Simmons v. Burrell

This action was brought by the plaintiffs to obtain a judicial construction of the last will and testament of Fdward J. Simmons, late of the city of Lockport, in the county of Miagara, M. Y. On the 26th of August, 1892, Edward Simmons made, executed, and published his last will and testament, and in and by which the defendant Myron L. Burrell was appointed sole executor thereof; and on the 27th day of September, 1892, he (said Simmons) departed this life, being a resident of the said city of Lockport. ■ This will was admitted to probate on the 21st of Movember, 1892, by the surrogate of Miagara county ; and letters testamentary thereon were issued to Burrell, who assumed the duties of his trust, and is still such executor. The testator left real and personal property of the value of about $40,000, of which about $20,000 was real estate. The will empowered the executor to sell the real estate, except the testator’s residence, and dispose of the property as therein appears. After providing for the payment ■of his debts, in the first clause, he, by the second, third, fourth, and fifth clauses, makes provision, by way of legacies, for the defendant, Lillie M. Simmons, whom he designates in the will as “ the person known as Lillie M. Simmons, and as my adopted daughter.” He sets apart certain sums for her use during life, ■and also the residence of the deceased in Lockport, some of which legacies are to be hers absolutely, in certain contingencies, and a relative, Mary Ann Belden, to have a home in the house, and certain support out of these legacies. The sixth clause gives to his brother Walter Simmons a weekly support, and the interest on certain funds which are set apart for him, ■and the principal, or so much thereof as should be needed for his support; and the remainder of that sum should become a part of the residuary estate, under the thirteenth clause of the will. The remainder of certain legacies given to Lillie should also go to the residuary estate under the thirteenth clause. By the seventh, eighth, ninth, tenth, eleventh, and twelfth clauses, certain legacies were given to his relatives and to religious organizations; the ninth being to the First Free Congregational Church of Lockport, which will fully appear hereafter. The thirteenth clause is as follows: “Thirteenth. I give, devise, and bequeath all the rest, residue, and remainder of my estate and property, of every name, kind, and description, to the American Congregational Union, incorporated in the city of Mew York in the year 1853, its successors and assigns; to the American' Home Mission

Aside from the properties that fall into this clause, as above-stated, there were ten or twelve thousand dollars of property that was disposed of directly to these corporations by this clause. The deceased left no wife or children, except his adopted child, Lillie, or descendants from children, or father or mother, but left brothers and sisters, nephews and nieces, at whose instigation this action was commenced, claiming to be the next of kin of the deceased. Up to the time of the trial the executor had sold and invested in real estate securities, or had the proceeds of the sales in some form, amounting to $11,500. The debts of the deceased did not exceed $1,000. The complaint demands relief, among other things, that the legacies to the corporations in the thirteenth clause be declared invalid, and that they take nothing under the will, the reason being given in the complaint that the will had not been executed two months before the death of the testator. It also demanded that $500 of the legacy given to the Society of the First Free Congregational Church of Lockport be adjudged invalid, and that the court adjudge that the defendant Lillie M. Simmons is not the daughter, by legal adoption, of the deceased, and not entitled to any right, title, or interest in the estate of the deceased, except such portions of the estate as are especially devised and bequeathed to her by the will itself, and that the plaintiffs be adjudged to be the heirs and next of kin of the deceased, and entitled to all the property that came into the thirteenth or residuary clause. The defendant Lillie answered that she was legally adopted by the deceased under the laws of this state, and thereby became and is his heir at law. The corporations mentioned in the thirteetith clause-severally answered, insisting upon their rights, respectively, to the property devised and bequeathed to them. The executor also answered, insisting upon the validity of all of the provisions of the will. The defendant Lillie came into the family of the deceased when she was about two years of age; took the name of Simmons; was treated by the deceased and his wife as their daughter, in every respect. She was not even aware that she was not their daughter until about 14 years of age. She remained at home with the deceased, and in his family until' his death, discharging faithfully the duties of a daughter in the household ; she calling the deceased and his wife “ father ” and “ mother,” and they calling her their daughter, and she being recognized as such among friends of the parties, and in the will of the deceased. The ma"nner of her adoption, and the grounds upon which she predicates her claim that she is an heir and next of kin of the deceased, will' be considered hereafter.

