Godine v. Kidd

The plaintiff, claiming to be the owner of a one-fourth interest in the premises in West Washington place, brings this action to eject the defendant,, who is in possession of the premises. The complaint alleges that one Elizabeth Knapp died in June, 1890, being at that time seized in fee of the property ; that her title-thereto was derived through one William Parscyl, who-died seized and possessed of the lot of land on May 11, 1849, leaving a last will whereby he devised the same to-Edwin Knapp and the said Elizabeth Knapp, his wife,, and the survivor of them. Edwin Knapp died July 4,. 1887, leaving Elizabeth Knapp, his wife, surviving, who thereupon became seized in fee in her own right of the: premises in question, and continued in possession thereof: until the time of her death. That she having died intestate,, the plaintiff, who was a niece of said Elizabeth Knapp and one of her heirs, became entitled to one undivided fourth part of such real estate. In answer to the claim thus made, the defendant alleged as a defense that in April,, 1844, her mother, with the consent and approval of her father, gave and surrendered her, then an infant of the age-of one and a half years, to the said Elizabeth and Edwin-* Knapp, for and in consideration that they then and there promised and agreed to adopt and bring her up as their daughter, give her their name, make her their heir, and' that the property they might have at their decease should!

Upon the close of the evidence, the court directed a verdict for the plaintiff (ordering the exceptions to be heard in the first instance at the General Term) upon the ground that the equitable defense set up was not sufficient to exclude the heirs at law. It was thus assumed by the learned trial judge, just as the evidence warranted, that an agreement, substantially as set forth in the defense, was ■established. It was made to appear that Mr. and Mrs. Knapp, who were childless, made application to the mother of the defendant, when the latter was but eighteen months old, for permission to take and bring the child up, agreeing to treat her as their own daughter, and in all respects to make provision for her as their own child, including a disposition of their property in her favor at their death. The agreement, so far as any obligation was imposed on a child towards parents, was fulfilled by the defendant, and so far as concerns that part of the agreement by which the Knapps wére to leave her their property, this was partially performed by the will made in favor of the defendant by Mr. Knapp, who at the time claimed and supposed himself to be, as did Mrs. Knapp, the owner, not only of the personal property which, by the terms of his will, went to the defendant, but also of the-real estate, in which, however, together with his wife, he only took an estate by the entirety, which left the property in such position that it did not pass, as he intended it should under the terms of his will, to the defendant, but passed to his wife by reason of her surviving him.

Were it not for this misapprehension on the part of the Knapps as to the person who had the right to devise

In effect, the defense seeks to obtain a specific performance of the agreement made by the Knapps with the parents of the defendant at the time of her adoption; and there being no real dispute upon the facts, the question is, whether a contract made in this State in 1844, between the parents of a child and its adoptors, in consideration on the one hand of an agreement to take the child and bring her up as their own and give her the property they might have on their death, and on the other the surrender of the child by its parents, and the child growing up and serving and caring for her new parents until their death, can be enforced.

The adverse view upon this question taken by the learned trial judge was, undoubtedly, due to the importance attached by him to the laws passed in this State with reference to the adoption of children. He correctly says that “ the law of this State, until the year 1873, never recognized such a thing as the adoption of children. In 1873 an act was passed by which, in a certain sense, the relation of parent and child was established between the child of a stranger and a married man and woman, with the mutual consent of both. In 1887 that was enlarged so that a child adopted had heritable qualities, and might take the property of the father or mother, to the exclusion of those who otherwise would have been the

While, therefore, the act of 1873 must be regarded as-the first formal enactment providing for statutory adoption, and thus beyond question legalizing the same, this-very act (chap. 830, Laws of 1873), by its thirteenth section recognizes the fact that adoptions had taken place-prior thereto, because it provides that “ nothing herein contained shall prevent proof of the adoption of any child,, heretofore made according to the methods practised in this State, from being received in evidence,” etc. While,, therefore, adoption was not known to the common law, and was never in any way regulated by statute in this-State until' 1873, its existence prior to the latter date was undoubtedly recognized. • We think, however, that the learned trial judge was unduly influenced by a consideration of the provisions relating to statutory adoption in determining the question presented for his consideration. It was not one as to whether there had been a formal adoption pursuant to some law or statute, which would have entitledthe defendant by virtue thereof as an adopted child to succeed to the property of -the adopting parents ; but, as already said, the question was, whether an agreement such as has been here established can be enforced in equity.

