Opinion
Argued January 24, 1898
Decided March 1, 1898
Alex. Thain for appellant. W.P. Prentice for respondent.
The petitioner, May Thorne Brantingham, the appellant, seeks to intervene in the matter of the probate of the will of Joseph Thorne, deceased, on the ground that she is his lawfully adopted child and interested in the distribution of his estate. It is found by the Surrogate's Court of Westchester county that on the 21st day of December, 1863, at the city of New York, Joseph Thorne, and Elizabeth, his wife, attempted to adopt the petitioner when she was one year and eleven months old (her father being dead) with the consent of her mother and the superintendent of the out-door poor, acting on behalf of the commissioners of public charities and correction of the city of New York.
This act of attempted adoption is established by the production of a written indenture or agreement duly executed, to continue until the infant attained the age of eighteen years.
It is further found that, in pursuance of this agreement, the petitioner became a member of the household of Joseph Thorne and Elizabeth, his wife, and that they maintained the relation of foster parents toward her down to the time of their death in the year 1897.
These findings were followed by the legal conclusion that the relation of adopted child and foster parents was not established by this agreement, for the reason that, at the time of its execution, there was no statute in this state authorizing such an adoption. The petition was dismissed.
The Appellate Division affirmed the order of the Surrogate's Court.
The adoption of children and strangers to the blood was known to the Athenians and Spartans, the Romans and ancient Germans.
This subject is discussed by many writers. The provisions of the Roman law, as modified by Justinian, were transmitted to the modern nations of Europe, and appear in the Code Civil of France and in the Spanish law. (31 Cent. L.J. 66.)
This form of domestic relation was, however, unknown to the common law of England, and exists in this country only by virtue of statute. ( Morrison v. Sessions' Estate, 70 Mich. 297-305; Ballard v. Ward, 89 Pa. St. 358; Abney v. De Loach, 84 Ala. 393; Carroll v. Collins, 6 App. Div. 106.)
The first general statutory provision in this state is contained in the Laws of 1873 (Ch. 830), entitled "An act to legalize the adoption of minor children by adult persons." This act, after providing for adoption in detail, contains in its last section this saving clause: "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 an adoption from having the effect of an adoption hereunder."
The 10th section of the act provides that the child should have all the rights and be subject to all the duties of the relation of parent and child, except the rights of inheritance. Subsequently this section, by Laws of 1887, chapter 703, was amended so as to confer the rights of inheritance. These statutory provisions remained in force until the enactment of the Domestic Relations Law (Ch. 272, Laws 1896, sections 60 to 68).
These, in brief, are the general statutory provisions in this state in the matter of adopting minor children, and it is obvious that the attempted adoption of the petitioner in 1863 was without legal sanction, unless it be true, as is contended by counsel for the appellant, that the saving clause already quoted from the act of 1873 was intended to legalize all private agreements for adoption previously executed. While there has been some diversity of opinion in the lower courts as to the precise meaning of this clause, we think the only construction permissible is that it refers to those forms of adoption theretofore existing by virtue of special statutory enactments contained in the charters of charitable societies that received destitute and homeless children, and whose officers were permitted to execute agreements of adoption on their behalf with suitable persons willing to assume the obligations of parents. This is illustrated by the act to incorporate the American Female Guardian Society, a well-known charitable institution in the city of New York. (Ch. 244, Laws of 1849.) Section 6 of this act provides in substance that where a child is surrendered to the management of the society, it shall be lawful for the board of managers, in their discretion, to place such child by adoption or service in some suitable employment and with some proper person or persons.
It is obvious that the legislature did not have in contemplation the legalizing of private agreements executed without authority of law and containing no safeguards or restrictions of any kind as to the transmission of property. Any such construction of the saving clause in the act of 1873 might seriously affect the titles to real estate and introduce many elements of danger.
It follows that the agreement in this case, relied on to create the relation of foster parents and adopted child, worked no such result, and that the order appealed from should be affirmed, with costs.
All concur, except GRAY, J., absent.
Order affirmed.