Some of the defendants insist that the plaintiffs, as the assumed heirs and next of kin of the deceased, have no standing in court, and have no right to maintain this action, and cite Whitney v. Whitney, 63 Hun, 59 ; 43 St. Rep. 841 , and Read v. Williams, 125

And cites Bowers v. Smith, 10 Paige, 193, and other cases, and proceeds: “ Any person claiming an interest in the personal estate of the testator, either as legatee under the will, or as entitled to it under the statute of distribution, may file a bill against the executors to settle the construction, and ascertain the validity, of the provisions of the will, so far as the complainant’s interest is concerned, and to enable him to obtain from the executors such portions of the estate as he is either legally or equitablv entitled to.”

And again, at page 168, the court say: “If the court had obtained jurisdiction for the purpose of establishing the equitable rights of the next of kin to the personal estate, that carries with it jurisdiction to adjust the whole controversy.” And citing also, at this point, 10 Paige, 200.

And the jurisdiction obtains whether the party asking the construction seeks to maintain the trust founded upon the will, and obtain a benefit from it, or to destroy the trust, and secure benefits thereby, as, in either event, the court is called to pass upon the validity and effect of the trust itself, whether that trust be an express, or resulting one. See, also, Read v. Williams, 125 N. Y. 560 ; 35 St. Rep. 909 ; Tiers v. Tiers, 98 N. Y. 568 ; Adams v. Becker, 47 Hun, 65 ; 13 St. Rep. 41 ; Van Camp v. Fowler, 36 St. Rep. 580 ; 13 N. Y. Supp. 1 .

A trust is plainly created, so far as the language goes, by the ninth clause of the will, which is as follows: “ I give and bequeath to the Society of the First Free Congregational Church of Lockport, FT. Y., the sum of two thousand dollars, to be expended for such purpose as the board of trustees of said society shall think best; to be paid within three years after my decease. And I also give and bequeath to the said the Society of the First Free Congregational Church of Lockport, N. Y., the further sum of five hundred dollars, in trust to invest the same at interest, upon good

This church was what its name imports,—a Congregational church,—incorporated in 1838 under the act concerning religious corporations and societies, passed April 5,1813. The plaintiffs attack the $500 bequest given to the church in trust as void for indefiniteness and uncertainty in the designation of the beneficiaries of the trust. It is apparent that it was not intended by the testator to give this fund to the church for its own uses and purposes, as he lawfully might do, and as has been done in the bequest of the $2,000 in the preceding clause. He is careful to say, with respect to this $500, that it is “in trust," and “ is not to be loaned to. the church, or used by the church.” And the question now is, whether the plaintiffs’ obj ection is well taken. The beneficiaries are certainly not pointed out specifically. It is left to the judgment of certain ladies of the congregation, to select the objects of this bounty', and to clothe the children that, without such clothing, would not attend the Sabbath school; and the range of this discretion seems to be very wide, and any children that the. ladies might think poor can be selected, no matter whether they are members of the church or congregation, or members of the Sabbath school, or connected therewith, or reside in Loekport or elsewhere. The counsel' for the church cites, as sustaining the validity, of this clause, Williams v. Williams, 8 N. Y. 525 -530, and Powers v. Cassidy, 79 N. Y. 602 . The first of these cases was decided in 1853—three judges dissenting—and the facts were these: A testator gave to three trustees of the village of Huntington, $6,000, in trust, as a perpetual fund, the interest of which was to used for the education of the children of the poor, who-should be educated at the academy in the village of Huntington. The bequest was there sustained upon the English doctrine of charitable uses that was in force in England prior to the revolution, and therefore, the court say, was in force in this state, and that our Revised Statutes relative to uses and trusts do not apply to bequests for charitable uses; this doctrine of charitable uses, so far as it affects the question before us, being that devises and bequests for the support of religion or charity, though defective for want of sucli a beneficiary as the rules of law require in other cases, e would, “ when not in violation of the mortmain act, be supported and established in the court of chancery.” A long struggle in our court of appeals followed, upon this question, and in the case of Levy v. Levy, 33 N. Y. 97 , the doctrine of the 8 N. Y. was vigorously assailed; and in Prichard, v. Thompson, 95 N. Y. 76 ; Holland v. Alcock, 108 N. Y. 312 ; 14 St. Rep. 761 ; Cottman v.

