In re the Final Judicial Settlement of the Accounts of Haight

The question presented for determination in this matter is: Does Lucy Barlow, a legally adopted daughter of one Jonathan Hyatt, a brother of the testator, share in the distribution of the real and personal property of the testator, with his natural born nephews and nieces, under the terms of the will? The provision of testator’s will under which this controversy arises reads as follows: “ Fourth. I give, bequeath and devise all the rest, residue and remainder of my estate, both real and personal to all my nephews and nieces (children of my brothers and sister), share and share alike.”

At the time of Hyatt’s death he had the following nephews and nieces related by blood, viz.: Fred, Bert and Mary Hyatt, children of his deceased brother James; and James H., Henry and Francis E. DuBois, children of his sister Mary. His brother Jonathan, who is still living, had no children, except an adopted daughter, Lucy Barlow, the claimant upon this accounting for a share of testator’s residuary estate. In arriving at a decision I have disregarded all parol evidence, except that which relates to the testator’s knowledge as to the fact of Lucy Barlow’s adoption by his brother Jonathan, and have endeavored to draw from the language of the will, aided by such evidence and the circumstances surrounding the testator at the time of its execution, Ms intention as to who were to be objects of his bounty, and whom he desired to have his property, and as to whether it was his intention to include or exclude her from participation in his estate. That the gift was to a class there is no dispute; that Lucy Barlow came within tMs class is disputed. As between foster parent and adopted child the statute gives the right of inheritance, each from the other (Dom. Rel. Law, § 64), and this right has been upheld in numerous cases. But this right has never been extended, by statute or by judicial interpretation, to the child to inherit from the collateral kin of the foster parent (Kettell v. Baxter, 50 Misc. Rep. 428 ), and, while this i-s not a case of intestacy, yet, the question of inheritance has much "to do with determining the claimant’s right under this will, in the light of the testator’s knowledge of her relations to his brother. The

It clearly appears that testator never recognized the existence of any artificial relation of parent and child between Jonathan and Lucy. In fact, he did not know that she was legally adopted, but understood and believed that she was not. In the light of his knowledge at the time of the preparation of the will and the incidents occurring at that time, it appears that he did not intend to give the claimant any portion of his estate, and that he was satisfied from the knowledge he possessed that the language of the will would exclude her as a legatee, and his property be divided among the dhildren born to his “ brothers and sister ” as he evidently intended. I believe that when he desired his property to go to his “ nephews and nieces ” he intended those persons who held such relation by the operation of usually recognized relations in society, and that it would be contrary to the wish and intention of the testator for me to read into the will any language or to draw therefrom any inference which would include the claimant within its provisions. It seems to me that had the testator intended Lucy Barlow to be one of his beneficiaries he would have expressly mentioned her as such, because the only natural inference that can be drawn of the state of mind of the testator at the time the will was executed is, that she would not take under its provisions, showing clearly to me that his express intention was to exclude her as a .beneficiary.

My conclusion, therefore, is, that Lucy Barlow should be excluded in the distribution of this estate.

Let a decree be entered accordingly.

Decreed accordingly.