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and theretofore called 'Lora,' shall henceforth be regarded and treated, in all respects, as the child of the said Christian Thomsen and Florentine, his wife, and shall take the name of Sylvia Thomsen, and the two shall henceforth sustain towards each other the relation of parents and child, and shall have all the rights, and be subject to all the duties, of that relation, subject, however, to the exceptions in said act set forth."

The objection taken by the defendants is that it did not appear that the consent of the parents of the child was obtained. By section 5 of the act it is provided:

"Except in the cases provided for in the next section, a legitimate child cannot be adopted without the consent of its parents, if living, or the survivor, if one is dead; nor an illegitimate child without the consent of its mother, if she is living."

By section 11 it is provided that:

"Whenever a parent has abandoned or shall abandon an infant child such parent shall be deemed to have forfeited all claim that he or she would otherwise have, as to the custody of said child or otherwise, against any person who has taken, adopted and assumed the maintenance of such child; and in such case the person so adopting, taking and assuming the maintenance of such child may adopt it under the provisions of this act, with the same effect as if the consent of such parents had been obtained. In all cases of abandonment after this act takes effect the person adopting shall proceed under the provisions of this act within six months after he or she has assumed the maintenance of such child; in such case of abandonment, the county judge may make the order provided for in this act without the consent of such parent or parents."

It appeared in the proceeding that the child had been abandoned before the passage of the act, she having been received by the asylum in the month of July, 1871, and having been adopted by the petitioners in the month of March, 1874. The act in question was passed on June 25, 1873, and thus, when the act was passed, the parents had abandoned the child; and, under section 11 of the act, the person so adopting, taking, and assuming the maintenance of such child may adopt it under the provisions of the act before referred to, with the same effect as if the consent of the parents had been obtained. It was only in

Appellate Division.

case of the abandonment of the child after the act takes effect, namely, after June 25, 1873, that, under the provisions of section 11, the person adopting the child must proceed within six months after he or she has assumed the maintenance of such child.

[Nov.

The objection also taken that the instruments were executed in the presence of a person other than a judge before whom the proceedings were had is not of substance, as, by the order entered, the judge himself certifies that the persons adopting the child appeared before him, that the child was also present, and these parties had executed the necessary consents, and an agreement had been executed by the persons adopting the child, as provided for by the statute. We do not think that any of the objections taken by the defendants to the jurisdiction of the judge or the validity of the proceedings for the adoption of the child are well taken.

The point is further taken by the defendants that the policy of insurance the proceeds of which constitute the subject-matter of this action created trusts which are, by the specific language, exempt by the operation of the statute of adoption, and the defendants seek to bring the right to share in these policies within the exception contained in section 10 of the statute. It seems to us, however, that the right to recover or to receive the moneys under these policies of insurance cannot be said to be the passing over of real and personal property under and by a deed, conveyance, will, devise, or trust dependent upon the person adopting dying without heirs. By the execution of these policies of insurance, there was created a contractual relation between the insurance companies and the persons for whose benefit the insurance was effected. The obligation of the insurance companies was that, upon the death of the insured, the insurance companies would pay to the persons named a sum of money. There was no trust created by the policy. The children of the insured had no interest in the policy, except upon the contingency that the insured's wife should die before the insured. The wife of the insured was primarily the person for