The defendant, the American Congregational Union (its name having been changed so that it is now the Congregational Church " Building Society), it is conceded by the pleadings and established by the proof, was incorporated under the act “ For the incorporation of benevolent and charitable, and scientific and missionary societies, being chapter 319 of the Laws of 1848.” By the sixth section of that act, corporations formed thereunder could not take a valid devise or bequest made in any will which should not have

The defendant the American Home Missionary Society, now known as the Congregational Home Missionary Society, was incorporated under and by virtue of an act of the legislature of this state, being chapter 21 of the Laws of 1871; and by the second section thereof it was provided that the corporation should be capable “ of taking, holding by purchase, gift, grant, devise or bequest, subject to the provisions of law relating to devises and bequests by last will and testament, real and personal property, of granting or otherwise disposing of the same for said purpose.” The declared object of this corporation was “ for the purpose of assisting feeble congregations, and of sending the gospel, and the means of Christian education, to the destitute within the United States.” The right, therefore, to take by devise or, bequest, was made subject to the provisions of § 6 of the act of 1848, above referred to, and the bequest, not having been made within two months of the testator’s death, is invalid for that reason.

The defendant the American Missionary Association was incorporated, under chapter 858 of the Laws of 1862, for the purpose •of “conducting missionary and educational operations, and diffusing a knowledge of the Holy Scriptures in the United States and in other countries.” By the fifth section of this act, devises and bequests not made to the corporation at least two months before •the death of the testator were not valid. But by chapter 52 of ■the Laws of 1886 this § 5 was repealed, so that the two-months limitation does not apply to this corporation; and therefore the bequest to it in the thirteenth clause is valid, so that it will take one-third of the whole of the residuary fund. It is claimed by the counsel for this corporation that, if the other corporations cannot take, the whole fund disposed of by the thirteenth clause should go to the American Missionary Association, as the testator evidently intended to devote this residue to charitable uses; that the effect of the provision was to make, a class of the three societies; and that it is well settled that upon a failure of one or more of a class to take, the residue goes to the one entitled to take or the survivor. I find no warrant for this contention in the will. On the contrary, by the thirteenth clause, the residue is bequeathed to these societies by name, “to, be equally divided between them, share and share alike; to be used by said three societies, and applied to the charitable use and purposes of said societies, respectively."

Some question has been made, upon the argument, about the j>ower of the court to determine in this action the status and rights of the various parties to the action, as to the property in dispute; the claim being.that this is an action for the construction of the will, and not to determine who are entitled to take under it that part of the property, at least, which is to go to the heirs of law or next of kin. There is much force in this question, but, as before said, the plaintiffs have asked that the court determine in this action the status of the plaintiffs and of Lillie Simmons in relation

The finding will show, substantially, that the plaintiffs represent the interests of the blood relatives—so to speak—of the deceased. The important question now to determine is as to whether Lillie Simmons was the adopted child of the deceased, and the effect of such adoption.

By chapter 244 of the Laws of 1849 a society was incorporated by the name of the American Female Guardian Society, and it was declared by the second section that'the object and business of the society should be, “by the publishing and diffusion of books, papers and tracts, and by other moral and religious means, to prevent vice and moral degradation, and to establish and maintain houses of industry and homes for the relief of friendless, destitute or unprotected females, and for friendless or unprotected children,”—its business to be conducted by a' board of managers. By the fourth section the corporation had the right to hold property for the uses of the society, and receive by gift or devise, in the same manner, and subject to the same restriction, as religious ■corporations, and to possess the rights of corporations according to the provisions of title 8, c. 18, pt 1, of the Revised Statutes, so far as applicable; and by the sixth section it was provided that, “ in all cases where a child shall have been surrendered by its natural or other legal guardians to the care and management of the society,” etc., “ it shall be lawful for the board of managers, at their discretion, to place such child by adoption or at service in some suitable employment, and with some prqper person or persons, conformably to the laws of this state in regard to the binding out of indigent children, provided that in all such cases the terms of the indenture shall be approved by the commissioners of the alms house or of the surrogate of the city and county of New York, which, approval shall be signified on such indenture by the signature of such commissioners or surrogate, but in every such case the requisite provision shall be inserted in the indenture or contract of binding to secure the child so bound such treatment, education or instruction as shall be suitable and useful to its situation and circumstances in life.” It is difficult to conceive a more praiseworthy object than the purpose for which this corporation was created,—to rescue the little waifs of society, mainly females, who had been abandoned by their natural guardians, and thrown upon the world without protection or a home, from “vice and moral degradation.” This statute, in view of its high and beneficial purposes, should receive a liberal construction, in order to fully carry out those purposes; and it appears from this sixth section that one of two courses was open to these societies, with reference to these children,—either have them adopted, or bind them out to service. If they were to be bound to service simply, the fd’rm of binding, and the nature of the contract of service that should be-entered into between the society and the person receiv

