Bourne v. Dorney

Headnote

Bourne v. Dorney, 184 App. Div. 476 , affirmed.

Appeal from a judgment entered July 3, 1918, upon an order of the Appellate Division of the Supreme Court

in the second judicial department, reversing a judgment in favor of defendant entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff for the relief demanded in the complaint. Charles W. Alexander, on the 15th day of February, 1886, duly made and executed his last will and testament, by which he devised his entire estate to his wife, Catherine Alexander. On December 20, 1897, he duly adopted Cecilia Croft, the plaintiff, and her sister, Lauretta Croft, who were minors, and the only children of Lauretta Croft, his deceased daughter. On January 8, 1917, Mr. Alexander died seized of the premises in the complaint described, leaving him surviving his widow and plaintiff, his adopted daughter. On August 27, 1916, Mrs. Alexander died, leaving a will by which she devised all her property, real and personal, to defendant, as trustee, for the purposes therein mentioned. Plaintiff brought this action to bar defendant, as trustee, from all interest or claim in the real property described in the complaint, upon the theory that pursuant to section 114 of the Domestic Relations Law (Cons. Laws, ch. 14), her adoption had the effect of making her a child of said Charles W. Alexander as if she were born to him on the date of her adoption, and gave her the same rights as an after-born child under section 26 of the Decedent Estate Law (Cons. Laws, ch. 13). The defendant claimed that the devise of the premises in question by Mr. Alexander to his wife was not revoked by his adoption of plaintiff after making his will, and that he, as trustee, is the owner of said premises, and that plaintiff has no title thereto.