I am unable to concur in the affirmance of this judgment.
Prior to the enactment of the Domestic Eelations Law (Gfen. Laws, chap. 48; Laws of 1896, chap. 272) there were two systems in force relating to the adoption of children and the rights given to the adopted child differed materially, depending upon the particular statute under which the child was adopted. Those adopted under the provisions of chapter 830 of the Laws of 1873, as amended by chapter 703 of the Laws of 1887, gave to the adopted child the legal relation of a child and all the rights and subject to all the duties of that relation, including the right of inheritance, and undoubtedly if the respondent had been adopted under the provisions of this act she would have been ■ the next of kin of the life tenant. An adoption under the act of 1873, however, only applied to the children whose natural parents had consented to the adoption and whose adoption had been legally authorized by the order of a county judge specified in the act. The other method of adoption was that provided by chapter 438 of the Laws of 1884, which related to the adoption of children from orphan asylums or other institutions for the care of destitute or *634friendless children. The adoption in this case was under an instrument of adoption executed by the institution having the care and custody of the child and by the foster parent which was provided for by section 7 of the act. By section 8 of the act it is provided that each person taking a child by adoption in pursuance of the act is designated as the foster parent of such child, and such foster parent and such child shall, after such adoption, sustain toward 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, • and except that as respects the passing and limiting over of real and personal property under and by deeds, conveyances, wills, devises and trusts, said child so adopted shall not be deemed to sustain the legal relation of child to either of its foster parents.
The record discloses that on the 4th of December, 1894, by an instrument in writing executed by Frank B. Hoyt, the beneficiary for life of the fund in question, and his wife and the Nursery and Child’s Hospital, the said Frank B. Hoyt and Margaretta A. Hoyt, his wife, did, pursuant to section 7 of chapter 438 of the Laws, of 1884, adopt the respondent and become her foster parents. When the respondent was, therefore, adopted by Frank B. Hoyt and his wife she acquired no right of inheritance and by express provision of the statute was not to be deemed to sustain the legal relation as respects the passing and limiting over of real and personal property under and by virtue of deeds, conveyances, wills, devises and trusts. This act, so far as it affected adoption, remained in force unamended by the Legislature down to the time of the passage of the Domestic Relations Law (Laws of 1896, chap. 272), to which attention will be called. Chapter 703 of the Laws of 1887 was an amendment to chapter 830 of the Laws of 1873 and could only affect a child adopted under the provisions of that act.
Prior to the year 1892 commissioners had been appointed for a revision of the General Laws of this State, and by chapter 677 of the Laws of 1892 the first chapter of such general revision known as the General Laws was passed. By section 32 of that act, which was known as the Statutory *635Construction Law, it was provided: “ The provisions of any .chapter of the revision of the general laws, of which this chapter is a part, so far as they are substantially the same as those - of laws existing at the time such chapter takes effect, shall be construed as a continuation of such laws, modified or amended according to the language employed in such provisions, and not as new - enactments. ” This section was amended by chapter 448 of the Laws of 1894 so as to provide : “ The provisions of a law repealing a prior law, which are substantial re-enactments of provisions of the prior law, shall be construed as a continuation of such provisions of such prior law and not as new enactments.” The Domestic Relations Law (Laws of 1896, chap. 272) constituted chapter 48 of the'General Laws, of which chapter 677 of the Laws of 1892 was a part. Article 6 of that statute provided for the adoption of children. It recognized an adoption under the act of 1873 and its amendments as a voluntary adoption, and sections 60, 61, 62, 63 arid 64 of that act re-enacted the provisions of the act of 1873 in relation to such adoptions. By section 64 of that act, which contained substantially the provisions of the act of 1873, it was provided that the foster parent or parents and the minor child 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. (See, also, Laws of 1897, chap. 408, amdg, § 64.) Section 65 of the act provides for the class of adoptions which had been provided for by the act of 1884. It authorizes the adoption of a child from an orphan asylum or charitable institution, and provides that the same shall be effected by the execution of an instrument signed and sealed in the corporate name of such corporation, and signed by the foster parent or parents and each person whose consent is necessary to the adoption, and by the child if over twelve years of age, all of whom should appear before the county judge or surrogate of the county where such foster parents reside and be examined, except that such officers of the charitable institution need not appear, and such judge or surrogate may thereupon make the order of adoption provided for by the article. Tiñere is no provision in this chapter for the rights that either .the foster *636parents or the adopted child sustain toward each other by virtue of this adoption. In the schedule of laws repealed annexed to this chapter a portion of section 5 of chapter’438 of the Laws of 1884, all of section 6, a portion of section I' and all of section 8, and the subsequent sections of the act are repealed.
