(dissenting):
Accepting the .statement of facts as narrated in the prevailing opinion in this cause, I am unable to concur in the conclusion at. which the majority of my brethren have arrived that the' interlocutory judgment should be reversed.
■ I think there are vested remainders in the surviving brothers of Mrs. Frances J..Thomas (Dyett), but as that seems to be debatable ' I prefer to place my dissent upon- the ground that the statutes relating to adopted children do not apply to 'the trust deed made and delivered by Eliza Hunt, the grantor, or creator of the trust, in -1853. The terms of that trust are specifically for the use and ' benefit of" Frances J. Thomas (Dyett) during her natural life, and after her decease the trust property to pass to her heirs at law. When the instrument was made and delivered,-adoption of children with consequent rights of inheritance in them was unknown to the law of Hew York. (Matter of Thorne, 155 N. Y. 140; Smith v. Allen, 161 id. 482.). The first statute relating to adoption was' passed in this State in 1873 (Laws of 1873, chap. 830), twenty years, after the deed in question was made. Its sole purpose was to establish a mu tual relation of parent and child between the person adopting and the one adopted, but rights of inheritance were specifically excluded.' Subsequent statutes in pari materia-will be hereinafter referred to. This plaintiff was adopted "in 1883. It seems to me that in construing the trust deed we must have regard to the intention of the testator at the time it was executed and the-trust created. The words “ heirs at law ” at that time had a definite legal meaning. They then meant kindred by blood and no others. They did not relate to a stranger to the blood, family and kindred, made an heir byz a legal proceeding which the creator of the trust could never have imagined nor anticipated. .“The Word £heir,’ in legal understanding, signifies him to whom lands, tenements, or hereditaments, by act of God and right of blood, descend, of some estate of inheritance.” (Broom Leg. Max. [6th Am. ed.] 381; 3 Washb. Real Prop. [5th ed.] 6.) “The word ‘heirs’ is a legal term.having a definite meaning, and expresses the relation of persons to a deceased ancestor and not to a living.” (Cushman v. Horton, 59 N. Y. 151.) ,“The primary meaning in the law of the Word ‘heirs’ is the persons related to one’ by blood, who would take his real estate if he *667died intestate, and the word' embraces no one not thus related.” (Tillman v. Davis, 95 N. Y. 24.) Such was the meaning of the words in this trust deed when the trust was created, and a testator (and so of a grantor) is always presumed to use the words in which he expresses himself according to their strict and primary acceptation, unless, from the context of the. instrument, it appears that he has used them in a different sense. (Luce v. Dunham, 69 N. Y. 39; Tillman v. Davis, 95 id. 24; Murdock v. Ward, 67 id. 389; Keteltas v. Keteltas, 72 id. 312; Cushman v. Horton, 59 id. 149.)
If my understanding of the intention of the creator of the - trust is correct, then it is evident that she had in contemplation that kindred in blood of the beneficiary — those who would be such at the death of the beneficiary — were to take the interest in remainder after the expiration of the trustee’s estate. Upon an examination of the statutes passed after 1873, relating to the subject of the adoption of children, I am of the opinion that the intention of the creator of the trust is not to be thwarted or defeated. It must be conceded that so far as succession to the property, real and personal, of the adopting parent is concerned, the adopted child sustains the relation of heir, and that such relation, with its incidents, is established as of the time of the death of the parent, and not in accordance with the law as it existed at the time of the adoption, so that if at the time of the adoption the statute did not confer the right of inheritance, but did at the time of the death of 'the parent, the adopted child would take. (Theobald v. Smith, 103 App. Div. 200; Dodin v. Dodin, 16 id. 45; affd., 162 N. Y. 635.)
We have seen that by the statute of 1873 the right of inheritance was not given to the adopted child. In 1887, by chapter 703 of the laws of that year, the act,of 1873 was amended and the relation of parent and child was constituted, including the right of inheritance, except that as respects the passin'g and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the adopted child was not deemed the child of the foster parent so as to defeat the rights of remaindermen. It is a fair construction of this statute that its intent was to give the adopted child rights in property passing under deeds, wills, devises and trusts, except in the particular instance where the passing or limitation over of the property was *668dependent upon the-person adopting dying without heirs. Butin 1896 a change was again made in the law. (Laws of 1896, chap. 272, §60.) By that section it is provided as follows: “Nothing in this article* in regard to- aff adopted child inheriting from the .foster parent applies to any will,' devise or'trust made or created before Juné twenty-fifth, eighteen hundred and seventy-three, or alters, changes or interferes with such will, devise or trust, and- as. to any such will, devise or trust, a child adopted before that date is not an heir so as to alter estates or trusts or devises in wills so made or created.” The effect-of section 60 is, so far as it relates to-trusts of property created .before June 25, 1873, to put an adopted child back in the same position it would have occupied under the act of 1873, namely, to deny to it the right of inheritance as to such property. I cannot assent to the proposition that section 60 is inapplicable -here'because the trust ceased at the death of the-beneficiary. When the? trust chased whoever was entitled to the remainder would take under the trust deed and would. not take from the beneficiary. Sharman v. Jackson (98 App. Div. 187) is authority only for the proposition that -the trust ceased on the death of Mrs. Thomas (Dyett). I think one of the purposes of section 60 was -to prevent an adopted child as heir of the adopting parent from taking property “ so as .to alter estates or trusts or devises ” made or created prior to June 25,1873. " It seems to me that allowing the plaintiff to take realty, as' an heir at- law of the beneficiary of the trust, would radically change the provisions of the trust deed if I am right in "the interpretation given to the words “ heirs at law ” in that trust deed as evincing the intern " tion of the grantor at the time the-trust was created.' I think the .statutes of adoption should not be construed so- as. to defeat the intention of the creator of a trust and divert his property from that line of suc- ' cession in which he declared it should go and bestow it upon absolute strangers whom he never intended to be the recipients of his bounty.
The judgment should be affirmed, with costs.
Laughlib,'J., "concurred.
. Judgment reversed, with costs, and demurrer sustained, with hosts,with leave" to defendants to withdraw demurrer and to answer on payment of costs in this court and in the court below.
Dom. Rel. Law, art. 6.— [Rep.