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Appellate Division.

Argued before VAN BRUNT, P. J., and McCLAUGHLIN, PATTERSON, O'BRIEN, and INGRAHAM, JJ.

William G. Davies, for plaintiff.

Louis C. Raegener, for defendants.

INGRAHAM, J. The facts out of which this controversy arose are as follows: Baron Christian Thomsen, a resident of the city of New York, was insured in three insurance companies, by four policies of life insurance, aggregating $22,500. These policies were dated in the years 1858, 1865, and 1866. By the policies of the Manhattan Life Insurance Company, the insurance was for the sole use of Mrs. Florentine Thomsen, wife of the insured, and the amount was to be paid "to the said insured, her executors, administrators, and assigns, for her sole use;

ADOPTION OF CHILDREN,-continued.

[Nov.

c. Rights of parties.

The right of inheritance given to adopted children by the amendment of 1887 belongs to children adopted prior to the amendment.

Dodin v. Dodin, 17 Misc. 35; 40 N. Y. Supp. 748; Aff'd 16 App. Div. 42; 78 St. Rep. 800; 44 Supp. 800.

Simmons v. Burrell, 8 Misc. 388; 59 St. Rep. 554; 28 Supp. 625.

Such right of inheritance applies to both realty and personalty of the adopted parent.

Simmons v. Burrell, 8 Misc. 388; 59 St. Rep. 554; 28 Supp. 625.

But such adoption must have been in pursuance of some statute, and not an informal relation.

Carroll v. Collins, 6 App. Div. 106; 74 St. Rep. 667; 40 Supp. 54.

Matter of Thorne, 155 N. Y. 140; 49 N. E. 661.

Smith v. Allen, 161 N. Y. 478, 55 N. E. 1056.

However, a child actually adopted prior to the act of 1873, in pursuance of a parol agreement by the foster parents to give her their property upon death, is entitled to specific performance of the agreement.

Godine v. Kidd, 64 Hun, 585; 46 St. Rep. 813; 19 Supp. 335; 29 Abb. N. C. 36.

Following this case in 29 Abb. N. C. 49, is a note on the "Law of Succes

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and, in case of the death of the said Florentine Thomsen before the decease of the said Christian Thomsen, the amount of the said insurance shall be payable to her children, for their use." The third policy, issued by the New England Mutual Life Insurance Company, was for the benefit of Florentine Thomsen, the wife of the insured, if she should survive him; otherwise, for the benefit of his then surviving children, and the surviving descendants of any then deceased child or children. A policy of the Germania Insurance Company was for the sole benefit of Florentine Thomsen, to be payable to her, "and, in case of the death of the said Florentine Thomsen before the decease of the said Christian Thomsen, the amount of the said insurance shall be payable after her death to her children for their use." At the time that these policies were executed the insured was married to Florentine Thomsen, and there were two children

ADOPTION OF CHILDREN,-continued.

sion as affected by the adoption of children," in which some decisions of other states are given but no New York case, except Hill v. Nye, 17 Hun, 457.

The natural mother of the adopted child is not prohibited by § 829 of the Code of Civ. Pro. from testifying to such an agreement at the time of adoption.

Id.

Such an agreement imposes a trust upon the property of the adopted parent binding upon his heirs, devisees and even purchases with notice, which is enforceable in a court of equity.

Heath v. Heath, 18 Misc. 521; 76 St. Rep. 1087; 42 Supp. 1087.

Godine v. Kidd, was followed in Gates v. Gates, 34 App. Div. 608; 54 Supp. 454; SS St. Rep. 454; on the right of the adopted child to specific performance of such a contract.

The denial of the plaintiff's right as an adopted child on the probate of the will of the adoptor (see Matter of Thorne, 155 N. Y. 140; 49 N. E. 661) is no bar to an action for specific performance of the parol agreement made when the indenture of adoption was executed.

Brantingham v. Huff, 43 App. Div. 414; 94 St. Rep. 157; 60 Supp. 157. An adopted child will not take under a bequest to "lawful issue." N. Y. Life Ins. & Trust Co. v. Viele, N. Y. 55 N. E. 311. In this case the testator's domicile was in New York and the will was made in Saxony.

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[Nov.

Appellate Division.

of such marriage living, who are the defendants in this action, -one child, Hugo A. Thomsen, born on October 17, 1850; another, Petita, born November 23, 1854. Florentine Thomsen, wife of the insured, died in the city of New York on November 29, 1895, leaving these two children surviving, and the insured died in the city of New York on May 28, 1898. There was no issue of any deceased child.

In December, 1875, the insured and his wife, by proceedings taken in the court of common pleas for the city of New York, adopted the plaintiff, and an order of adoption was on December 23, 1875, signed by Charles P. Daly, chief judge of said court; and the question submitted is whether or not this plaintiff, as an adopted child of the said Baron Christian Thomsen. and his wife, Florentine Thomsen, was entitled to any portion of the moneys paid under these insurance policies before mentioned.

