In re the Estate of Butler

Charles H. Butler died in September, 1889, leaving a last will and testament, which has been officially proved and is now in full force and operation. The will contained, among other provisions, á bequest of a legacy in these words: “ To my adopted son, Edward K. Butler, five hundred shares of stock in the corporation known a3 Butler Brothers.” It turns out now that the value of the stock so bequeathed is about $50,000.

This adopted son was taken by the testator and1 his wife from a charitable institution in the city of Boston, in the month of February, 1878, when he was about two years old, with a desire and design and under an agreement with the officers of the institution to adopt him as a son and provide him a home, and the child was immediately taken into the family of the testator, where he remained down to the time of the death of the latter, a period of more than eleven and a half years, during all of which time the boy was cared for; supported and maintained solely by the testator, and treated in all respects as a son. He was always spoken of by the testator and all the members of his family as his child, and he was held out to the world as the child of the testator, and supposed himself to be such, and did not know to the contrary until after the death of .the testator.

In July, 1884, the boy was formally and legally adopted by the testator, with the consent of his wife, under and in pursuance of the laws of the State’ of Massachusetts, which are substantially the same as our own statutes upon this subject, as we gather from the

The statute which is to dictate the decision of this appeal, so far as it has application to this case, is this: “After the passage of this act all property which shall pass by will or by the intestate laws of this State from any person * * * other than to or for the use of his or her father, mother, husband, wife, child, brother, sister, * * * or any child or children adopted as such in conformity with the laws of the State of New York, or any person to whom the deceased for not less than ten years prior to his or her death stood in the mutually acknowledged relation of a parent * * * shall be and is subject to a tax of five dollars on every hundred dollars of the clear market-value of such property.” (Laws of 1887, chap. 713, § 1, amending chap. 483 of the Laws of 1885.)

It was the design of this statute to impose a burden upon all property which should pass by will or by the intestate laws of this State to any person or persons or body politic or corporate, other than to or for the use of certain persons, among whom are adopted children. The section is somewhat awkwardly constructed, but the intention of the legislature to exempt adopted children’ from the operation of the law is plainly manifested. In fact, there is no controversy upon that point in this case, but the appellant has thus far been deprived of the benefit of the exception in this statute because he was not an adopted son of the testator who gave him the legacy.

The question for our determination, therefore, is whether this appellant stands within the class of persons who are relieved from the burdens imposed by this statute. “Any child or children adopted as such in conformity with the laws of the State of New York, or any person to whom the deceased for not less than ten years prior to his or her death stood in the mutually acknowledged relation of a parent,” is within the exemption provided by the law, and this appellant was both adopted in conformity with the law of

This statute does not require the proceedings for adoption to be under the laws of.this State or within this State, but to be in conformity with them, to be like them and to correspond in character and manner with them, wherever they are conducted; and an examination of the proceedings in Boston for the adoption of this child shows that they conform substantially to the requirements of our statute. There is no reason for a severe construction of this statute. This boy was legally adopted under laws substantially similar to our own, so far as the mode of procedure is concerned, and that is sufficient to answer the requirements of this law. Moreover, the deceased stood in the mutually acknowledged relation of a parent to this appellant for eleven years and a half prior to his death. No evidence of adoption is required by this portion of the statute, but mutual acknowledgment, and that is proven in this case by all the facts and circumstances which cluster round these parties from the commencement of their relation to the death of the testator.

The appellant, from his earliest recollection, believed the testator to be his father, recognized him as such and knew no other, and the testator took him to his home as a child and treated him in all respects as a son. Their relations were parental and their entire conduct was a mutual acknowledgment of their relation. The child was taken in helpless infancy with no expectation of compensation or services. He was treated as a son and was obedient to his foster father and dependent upon him, and the statute requires no higher proof of mutual acknowledgment. The word mutual in this statute has no abstruse signification. It means and requires reciprocity of action, correlation and interdependence, and finds its best illustration and application in the relations existing between parents and children, which are always mutual. This construction of the statute was adopted in the Matter of Spencer’s Estate ( 4 N. Y. Supp., 395 ), in a very able and exhaustive opinion by Mr. Kennedy, Surrogate of Madison county. Our common experience teaches us that children at three years of age recognize their parents and are able to designate them by words and actions, and we find no difficulty in concluding from the record before us that the appellant recognized the testator

Our conclusion, therefore, is that the order appealed from is erroneous and should be reversed, with costs to be paid from the estate by the executors.

Barnard, P. J., and Pratt, <L, concurred.

Order of surrogate reversed, with costs to appellant out of estate.-