An abrogation of an adoption requires an agreement executed by the parties interested and the consent of the surrogate. The surrogate in giving his consent acts in his administrative, not in his judicial capacity, nor is the consent signed by him a decree or order of the Surrogate's Court. Hence, a surrogate has no jurisdiction to revoke the abrogation of an adoption, which relief can be obtained only in a court of equity. Matter of Ziegler (1914), 161 App. Div. 589, 146 N. Y. Supp. 881; Stevens v. Halstead (1917), 181 App. Div. 198, 168 N. Y. Supp. 142. Compare Matter of Johnston (1912), 76 Misc. 374, 137 N. Y. Supp. 92. The powers of the county judge to abrogate the voluntary adoption of a minor are strictly statutory, but, it seems, that the Supreme Court in the exercise of its equity jurisdiction may annul an adoption which violates equitable principles, and has ample power at law and in equity to promote the welfare of a child, notwithstanding a legal adoption. Matter of McDevitt (1917), 176 App. Div. 418, 162 N. Y. Supp. 1032, affd., 221 N. Y. 598. The heir and next of kin of a deceased foster parent who adopted a woman with whom he was living in adultery may maintain a suit in equity to annul the adoption, and is not restricted to a motion before the surrogate to vacate it. Stevens v. Halstead (1917), 181 App. Div. 198, 168 N. Y. Supp. 142. Adoption and abrogation thereof are not contracts between private persons within the meaning of the Federal Constitution relating to the impairment of contracts. Matter of Ziegler (1913), 82 Misc. 346, 143 N. Y. Supp. 562. An order of adoption made without the consent of the father or the fact of abandonment existing, must be abrogated. Matter of Johnston (1912), 76 Misc. 374, 137 N. Y. Supp. 92. Jurisdiction of the surrogate to make an order confirming an agreement by grandparents for the adoption of their deceased daughter's infant child, made without the consent of the father, who had no notice of the application for said order, and on proof that he had abandoned the infant, may properly be raised on the father's application for the abrogation of such adoption upon allegations that he had made proper provision for the maintenance of the child and upon his denial of the charge of abandonment. Matter of Johnston (1912), 76 Misc. 374, 137 N. Y. Supp. 92. The voluntary adoption of an infant to which the parent consented and which fully complied with all the statutory requirements, cannot be abrogated by a county judge without the consent of the foster parent, for the abrogation is controlled entirely by the statute, which requires the consent of all parties concerned. Matter of McDevitt (1917), 176 App. Div. 418, 162 N. Y. Supp. 1032, affd., 221 N. Y. 598. The consent of a mother who has been divorced for her adultery is not necessary in an abrogation proceeding. Matter of Ziegler (1913), 82 Misc. 346, 143 N. Y. Supp. 562. ARTICLE II. ADOPTION FROM CHARITABLE INSTITUTIONS. (Fiero, Spec. Pro., 3rd Ed., pp. 72-77.) DOM. REL. LAW, § 115. Adoption from charitable institutions. Dom. Rel. L., § 115. Adoption from charitable institutions. An orphan asylum or charitable institution, incorporated for the care of orphan, friendless or destitute children may place children for adoption and the adoption of every such child, shall, when practicable, be given to persons of the same religious faith as the parents of such child. The adoption shall be effected by the execution of an instrument containing substantially the same provisions as the instrument provided in this article for voluntary adoption, signed and sealed in the corporate name of such corporation by the officer or officers authorized by the directors thereof to sign the corporate name to such instruments, and signed by the foster parent or parents and each person whose consent is necessary to the adoption; and may be signed by the child if over twelve years of age; all of whom shall appear before the county judge or surrogate of the county where such foster parents reside or, if such foster parents do not reside in this state, in the county where such institution is located, and be examined except that such officers need not appear; and such judge or surrogate may thereupon make the order of adoption provided by this article. Such instrument and order shall be filed and recorded in the office of the county clerk of the county where such adoption takes place and the adoption shall take effect from the time of such filing and recording. Amended by L. 1916, ch. 453; L. 1918, ch. 280. (B., C. & G. Consol. L., 2nd Ed., p. 1947.) The status and rights of adopted children in the United States are purely the creation of statute. Adoption was unknown to the common law. Since the Domestic Relations Law took effect, the mutual rights and liabilities of foster parents and children adopted from public institutions, including their mutual rights of inheritance, are the same as if the adoption had been made with the consent of the child's parents rather than from a public institution. United States Trust Co. v. Hoyt (1912), 150 App. Div. 621, 135 N. Y. Supp. 849; Rosekrans v. Rosekrans (1914), 163 App. Div. 730, 148 N. Y. Supp. 954. A Roman Catholic institution stands in loco parentis as to children surrendered to its custody pursuant to its statutory power to receive deserted children and those surrendered to it and place them by indenture or adoption. Where two foundlings in such an institution were surrendered to a married couple on condition that said children should be brought up in the Catholic faith and the wife dies a member of the Roman Catholic church, an order for the adoption of the children on the petition of the surviving husband who has no definite religious belief cannot be granted without the consent of the institution. Matter of Korte (1912), 78 Misc. 276, 139 N. Y. Supp. 444. Where a mother, a widow, has been deprived of the custody of