Then followed the usual provisions as to’ the apprentice’s duty, and that of the master, as required by law, as to the binding out of indigent children, and it aleo contained this significant provision: “Although the present instrument binds the above-named child strictly as an apprentice, it is nevertheless the true intention of the parties of the first part to place, and the party of the second part to receive, said apprentice as an adopted child, to reside in the family of the party of the second part, to be maintained,

So the real purpose of the instrument was to adopt the child. Thus the child was lifted from the apprentice at service to the dignity of a member of the family, and, while her servitude continued, she was to have the care, solicitude, and protection of a child in the family, and after the servitude ended, at the age of 18, she was still a child by adoption, and entitled to all the privileges of a child; and therefore the relationship between the parties did not end, as contended by the learned counsel for the plaintiffs, when she reached the age of 18. - This instrument of adoption and apprenticeship was executed in duplicate by the parties thereto, and approved by the surrogate of the city and county of New York. The child was taken to the home of the testator, and immediately took the name which she now bears, of Lillie Simmons, and the relation, as a matter of fact, of parent and child, existed ever after between the deceased and Lillie. The word “adoption” or “adopt,” as used in this instrument, is a broad term, and of great significance. Webster’s Dictionary, as well as the Imperial Dictionary, defines adoption to be “the act of adopting, or the state of being adopted; the taking and treating of a stranger as one’s own child.” The Encyclopedia Britanniea defines it to be “the act by which the relations of fraternity and affiliation are recognized as legally existing between persons not so related by nature.” And Worcester defines the word “adopt” “to receive and treat as a son or daughter one who is the child of another; to affiliate; to take, select, and assume as one’s own.” And adoption was practiced from the remotest antiquity, and was established to console those who had no children of their own. Bouv. Law Diet. Prior to the enactment of chapter 830 of the Laws of 1873, as amended by chapter 703 of the Laws of 1887, adopted children could not inherit or take as next of kin from the persons adopting them, in this state. In Borne, where the civil law prevailed, and to some extent in the Grecian states, the right to inherit was given to children who had been adopted. But in order to protect the heirs and next of kin of the person adopting, whose interests were to be affected by the adoption, and in all countries and states where the right of inheritance has been conceded to adopted children, some form of adoption, of a public character, under sanction of law, or by consent of the authorities, has been required. As far as I have been able to ascertain, the right to inherit has ’never been given to any child or person whose adoption was simply by parol. The right of inheritance was not given to adopted children by the English law. The instincts of feudalism and the theory of primogeniture rejected it. Hor was it permitted in the earliest histories of the states of our Union. But now, in many states, including our own, special provisions have been made by law for adoption, and for the right of inheritance in the person adopted ; and this policy is now deemed a wise one in most enlightened countries and states, as it completes and solidifies that relation created by the adop

It is well known that at the time of the passage of the act of 1873 there had been many adoptions of children in this state under various statutes, such as the one under which Lillie was adopted, and by various charitable, religious corporations or orphan asylums, or other persons having charge of children needing homes and protection.' These adoptions had been through instruments executed between the parties1 disposing of and persons adopting the children, and the indorsement or consent of some public official, like a surrogate, supreme court judge, county judge, or commissioner, had been required. These acts were revised and consolidated by chapter 438, Laws 1884; and see § 7 thereof. Sometimes these instruments assuming to create adoption had been defective, and had not conformed absolutely to the provisions of the law under which they were executed. But the parties interested had relied and acted upon them, and it was important that they should be sustained; and the legislature at length concluded to legalize them, and to prescribe a uniform method of adoption for the future, and proceeded to do so by this act of 1873, and marked out a course of procedure to govern such future adoptions. And it was provided in the tenth section of the act of 1873 that a person, when adopted, should take the name of the person adopting, and the two should thenceforth sustain towards 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. But by chapter 703 of the laws of 1887, which amended the tenth section by expunging the words “excepting the right of inheritance," and inserting after the word “relation,” in the fourth line of the section, these words: “Including the right of inheritance, and .the heirs and next of kin of the child so adopted shall be the same as if the child was a legitimate child of the person so adopting."