In the case of Gall v. Gall, handed down herewith, this question has been considered by this court, and the views expressed by Mr. Justice Talcott in Shakespeare v. Markham ( 10 Hun, 322 ) have been referred to with approval. It was in the latter case said : “ There is, upon the authorities, no doubt that in a case where a certain and definite contract is clearly established, even though it involves an agreement to leave property by will, and it has been performed on the part of the promisee, equity, in a case free from all objections on account of the adequacy of the consideration, or other circumstances rendering the claim inequitable, will compel a

In his able review of the authorities in the Gall case,; Mr. Justice Barrett says, it is true, that those in which performances has been enforced were principally cases where specific property was agreed to be devised or bequeathed upon an adequate consideration. He further states : “ We have found no case in this State where an agreement to leave the whole of one’s estate, real and personal, to a particular person, has been enforced. On the contrary, there are cases where specific performance of such a contract has been refused.” He says: “ It is vitally important that the Statute of Wills should be maintained in its integrity. ... So important are these provisions with respect to testamentary disposition, that it has been doubted whether in any case, especially when the contract is sought to be established by parol testimony, so patent a means for their evasion as bills for specific performance should have been allowed. It is certain, however, that in this class of cases the ordinary rules which govern in actions to compel the specific performance of contracts, and which furnish reasonable safeguards against fraud, should not be extended, but should be rigidly applied. These rules require that the contract be certain and definite in all its parts, that it be mutual and founded upon adequate consideration, and that it be established by the clearest and most convincing evidence. . . . That the remedy is a matter of judicial discretion, and that relief should be withheld where a decree for specific performance would work injustice to innocent third persons, or where it would be contrary to public policy.”

Upon the application of these principles in the Gall case it was held that the contract sought to be enforced “ was not established with reasonable certainty. It was

It will thus be seen that, while the courts are reluctant to enforce such contracts where there is the slightest suspicion of fraud, or the slightest doubt as to the existence and certainty of the contract, yet the law recognizes that specific performance will be decreed of a definite contract founded upon an adequate consideration which is established by the clearest proof. Where, therefore, the act of adoption is based upon a contract, it is not the law or statue regulating adoption that is to prevail, but the law relative to contracts ( Wharton, Conflict of Laws, § 251).

Applying the principles thus laid down for our guidance,-the conclusion to be reached in this case must necessarily depend upon the character and strength of the evidence adduced to support the contract alleged. In respect thereto we have no more difficulty than did the learned trial judge in arriving at the conclusion, pon the testimony, that Mrs, Kidd, while an infant, was adopted by Mr. and Mrs. Knapp and “ made substantially and virtually their child.” The agreement made between these people and the mother of Mrs. Kidd, showing a complete surrender of the child to them on condition that they should have the care and custody of the child free from any control or interference on the part of the parents, and upon their death should leave her their property, is clearly established. We have not only direct testimony as to the terms of the agreement, but all the surrounding circumstances unequivocally support its existence. So complete was the control vested in the Knapps that, from 1844 to the date of Mrs. Knapp’s death in June, 1890, the defendant never knew but that she was actually the child of Mr. and Mrs. Knapp, and it was only after her marriage that she learned she was the child of other parents.

The enforcement of the contract here will not result in injustice to any third persons, nor is it against public

Upon these facts, who would question the worth, adequacy and sufficiency of the consideration received by the adopting parents ? Lives that are drear and blank are thus oftentimes cheered and animated, and filled with new hopes and ambitions, fresh impulses and awakened energies. These are the contributions of youthful love and affection and companionship to childless old age. But, whether or not the results expected from adopting the defendant were in all respects realized, this in no way affects the adequacy of the consideration moving from the parents of the defendant and supporting the promise made by the Knapps. On the part of the parents, and on the part of the defendant, it was fully and completely performed, and all of the youth, early womanhood and a considerable portion of her married life, the years intervening between 1844 and 1890, were devoted by the defendant in performing those filial duties of affection and care which, according to all the evidence in the case, is shown to have been that of a loving daughter towards aged, and in their latter years, sickly parents. A contract which has been thus established, entirely free from doubt or suspicion, founded upon an adequate consideration, which has been fully performed on one side, and the intention to perform which on the other was only rendered abortive by a mis

As already stated, there is abundant law to sustain the view that “ where a certain and definite contract is clearly •established, even though it involves an agreement to leave ■property by will, and it has been performed on the part of the promisee, equity in a case free from all objections on account of the adequacy of the consideration, or other circumstances rendering the claim inequitable, will compel •specific performance.”