her children and they have been committed to a charitable institution upon a judicial determination that the mother is a dissolute person and has neglected them in violation of section 486 of the Penal Law, she cannot attack an order of the Surrogate's Court authorizing the adoption of said children by their uncle merely because the proceedings were had without notice to her. A determination of the Children's Court committing the children to the charitable institution as aforesaid had the effect of judicially depriving the mother of their custody within the meaning of our adoption statute. Matter of Antonopulos (1916), 171 App. Div. 659, 157 N. Y. Supp. 587. ARTICLE III. EFFECT OF ADOPTION. (Fiero, Spec. Pro., 3rd Ed., pp. 77-82.) DOM. REL. LAW, § 114. Effect of adoption. Thereafter the parents of the person adopted are relieved from all parental duties toward, and of all responsibilities for, and have no rights over such child, or to his property by descent or succession. Where a parent who has procured a divorce, or a surviving parent, having lawful custody of a child, lawfully marries again, or where an adult unmarried person who has become a foster parent and has lawful custody of a child, marries, and such parent or foster parent consents that the person who thus becomes the stepfather or the stepmother of such child may adopt such child, such parent or such foster parent, so consenting, shall not thereby be relieved of any of his or her parental duties toward, or be deprived of any of his or her rights over said child, or to his property by descent or succession. If the order allowing and cenfirming the adoption shall direct that the name of the child be changed, the child shall be known by the new name designated in such order. His rights of inheritance and succession from his natural parents remain unaffected by such adoption. The foster parent or parents and the person adopted sustain toward each other the legal relation of parent and child, and have all the rights and are subject to all the duties of that relation, including the right of inheritance from each other, except as the same is affected by the provisions of this section in relation to adoption by a stepfather or stepmother, and such right of inheritance extends to the heirs and next of kin of the person adopted, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting, but as respects the passing and limitation over a real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the person adopted is not deemed the child of the foster parent so as to defeat the rights of remaindermen. Amended by L. 1915, ch. 352 and L. 1916, ch. 453. (B., C. & G. Consol. L., 2nd Ed., p. 1943.) The foster parent must bestow parental care on the adopted child, and while the relation of parent and child continues is to be held to all the parental obligations. Matter of Anonymous (1913), 80 Misc. 10, 141 N. Y. Supp. 700. Under the statute relating to adoption, in force since 1896, the legal relations of foster parents and adopted children are the same as those of natural parents and children "including the right of inheritance from each other and such right * * * of inheritance extends to the heirs and next of kin of the minor, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting." Carpenter v. Buffalo General Electric Co. (1914), 213 N. Y. 101. The relation created by adoption is that of parent and child; there is no provision in the statute for the creation of the relation of brother and sister by adoption. Matter of Benson (1917), 99 Misc. 222, 163 N. Y. Supp. 670. The rights of inheritance as between an adopted child, his foster parents and his natural parents must be determined, not by the statute in force at the time of adoption, but by that in force at the time of the death of the child or the parents. United States Trust Co. v. Hoyt (1912), 150 App. Div. 621, 135 N. Y. Supp. 849; Rosekrans v. Rosekrans (1914), 163 App. Div. 730, 148 N. Y. Supp. 954. Hence, a child adopted from a public institu tion in 1894 pursuant to the provisions of chapter 438 of the Laws of 1884, is entitled to inherit from her foster parents where they died subsequent to the date on which the Domestic Relations Law took effect. Where the foster parents of such a child die without issue she is their sole next of kin under the Statute of Distribution, and under a deed of trust which left property to her foster parents for life, and on their death without issue to the next of kin of her foster father, she is entitled to the entire remainder, to the exclusion of his collateral relatives. This is so notwithstanding the limitation in this section. United States Trust Co. v. Hoyt (1912), 150 App. Div. 621, 135 N. Y. Supp. 849. Where the statute in force at the time an adopted child was killed by negligence cut off the rights of inheritance and succession of his natural parents and transferred those rights to the foster parent, the moneys recovered for his death should be distributed among his foster parent's next of kin, she having died before the decedent who left no wife or children. Carpenter v. Buffalo General Electric Co. (1913), 155 App. Div. 655, 140 N. Y. Supp. 559, affd., 213 N. Y. 101. The right of a half-sister of a decedent who died intestate to share in his estate is not lost by reason of her legal adoption by a stranger in whose family she lived until her marriage. Matter of Landers (1917), 100 Misc. 635, 166 N. Y. Supp. 1036. There is no provision which entitles the adopted child to inherit from the collateral relatives of the foster parent. Matter of Ben son (1917), 99 Misc. 222, 163 N. Y. Supp. 670. An adopted child of a testator is given a status of inheritance equivalent to that of a child born to the testator, with the exceptions prescribed in section 114 of the Domestic Relations Law. Bourne v. Dorney (1918), 184 App. Div. 476. ADVERTISEMENT, FORECLOSURE BY. See FORECLOSURE BY ADVERTISEMENT. |