The concluding section of the act of 1873, § 13, provided 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 with the like sanction arid consent as is required for an act of adoption under the eighth section hereof, and any agreement and consent in respect to such adoption or abrogation thereof hereafter to be made shall be in writing, signed by such county .judge or a judge of the supreme court, and the same or a duplicate thereof shall, be filed with the clerk of the county and recorded. * * * But nothing in this act contained in regard to such adopted child in

This statement is too plain for cavil or comment.' It, so to speak, adopted all former adoptions, pursuant to any method practiced in this state. It brought these adoptions under and within the purview of this statute. It gave all the persons who had thus been adopted, after the amendment of 1887, the right to inherit and take, as next of kin, the property of the intestate who had adopted them; and the section was"careful to say that persons adopted theretofore should not be deprived of their adoption except by a proceeding for that purpose, with the like sanction and consent that were made necessary for adoption under that act itself. And it is entirely clear that in providing a method for adoption, the recording of the adoption papers, etc., and in optaining the consent necessary for a valid adoption, provided in that act, it only related to future adoptions. ' It is true that the act of 1887 uses the word “inheritance.” as applied to adopted children, which, in its strict meaning, refers only to real estate; but. the legislature evidently used this word in its broad sense, and as commonly accepted,—as a right to both real and personal property of which the parent died seized or owning. This is evident from the words following the word “inheritance,”—“and the heirs and next of kin of the child so adopted shall be the same as if the said child was a legitimate child of the person so adopting.” It could not have been the intention of the legislature to clothe the children of the adopted child with any right additional, as to the property of the person adopting, than- the person adopted himself enjoyed. "

The learned counsel for the plaintiff cited, as in conflict with the views here expressed, the case of Hill v. Nye, 17 Hun, 457 . That case arose after the passage of the act of 1873, and was decided in 1879, and was consequently before the passage of the amendment of 1887, conferring the right of inheritance. In that . case one Cheeny Hill and his wife had an infant child. Oheeny went to state’s prison for a long term of years, and his wife gave the child (a boy) to one Kelsey. There was no adoption under any statute, or under any form of writing, but it was simply a parol gift of the child. The boy took the name of Kelsey, lived in his family as a child, married, and had a son. That son had some personal property, and "died at the age of seventeen, his father and mother having died before him. The property had to be distributed, therefore, under the statute of distributions. The question was, whether the paternal grandfather (Hill) was entitled to share in the distribution, or whether he was excluded by the adoption of his son by the said Kelsey. The court, at general term, rightly held that Hill was entitled to share in the distribution with the relatives of the deceased on his mother’s side, and this parol adoption did not bar Hill from taking. Ho one would

Again the judge says: “We have been unable to find any provision in the act of 1873 which indicates an intent to interfere with the statutes of distribution in respect to cases of adoption, like the one before us. When a case shall arise under the statute of 1873, it will present numerous interesting questions, as the statute is somewhat indefinite and obscure. * * * The words ‘ excepting the right of inheritance ’ are apt and appropriate words to be used with an intent to except from the new departure such inheritance of real estate as would pass under the laws regulating descent.”

The judge, therefore, seems to concede that the case before him did not arise under the statute of 1873, and consequently any attempt to construe it was unnecessary, and therefore obiter, but he lays stress on the fact that the right of inheritance was excepted: Is it not fair to assume that had the case before us, with the statute as amended, been before the judge at that time, he would have reached very different conclusions. The title of the act of 1873 is important in aid of its construction, especially so when, as the learned judge says, “the statute is somewhat indefinite and obscure.” In such cases, resort may always be had to the title of the act, in order to ascertain its purpose and object, arid that title is,, “ An act to legalize the adoption of minor children by adult persons.’1 This is in harmony with the thirteenth section, and the general policy of the law. If the former adoptions were not to be

The complaint asks an adjudication as to the right of Lillie to devise or bequeath by will the sum of $7,000, or the securities in which the same may be invested, mentioned in the fourth provision of the will, in case she should not marry, or have a child born to her. It was conceded upon the argument that she would have this power, by all parties, and I have therefore not considered it; and the conclusions above reached render it unnecessary to do so. Eo relief can be given the plaintiffs in this action, as they take nothing by it, but the questions are important, and proper to be brought before the court for adjucation, and the plaintiffs were justified in doing so. They should therefore recover costs, to be paid out of the fund, the property of the deceased. The defendant the American Missionary Association should also recover costs. The defendant the Society of the First Free Congregational Church of Lockport should have costs, as its defense was made in good faith, and for a meritorious qbject. The defendant the executor Burrows should recover costs, and also the defendant