguinity may be.

§ 282 was formerly 1 Revised Statutes, 751, § 2:

2. If the intestate shall leave several descendents in the direct line of lineal descent, and all of equal degree of consanguinity, to such intestate, the inheritance shall descend to such persons in equal parts, however remote from the intestate the common degree of consanguinity may be.37

Rule I of Descents. This section of the Decedent Estate Law makes no change in the corresponding section of the Revised Statutes, just set out above. The Revised Statutes in this particular had not enlarged's the scope of the act of 1786, referred to under the preceding section of this act. The rule expressed in this section is now called the "First Rule of Descents "40 from its original position in the act of 1786. It is referred to above, in the text, as the rule changing within certain degrees impartible to partible inheritances and abolishing primogeniture.12 Yet, at common law, not all inheritances were impartible, for in case there were no male descendants, the female descendants of equal degree took as coparceners, and consequently the act of 1786, in order to amplify the intent of the act by familiar illustration, provided that all lineal descendants of equal degree should take in the same manner

43

36 Repealed by § 130, Decedent Estate Law.

37 Repealed by chap. 547, Laws of 1896, The Real Prop. Law, art. 10.

38 1 R. S. 753, § 17, now § 94, Decedent Estate Law.

39 Supra, p. 351.

40 Original edition of 1 Revised Statutes, p. 751, footnote 1.

41 Supra, p. 355.

42 Supra, p. 350.

43 2 Black. Comm. 187.