Though recognizing this well settled law, the respondent insists, in addition to the other objections to defend.ant’s right to retain the property, which have already been discussed, that there are two insuperable objections to her obtaining any relief. The first, is, that as the property in question is real estate, and the agreement set up in the answer is a parol agreement, supported entirely by parol testimony, it cannot be enforced because void by the Statute of Frauds, not being in writing. The answer to this, however, is that a verbal agreement that has been performed by one of the parties, though made with reference to real estate, is taken out of the Statute of Frauds and is valid in law.

The second objection goes to the admissibility of the evidence of defendant’s mother (which was the direct testimony offered as to the terms of the contract), upon the ground that such evidence was incompetent under section 829 of the Code of Civil Procedure. This section provides that, upon the trial of an action, a person from, through, or under whom a party derives his interest or title, by assignment or otherwise, shall not be examined as a witness in behalf of the party succeeding to his title or interest, against a person deriving his title or interest from, through, or under a deceased person, concerning a personal transaction or communication between the witness and the deceased person. We fail, however; to rec

Van Brunt, P. J., and Barrett, J., concurred.

Note on the Law of Succession as Affected by the-Adoption of Children.

The statute of adoption is one of the curiosities of our legislation. Its provisions as to inheritance and succession were apparently aimed at curing one supposed defect in the common law. The change was made without any apparent regard to the number of embarrassing uncertainties, which would be introduced by drafting a statute with that purpose alone in view, in disregard of other necessarily connected rules of law.

The change was initiated by the act of 1873. It was extended in very ambiguous language by the act of 1887.

The purpose of the act of 1873 seems to have been to transfer the parental authority, with the right to services and the duty of support, and the reciprocal filial duties, and to enable the adopted child to take by the "designation of child in subsequently executed instruments, but not by-intestacy.

It declared, by section 9, that “ the child shall thenceforth be regarded and treated, in all respects, as the child of the person adopting.” L. 1873, c. 830, § 9.

And section 13 added the following saving clause, “ Nothing in this act contained in regard to such adopted child inheriting from the person adopting shall apply to any devise or trust now made or already created, nor shall this act in any manner change, alter or interfere with such will, devise, or said trust or trusts, and as to any such will, devise or trust said adopted child not be deemed an heir so as to alter estates, or trusts, or devises in wills already made or trusts already created.” L. 1873, c. 830, § 13.

[It is more easy to understand the frame of this clause if we conjecture that the clause in § 10 of the original bill read “including the right of inheritance,” instead of “ excepting the right of inheritance,” and was changed in legislating.]

The object within the vision of the draftsman of the act of 1887 seems to have been to add that so far as concerns direct succession to real property under the statute of descents (1 R. S. 751 ; 4 Id. 8 ed. 2463, § 1, etc.), and to personalty under the statute of Distributions (2 Id. 94, etc.; 4 Id. 8 ed. 2565, § 75), the adopting parent and the adopted! child should be entitled to take from each other as if the;

The claim of natural born children to inherit from a brother or sister by adoption seems to have been foreseen, but not the claim of the adopted child to inherit from the natural born as if from a brother or sister.

The question whether the adopted child loses its right of inheritance from its natural parents and other relatives does not seem to have been considered, nor whether the new course of inheritance prescribed will serve for indirect transmission through the adoption to descendants or collaterals, as well as for" the direct transmission declared .by the statute.

The language of the act of 1887 on the question of the -new relations of the adopting parents and the child, -declares that they “ 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 .(including) the right of inheritance ”. . . . [The parentheses, which appear in the statute book are, of course, the unnecessary reproduction in the engrossed act, of the sign used in -.the bill to indicate that the word “ including,” had been by ■way of amendment substituted for the word “ excepting ” ■which appeared in the act of 1873.] If the statute stopped there we might at first sight be doubtful whether “ inheritance ” was used in the general sense of succession at death, .or in the stricter sense of succession by intestacy. The act .of 18.73 said “ excepting the right of inheritance,” and ithere it has been thought by some that the word was intended to preclude claims to succession qua child either in intestacy or testacy. But the act of. 1887 goes on. . . “ and the heirs an.d next of kin of the child so adopted shall be the same as if the said child was the legitimate child of the person so adopting.” This primarily seems to refer exclusively to intestacy.