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whose benefit the policies were taken out, and, if she survived her husband, to her would the amount of the policies be payable. There were certainly no trusts created for her benefit, or for the benefit of her children, in case of her death. Her relation was one simply of a party to a contract in whose favor the contract had been made, and who would be entitled to receive payment of a sum of money upon the happening of the contingency contemplated, viz., the death of the husband. Upon the death of the wife, by the express terms of the policy, this right to receive a sum of money upon the death of the insured passed to her children; but it was her children that survived her, or the descendants of a deceased child at the time of her death. Her children, before her death, had no right in the money to be paid. Their right depended entirely upon the insured's surviving his wife and this contract contemplated the conditions existing at the time of the wife's death. It was the children at that time in existence to whom the money was payable. Upon the death of the wife, the children then in existence took a vested interest in the policy; but it was not as beneficiaries of a trust, but as the persons for whose benefit the contract had been made. There was no "trust," within the formal meaning of that term; no trustee; no trust fund; no cestui que trust. A simple contract existed by which these insurance companies had obligated themselves to pay upon a certain contingency a sum of money to the persons who would bear the relation of children to the insured, or to his wife, at the time of the death of the insured, providing that the wife did not survive the insured. There was therefore no passing or limitation over of real or personal property under or by a deed, conveyance, will, devise, or trust which was dependent upon the person adopting, i. e., the insured and his wife, dying without heirs. The meaning of this clause is quite apparent. It applies to a case where property has been conveyed or bequeathed or devised to a person, with the remainder to his children, or, if no children, with remainder over; and in that case the statute provided that the adoption could not affect the remainder over so that the adopted child would take as though

[Nov.

Appellate Division.

he was a child of the blood of the parties adopting. But that condition is not here presented. The question is not as to the person who would inherit or be entitled to receive a remainder or trust fund in default of the heirs of the insured or his wife, but whether this plaintiff bore to the insured or his wife the relation of a child, which would entitle her to receive the portion of a sum of money, which, by a contract made between the adopting parent and a third party, was to be paid to the parent's children upon his death.

It also seems to us that it was the intention of this contract that all the children of this marriage who were in existence at the time the policies became payable should share in these policies, whether born before or after the issuance of the policies. There is nothing in the policy that would justify the conclusion that a child born to the insured and his wife, after the taking out of the policy, would not have been entitled to share in the proceeds. The policies all speak of the children in existence at the time of the death of the wife, who would succeed at that time to the right of the wife to share in the proceeds of these policies; and, when we look at the relation which is created by this formal adoption,—that "the two [parent and child] thenceforth shall sustain toward each other the legal relation of parent and child, and have all the rights, and be subject to all the duties, of that relation," we see that it was the intention of the legislature to put an adopted child upon the same relation to its parents that a natural child would have. Upon such an adoption, the relation of 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. The adopted parents inherit from the adopted child as though such child had been a natural child. The parents would be the next of kin of the adopted child as though the adopted child had been a natural child. The adopted child would inherit from the parents as though such child had been a natural child. All of these rights that spring into existence at the time of adoption put the adopted child in exactly the same position as though the child was the

1899]

cur.

Randall v. Randall.

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 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. Now, what were the rights incident to that relation, under the policies of insurance? These insurance companies had agreed to pay to the persons who occupied the relation of children to the insured or his wife at the time the insured died a sum of money. This plaintiff occupied that relation to both the insured and his wife at the time of the wife's death, and thus, under the express provisions of the policies of insurance, she became entitled to receive her proportionate share of the moneys payable under the policies.

It would follow, therefore, that the plaintiff is entitled to judgment, and it is directed accordingly, with costs. All con

RANDALL v. RANDALL.

[29 Misc. 423; 94 St. Rep. 718; 60 Supp. 718.]

(Supreme Court, Special Term, New York County. November 15, 1899.)

1. SERVICE OF SUMMONS-DIVORCE-IDENTIFICATION.

The server of a summons identified defendant from a photograph, and the person served admitted his name to be the same as defendant's, and the

NOTE. IDENTIFICATION OF Defendant ON SERVICE OF SUMMONS IN MATRIMONIAL ACTIONS.

General Rule of Practice, 18.......

In actions for divorce, or to annul a marriage, or for separate maintenance, the affidavit (proof of service of summons) in addition to the above requirements (statement of place and manner of service, that affiant knew person served to be the person described as defendant, and that he left a copy of the summons with said defendant, etc.) shall state what knowledge affiant had of the person served being the defendant and proper person to be served, and how he acquired such knowledge.

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