This adoption was under chapter 830 of the Laws of 1873. That act, as amended by chapter 703, Laws 1887, after prescribing the proceedings for an adoption, by section 10 provides that:

"A child, when adopted, shall take the name of the person adopting, and the two thenceforth shall sustain toward each other the legal relation of

ADOPTION OF CHILDREN,-continued.

The bequest was to the "lawful issue" of the testator's daughter who had adopted a child according to the laws of Saxony. It was held that the will must be construed as a domestic will and the meaning of "lawful issue" could not be enlarged by any of the special provisions of the laws of Saxony regulating adoption.

The "gift" of a child by its mother to one who rears it as his own prior to the statute of 1873 does not exclude the parents of such child from participation as next of kin in the distribution of the estate of a descendant of such child.

Hill v. Nye, 17 Hun, 457.

In the last case it appeared that the father of the child was in State Prison at the time of the "gift" which was by parol and he never consented thereto. It further appeared that the child visited his natural parents after he was grown to manhood and recognized the natural tie of consanguinity. The query was raised whether the phrase "excepting the right of inheritance" in the statute of 1873, included the right to distribution.

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parent and child, and have all the rights and be subject to all the duties of of that relation including the right of inheritance, except that as respects the passing and limitation over of real and personal property, under and by deeds, conveyances, wills, devises and trusts, dependent upon the person adopting dying without heirs, said child adopted shal Inot be deemed to sustain the legal relation of child to the person so adopting so as to defeat the rights of remainder-men.”

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We have thus, at the time of the death of the wife of the insured, when the interests of the children of the marriage accrued, the provision that the child when adopted should sustain towards the adopting parents the legal relation of parent and child, and have all the rights of that relation, including the right of inherit

ance.

The defendants take several objections to the proceedings which resulted in the order for the adoption of the plaintiff, but we think that none of them affect the validity of the adoption. First, it is stated that the consents required by the statute do not appear to have been given. The petition of the insured and his wife, upon which the proceeding was instituted, stated that the child was then about 411⁄2 years old, and had been in the family and under the care of the petitioners since the month of March, 1874, something over 18 months; that the parents of the child were not known, but that a society called the "Foundling Asylum of the Sisters of Charity in the City of New York" had received and maintained said infant child until the month of March, 1874, when said child was delivered and assigned by the said society to the petitioners to adopt, maintain, and educate the same; and that the petitioners were desirous of adopting the child, under the act of the legislature before referred to. Upon this petition an order was granted requiring the parties interested and the said society, the Foundling Asylum of the Sisters of Charity in the City of New York, to appear before the chief judge of the court of common pleas on a day named, and upon that day the parties did appear before the said chief judge, and executed an instrument whereby Christian Thomsen and Florentine, his wife, agreed to adopt the said minor female child abandoned by its parents, and about the month of July, 1871,

[Nov.

Appellate Division.

received and cared for by the society called "Foundling Asylum of the Sisters of Charity in the City of New York," and which child was delivered to the said petitioners by the said society, to be adopted and maintained and educated by the said petitioners, about the month of March, 1874. They further agreed, jointly and severally, that the said child should be adopted and treated by the petitioners, and each of them, in all respects, as their own child should be treated, and should be brought up in the Roman Catholic religion. There was also executed on said day a consent to adopt the said child, to bring up the said child in the Roman Catholic religion, and to treat the same in all respects "as our own lawful child should be treated." Upon these papers an order was signed by the chief judge of the court of common pleas which recited the petition of the said Christian Thomsen and Florentine, his wife, praying to have the adoption by them of a certain minor female child abandoned by its parents legalized by an act of the legislature referred to; and that it having appeared to the satisfaction of the said chief judge that the said child was a minor child of the age of about 5 years, and was abandoned by its parents, and that the parents were not known; and that said infant child was received and taken under the care. charge, and custody of the society called the "Foundling Asylum of the Sisters of Charity in the City of New York ;" and the said society, acting by its proper officer, having given their consent to the adoption of the said child by the said Christian Thomsen. and Florentine Thomsen, his wife; and that the said persons adopting the said child now called "Sylvia," and the child adopted, and the said society the Foundling Asylum of the Sisters of Charity in the City of New York, by their proper officer, having appeared before him; and the necessary consent having been signed, and an agreement having been duly executed by the said Christian and Florentine Thomsen, the persons adopting said child, to the effect that the child shall be adopted and treated, in all respects, as their own lawful child should be treated; and all the said persons appearing before the said chief judge having been examined by him personally, he did thereby order, decree, and direct that "the said minor female child called 'Sylvia,'

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