The first question then appears to be is the adopted child a ■“ child ” or a “son ” or a “ daughter ” or one of “ the children,” of the adopter under a gift or grant of property to •“ children,” etc. • Of course this question might be affected by the particular intent disclosed by the will or deed, and perhaps by the testator’s or grantor’s habitual use of language. In the absence of any such peculiar evidence, the question anight be determined by extending the language of the

Does the statute then affect rights under a will or deed ? The express exception of “the passing and limitation over” of property “dependent on the person adopting dying without heirs,” might be thought to imply that for all other purposes of devolution, the adopted is in legal effect to be deemed an actual child, for if the statute related only to inheritance by intestacy no such exception would be needed.

The saving clause in section 13 above quoted excludes “any devise or trust now made or already created."

In determining questions of title arising under the act it is to be observed that the statute does not apply to adoptions made before it took effect. Hill v. Nye, 17 Hun, 457 .

The act of 1873, passed June 25, 1873, and took effect, therefore, July 15, 1873. The act of 1887, passed June 25, and took effect immediately. Hence a will of a testator who died before July 15, 1873, or June 25, 1887, respectively, is not affected. It would seem, though not perhaps so clearly, .that a will executed before the statute would not be affected, even though the testator did not die till after the statute, ■so that the estate could not be said to be created before the statute. For one effect of the statute if it applies to a will in favor of a “ child ” is to alter the legal meaning of language. And language already used by a testator, should not have a change of meaning put upon it by law even though he be living, if the result would be to defeat an intention properly expressed according to the legal meaning of words at the date of execution.

It is to be observed also, in considering the efficacy of an adoption, to affect rights of inheritance, in a case where the adopting party is only one person, (lot husband and wife— that the statute declares (§ 3) that neither husband nor wife can adopt without the consent of the other, unless lawfully separated from the other. These and other conditions are emphasized by the clause in section 13, that “ no child shall hereafter be adopted except under the provisions of this act.”

The actual problems to which this statute gives rise, some of which are appearing in practice with increasing frequency, may be outlined as follows :

1. Death of the. adopting parent leaving a will in favor of “children.” Does the adopted child take by that description ? It seems so.

2. Death of the natural parent or of any of his stock, either

On this question it may be observed that section 12 of the act of 1873, expressly provides that “ the parents of an adopted child are, from the time of the adoption, relieved from all parental duties toward, and of all responsibility for, the child so adopted, and have no rights over it.” But there is no corresponding provision to cut off the rights of succession.

3. Death of adopted child intestate, unmarried and without issue, there being no natural born children or descendants of the adopting parent. Does the adopting parent take, even though the estate came from the natural parent. The natural parent seems to be expressly excluded by giving “ all the rights ” of parent to the adopting parent, including inheritance.

4. Death of a natural born child of the adopting parent, intestate, unmarried and without issue. Does the adopted child take as brother or sister? The natural born child is, by the statute, heir and next of kin to the adopted child. Is the adopted child heir and next of kin to the natural born child > Does the adopted child continue to take from his own natural born brothers and sisters when they no longer can take from him ?

5. Death of a parent of the adopting parent (i. e., the so-called grandparent of the adopted child) after death of the adopting parent: Is the adopted child an heir of the grandparent? Suppose the grandparent left a will in favor of the adopting parent who predeceased him : is the adopted child a “ descendant” of the adopting parent within the meaning of the statute preventing lapse? Does the legal relation of parent and child exist for all purposes under the law of inheritance, or only directly between the immediate parties to the adoption, including, as between them only, inheritance?'

Other equally doubtful questions, less frequently arising,, might be added. These are sufficient to enable us to consider the contrasted principles that might be resorted to.

I. We might consider the implication deduced from the-exception, as a controlling guide, and infer that the intent was to make the relation equivalent to the filial one for every'purpose affecting property, and in all directions collateral and remote as well as immediate, save as expressly

II. We might consider the object of the statute to be to legalize the assumed relation as between the adopting parent and the adopted child only, with the mere addition that the natural born children should take by intestate succession from the adopted child, in consideration of the fact that the adopted child would share in what otherwise would go wholly to the natural born children. Upon this view the statute would not give any right of inheritance to or from other persons, nor any right of substitution or representation under testamentary provisions or deeds ; and the exception could be regarded as unnecessary because only expressing a part of what would be excluded without it, by the strict construction of the terms of the statute.

