APPEAL by the defendants, Isabel Hoyt and another, from so much of a judgment of the Supreme Court in favor of the defendant Dorothy Hoyt, entered in the office of the clerk of the county of New York on the 1st day of March, 1912, upon the decision of the court rendered after a trial at the New York Special Term, as directs the plaintiff to pay to the guardian ad litem of the defendant Dorothy Hoyt an extra allowance of $3,000, and that the balance of certain trust funds remaining in the hands of the plaintiff after making certain specific payments be delivered to the general guardian of the defendant Dorothy Hoyt.
William W. Scrugham, for the appellants.
Samuel T. Carter, Jr. [ Henry W. Jessup of counsel], for the respondent.
On June 1, 1896, Rhoda E. Hoyt executed and delivered to the United States Trust Company a deed of trust, by virtue of which property aggregating in value $86,798.75 was transferred upon the following trusts: 'To have and to hold said property to the party of the second part [The United States Trust Company], its successors and assigns, in trust, however, for the following uses and purposes, namely, to hold, manage, invest and reinvest the same; to collect and receive the interest, income and profits thereof, and after deducting all proper charges and expenses, to pay over the said interest, income and profits to my son Frank R. Hoyt for and during his natural life, and upon the death of my said son Frank R., to pay over the said interest, dividends, income and profits to Margaretta A.,
the wife of my said son Frank R., if she should then be living, during the term of her natural life, or so long as she shall remain his wife, and, upon the death or remarriage of the said Margaretta A., or upon the death of my said son Frank R., if the said Margaretta A. should not be living at the time of the death of my said son Frank R. to divide the principal of said trust fund or the securities in which it may then be invested into as many equal shares as there shall be children of my said son Frank R. then living, and to pay over to each of such children of my son Frank R. one equal share or portion of said principal. In the event that any of the children of my son Frank R. shall have died before the time of the distribution of the principal as above provided for, leaving child or children him or her surviving, such child or children shall take the share or portion of its or their deceased parent, and in equal shares if more than one. In case there shall be no issue of my son Frank R. living at the time of the disposition of the principal as above provided for, then the said principal shall be paid over to and among the persons who are then next of kin of my said son Frank R. in the manner and proportion directed by the laws of the State of New York for the distribution of the estates of persons dying intestate.' At the same time Rhoda E. Hoyt executed and delivered similar deeds of trust whereby she created funds approximately the same amount upon similar trusts for the benefit of her other children, Jesse Hoyt, Isabel Hoyt Bangs and Reuben M. Hoyt.
On November 16, 1901, Rhoda E. Hoyt made her last will and testament whereby she devised certain real estate in the town of Watkins to her son Frank and to his wife Margaretta, for their use or that of the survivor for life, with remainder to their adopted child 'Dorothea.'
On December 6, 1901, Rhoda E. Hoyt died, and her said last will and testament was duly admitted to probate by the Surrogate's Court of New York county.
Margaretta A. Hoyt died before her husband, Frank R. Hoyt, the latter dying intestate February 24, 1911. They had no issue. He left him surviving his adopted daughter Dorothy, his brother Reuben, his sister Isabel, and the three children of
his deceased brother Jesse. Dorothy Hoyt had been adopted by Frank R. Hoyt and Margaretta A., his wife, from the Nursery and Child's Hospital on or about December 4, 1894, pursuant to the provisions of chapter 438 of the Laws of 1884. She was then about one year old.
The question presented by this appeal is whether Frank R. Hoyt's adopted daughter Dorothy is the sole next of kin of her foster father, and as such entitled to all the property as to which he died intestate, or whether his brother, sister, nephew and nieces are his next of kin under the Statute of Distributions of this State. The answer to this question determines the right to the principal of the trust fund in controversy, with any accumulations of interest or income therefrom.
The status and rights of adopted children are of purely statutory creation. The adoption of children and strangers to the blood was known to the Athenians and Spartans, the Romans and ancient Germans and is recognized in both the French and Spanish law, but it was unknown to the common law of England and exists in the States of the Union solely by force of statutes. ( Carroll v. Collins, 6 A.D. 106; Matter of Thorne, 155 N.Y. 140.) One of the earliest statutory references to adoption occurs in chapter 244 of the Laws of 1849, entitled 'An Act to incorporate the American Female Guardian Society,' wherein section 6 conferred upon the society, in case the child had been surrendered to them by its natural or legal guardians by an instrument in writing, authority 'to place such child by adoption or at service in some suitable employment and with some proper person or persons, conformably to the laws of this State in regard to the binding out of indigent children.' The first general statute referring to the subject-matter enacted in this State was chapter 830 of the Laws of 1873, entitled 'An Act to legalize the adoption of minor children by adult persons.' By its terms, adoption was defined as 'the legal act whereby an adult person takes a minor into the relation of child, and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor.' Its operation was limited to the cases prescribed in the act. The consent of the parents of the child, or if dead of an adult person having its lawful custody, was required, as well as that of
the child if over the age of twelve years. A judicial proceeding was required before the county judge of the county wherein the person adopting resided, in which he was to examine all the persons required to give their consent to the adoption and the person adopting as well. Section 9 provided for the entry of the judge's order, directing that the 'child shall thenceforth be regarded and treated, in all respects, as the child of the person adopting.' Section 10 then provides: '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 parent and child, and have all the rights and be subject to all the duties of that relation, excepting the right of inheritance, except that as respects the passing and limitations over of real and personal property, under and by deeds, conveyances, wills, devises and trusts, said child adopted shall not be deemed to sustain the legal relation of child to the person so adopting.' Section 13 directs that 'nothing herein contained shall prevent proof of the adoption of any child, heretofore made according to any method practiced in this State, from being received in evidence, nor such adoption from having the effect of an adoption hereunder; but no child shall hereafter be adopted except under the provisions of this act, nor shall any child that has been adopted be deprived of the rights of adoption, except upon a proceeding for that purpose.'
The first general provision for adoption of children from institutions is to be found in chapter 438 of the Laws of 1884, entitled 'An Act to revise and consolidate the statutes of the State relating to the custody and care of indigent and pauper children by orphan asylums and charitable institutions.' By section 7 thereof such corporations were authorized to place children for adoption with suitable person or persons by a written instrument to be joined in by the corporation and by the person adopting and his wife or her husband. Section 8 prescribes: 'Each person taking a child by adoption, in pursuance of this act, is hereinafter designated as the foster parent of such child, and such foster ...