In Re the Estate of Walter

*203 Crane, Ch. J. On October 6, 1920, the appellant, Maude Ayers Ganoung; then three years old, was duly adopted by one James H. Ganoung, who had no children of his own blood. This adopted daughter lived with her foster parent until his death in 1933. Alice Ganoung Walter, a sister of James H. Ganoung, knew all about the adoption, and expressed her approval of it; she was very friendly with her niece by adoption, made gifts to her; they visited back and forth; in fact they were neighbors. When Mrs. Walter married she was past fifty and had no children of her own. On December 2, 1932, Mrs. Walter made her will giving all her property to her brother. As it is quite short we give it in full: “ Last Will and Testament. “ I, Alice Ganoung Walter, of the Town of Ulysses in the County of Tompkins and State of New York being of sound mind and memory, do make, publish and declare this my last Will and Testament, in manner following that is to say: “ First, I give, devise and bequeath all my property both real estate and personal property including my farm of about 39§ acres in the Town of Ulysses, Tompkins County, N. Y. to my brother, James H. Ganoung, of Rochester, N. Y., absolutely. All that I have I will to my said brother. “ Lastly, I appoint my brother, James H. Ganoung, executor of this, my last Will and Testament: hereby revoking all former wills by me made. “ In witness whereof, I have hereunto subscribed my name the 2nd day of December in the year Nineteen hundred and thirty-two. “ (Signed) ALICE GANOUNG WALTER.” Notice that there is no remainder, reversion or gift over on the death of James. On January 12, 1933, the brother, James H. Ganoung, died leaving the appellant, his adopted child, surviving *204 and no other children or descendants. On May 1, 1933, the testatrix, Alice Ganoung Walter, died without having made any change in her will. The Surrogate of Tompkins county held that the legacy to the testatrix’s brother did not lapse at his death but passed to the adopted daughter, Maude Ayers Ganoung. The Appellate Division thought otherwise and reversed the decree. We are of the opinion that the Surrogate’s decision is in accordance with the statutes and the authorities. The status of an adopted child is no longer in doubt (Domestic Relations Law [Cons. Laws, ch. 14], art. 7). Section 114 of that law provides: “ The foster parent or parents and the person adopted sustain toward each other the legal relation of parent and child, and have all the rights arid are subject to all the duties of that relation, including the right of inheritance from each other, * * * 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 person adopted is not deemed the child of the foster parent so as to defeat the rights of remaindermen.” As we mentioned above, there is no provision in the will of the testatrix respecting the passing or limitation over of the bequest to James H. Ganoung. This court said in Matter of Cook (187 N. Y. 253, 261): “ In the eye of the law, therefore, adopted children are lineal descendants of their foster parent. They are in the line of descent from him through the command of the statute, the same as if that line had been established by nature.” And in Bourne v. Dorney (184 App. Div. 476; affd., 227 N. Y. 641) it was held that the Statutes of Descent and Distribution strictly available to those, of the blood inure to the benefit of an adopted child under the present statute of adoption. The adopted child, however, is not left in this case dependent upon the adoption statute and these expres *205 sions of the courts, sufficient though they might prove to be. Section 29 of the Decedent Estate Law (Cons. Laws, ch. 13) covers the facts here presented. “ Whenever,” reads that section, “ any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, or to a brother or sister of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property so devised or bequeathed shall vest in the sm’viving child or other descendant of the legatee or devisee, as if such legatee or devisee had survived the testator and had died intestate.” These words as they are given and read apply precisely and exactly to the appellant's situation. It is conceded that if James H. Ganoung had survived his sister one day his legacy would have passed to his adopted daughter. The above statute says that if a brother, to whom personal property is bequeathed, die during the lifetime of the testatrix, leaving a child or other descendant, the legacy shall not lapse but vest in the child or descendant. What kind of child or descendant? The statute states ■— as if such brother had survived the testatrix and had died intestate. Had he survived, the adopted daughter would have taken. The Domestic Relations Law so enacts and all parties so admit. What then is the escape from this statute? The plea is, that because section 29 of the Decedent Estate Law (formerly R. S. part 2, ch. 6, tit. 1, art. 3, § 52) was the law before the present adoption statute was enacted (Laws of 1887, ch. 703), the words “ child ” and “ descendant ” must be limited to blood relationship as they were when the Revised Statutes became the law. The answer to this suggestion is that the Legislature passed both the Decedent Estate Law and the Domestic Relations Law and had full power over the disposition of property by will or descent. By the latter law it made an adopted child the same as a *206 natural child for the purposes of inheritance from its foster parent. Such a “ child ” thus created by the Legislature fitted in exactly to the existing Decedent Estate Law, section 29, which said that a legacy to a brother would not lapse by his death but pass to his child “as if such legatee [brother] * * * had survived.” The “ child ” created by the Legislature would take on survivorship under the adoption statutes (Dom. Rel. Law). The Legislature could not make it plainer and there was no need for amending section 29. The Legislature could and did give a broader meaning to the word “ child ” so as to include “ adopted child ” under the circumstances stated in section 29. And as if to remove all doubt if there could be any the Legislature made one specific reservation by providing that the person adopted is not deemed the “ child ” of the foster parent so as to cut off any hmitation over “ dependent ■under the provisions of any instrument on the foster parent dying without heirs.” This was to safeguard the intention of a testator who by his will in using the word “ heirs ” may have meant blood relations and also to prevent fraud through an adoption for the very purpose of cutting out a remainder. (See Matter of Horn, 256 N. Y. 294.) In United States Trust Co. v. Hoyt (150 App. Div. 621) it was held that where a deed of trust left property to the foster parents for fife and on their death without issue to the next of kin of the foster father, an adopted child was entitled to the entire remainder to the exclusion of the collateral relatives. Much reliance has been placed upon Matter of Leask (197 N. Y. 193, 195), where the instrument provided for a limitation over of income payable to a nephew in these words, “ Dining his Hie, and, upon his death leaving a child or children surviving him to pay over the principal of said sum to such child or children.” This case called for an interpretation of the will and was decided upon the apparent intention of the testator, not on the construction *207 of the above statutes. As was said of this decision in the Hoyt Case (supra), “ an adopted child did not come within the intent or meaning of the testator ” (p. 633). The same idea was expressed by Justice Cullen (later of this court) in Dodin v. Dodin (16 App. Div. 42, at p. 48): “ While the law made the defendant Josephine a legal child of the deceased, the test is not what her status was at law, but how she is treated in the nomenclature or vocabulary of the testator.” We are not puzzled to ascertain the intent of this testatrix as she made no limitation over and consequently did not use the words “ child,” “ heirs ” or “ descendants.” The extraordinary result which would follow the narrow construction given to section 29 of the Decedent Estate Law would be strikingly noticed had James H. Ganoung left a natural child as well as his child by adoption. The natural child would take all of the bequest under Mrs. Walter’s will and the adopted daughter nothing. This is not in harmony with the beneficent consideration which the Legislature has given to children by adoption. The case of Matter of Martin (133 Misc. Rep. 80; affd., 224 App. Div. 873, without opinion), in so far as it is inconsistent with the views here expressed, does not reach our approval. Intestacy is avoided, a will upheld by the decision we make, which is the end desired wherever possible. (Meeks v. Meeks, 161 N. Y. 66.) The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division payable out of the estate.