A part of the practical importance of these questions will be found in framing wills and settlements in cases where there has been an adoption, where an appreciation of the difficulties of the statute may enable the draftsman to preclude controversy by express language.

The Statute and the Cases.

Laws of 1873, chapter 830, § 1, provides adoption as provided for by this act is the legal act whereby an adult person takes a minor in the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor,

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 parent and child and have all the rights and be subject to all the duties of that relation, excepting the rights of inheritance [and ?] 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 10 is amended by the Laws of 1887, chapter 703/ See below.]

Whether the clause in the act of 1873, “ excepting the right of inheritance” applied to personal as well as real property was doubted in Hill v. Nye, 17 Hun, 457 .

Laws of 1887, chapter 703, amending the Laws of 1873, chapter 830, § 10, as follows: “ 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 (including) the right of inheritance, and the heirs and next of kin of the child so adopted shall be the same as if the said child was the legitimate child of the person so adopting, 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-shall not be deemed to sustain the legal relation of child to the person so adopting so as to defeat the rights of remainderman and in case of the death of the person so adopted the person so adopting as above provided shall for the purpose of inheritance sustain the relation of parent to the person so adopted.”

Power v. Hafley, 4 Southwest Rep. (Ky.) 683, holding that children of an adopted child take by descent from the adopting parent as grandchildren.

The court, referring to the Kentucky statute, say: “ The word * kindred’ in section 1, c. 31 (‘ Of Descents’) Gen. St., is not necessarily confined to blood relations ; nor is the word ‘ children,’ in subsection 1, necessarily confined to children born in lawful wedlock, for these sections must be understood as merely laying down the general rules of inheritance and not as completely defining how the status is to be created which was the capacity to inherit.”

In Barnhizel v. Ferrell, 47 Ind. 335 , the court say: “Our statute contains no provision on the subject of the rights of the lawful and adopted children as between themselves. Under it their relation is not changed by the act of adoption. No right is given them to inherit from or through each other. They are naturally not brothers and sisters, but they have no right as such.”

S. P., Helms v. Elliot (Tenn. 1891), 14 Southwest Rep. 930.

Keegan v. Geraghty, 101 Ill. 26 . Under the Illinois statute for

Davis v. Krug, 95 Ind. 1 , lays down the rule, that upon the death of an adopted child unmarried and without issue, property which came to the child from the adopting parents shall descend to the adopted parents if either is living or if dead to their heirs, to the exclusion of the natural heirs of the adopted child.

To same effect see Paul v. Davis, 100 Id. 421.

Wyeth v. Stone, 144 Mass. 441 . Where a devise and bequest was made to the “ heirs at law” of a person who had an adopted child,, Held, under the Massachusetts Law of Adoption (Pub. Stat. c. 148, § 8), the adopted child could not take without proof that the testator intended that he should be included.

Estate of Sunderland, 60 Iowa, 732 . Under a statute of adoption providing that an adopted child may inherit from the-adopting parents as if he was their legitimate child, Held, that an adopted child was not enabled to inherit through his adopting parents and he could not take under the Iowa Code, § 2454, providing : “ If any one of his [intestate’s] children be dead the heirs of such child shall inherit his share in accordance with the rules herein prescribed in the same manner as though the child had outlived his parents.”

To same effect see Quigley v. Mitchell, 41 Ohio St. 375 .

Schafer v. Eneu, 54 Pa. St. 304 , 306. Where a devise was made to trustees for the sole and separate use of a married woman for life and upon her death to" be conveyed to her children and the: heirs at law of her children for ever, Held, that an adopted child of the devisee could not take although by the adoption the child had: acquired the full right of inheritance as a child of the adopting parent.

Reinders v. Koppelmann, 68 Mo. 482 . On the death of an adopted child his estate will go to his relations by blood even though it was'derived from his adopting parents, so held in absence of any statutory provision as to right of inheritance between an adopted child and his natural parents.

S. P., Hole v. Robbins, 53 Wis. 514 ,

Buckley v. Frazier (Mass. 1891) 27 Northeast Rep. 768. The public statutes of Massachusetts, chapter 148, § 7, provides that an adopted child shall inherit frqm his adopting parent as if born to-such parent in lawful wedlock. Pub. Stat. chap. 124, § 3, provides