In view of the repeal of section 8 of chapter 438 of the Laws of 1884, and the failure of the Legislature to re-enact any provision as to the status of. a child adopted from charitable institutions under section 65 of the act, I think the statute could be construed so as to make the provisions of section 64 of the act applicable to an adoption from a charitable institution so far as it affected the right of inheritance from the foster parent; but I do not think we can extend this right of a foster child so as to make such child the heir at law or next of kin of the foster parent so that it could take as remainderman under a deed or will executed by a person other than the foster parent, which contained a remainder over to the children or hens at law and next of kin of the foster parent. Under the Statute of Distributions (Code Oiv. Proc. § 2132; Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. 18], § 98, as amd. by Laws of 1909, chap. 240) a child of a person dying intestate becomes a next of kin because of his relation to the intestate as a child, and a person, therefore, dying intestate leaving children, his children legally occupying that relation to him become his next of kin. It is quite clear that the provisions of section 60 of the Domestic Relations Law of 1896, now section 110 of the Domestic Relations Law of 1909 (Consol. Laws, chap. 14; Laws of 1909, chap. 19), have no application to an adoption under the act of 1884, and the respondent must become next of kin of the life tenant under section 64 of that act, now section " 114 of the Domestic Relations Law of 1909.. The deed in question, which was executed June 1, 1896, provided that upon the death of the grantor’s son Frank R., if his wife should not be living, his trustees should “ divide the principal of said trust fund or the securities in which it may then be invested into as many equal shares as there shall be children of my said son Frank R. then.living, and to pay over to each of such children of my son Frank R. one equal share or portion of said principal. * * * In case there shall be no issue of *637my son Frank E. living at the time of the disposition of the principal as above provided for, then the said principal shall he paid over to and among the persons who are then next of kin of my said son Frank E. in the manner and proportion directed by the laws of the State of New York for the distribution of the estates of persons dying intestate. ” It seems to be conceded that the adopted daughter could not take under this clause as a child of Frank E. and that conclusion is sustained by Matter of Leask (197 N. Y. 193).
The first question presented, it seems to me, is whether this deed of trust contain a limitation over of real or personal property dependent on the foster parent Frank E. “ dying without heirs.” It is difficult to conceive of a phrase more inappropriate than this “dying without heirs.” Certainly anyone who would he next of kin of Frank E. would be his heir; hut I think the only construction that can be given to this provision must he that an adopted child shall not be deemed a child of the foster parent so as to defeat the rights of remaindermen under an instrument by which a remainder over is limited to the heirs or next of kin of the foster parent. Here the court below held, and I understand it to be conceded in the prevailing opinion, that the respondent could not take under the provision of the trust deed which gave the remainder to the children of the life tenant, but it was held by the court below and that is sustained by the prevailing opinion that this adopted child can take as next of kin of the life beneficiary.
In construing this deed of trust we are required to carry out the intention of the donor. She was the mother of Frank, the life beneficiary. She provided that the income of the property should be paid to Frank during his life and upon his death should be divided among his children, making provision for the issue of a deceased child to take the parent’s share, and then she provided that if Frank should die without leaving issue the money should be divided among his next of kin according to the laws of the State of New York. I can find nothing in this instrument to indicate an intention on behalf of the donor that upon the failure of Frank leaving issue of his blood surviving the respondent should take because as an adopted child she would have been his next of kin. If we apply the principle *638stated in the Leash Case (supra) it certainly seems to me that if the adopted child is excluded as a child she is also excluded as a next of kin. And that this construction is in accordance with the limitation contained in section 64 of the Domestic Eelations Law of 1896 (now Dom. Eel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], § 114) sefems to me was expressly determined by Matter of Leask (supra) where (at p. 199) the court said: Under the provision of our statute of adoption which declares that in regard to the limitation over of common property dependent on the foster parent dying without heirs the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen, the- residuary legatees in the present case are to be considered such remaindermen and the' adoption of the appellant by the life tenant is ineffectual to defeat their right to take. * * * The term- remaindermen ’ in the statute of adoption was evidently employed by the Legislature in the broad sense of those who might ultimately be entitled to take the estate, whether they were technically remaindermen under the definition of the common law or otherwise. To allow the claim of the appellant to defeat their rights would be to disregard the plain declaration of our statute in regard to the effect of adoption.” And the court cites with approval the opinion of Cullen, J., now chief judge of the Court of Appeals, in Dodin v. Dodin (16 App. Div. 42), when he doubted whether a testator really intended that his adopted child should take even under a residuary clause which directed that the residuum of the estate should descend and be distributed according to the laws of the State of New York. He declared that the test was not what the status of' the adopted child is at law, but how such child is treated in the nomenclature of vocabulary of the testator. Applying that test in .the present case We find it impossible to believe that when Hudson Hoagland spoke of his nephew leaving a child or children surviving him, he could have had an adopted child or children in contemplation.” These decisions, it seems to me, construe this provision of the Domestic Eelations Law as preventing an adopted child, certainly under the Domestic Eelations Law of 1896, now section 114 of the Domestic Eelations Law of 1909, from taking either" as *639child, issue, heir at law or next of kin of a person to whom was given a life estate when there was a remainder over to heirs at law or next of kin. This is based upon the assumed intention óf the testator, donor or grantor in the instrument creating the remainder over as excluding an adopted child of the life beneficiary in connection with the statute which provides that such an adopted child shall not be deemed the child of the foster parent so as to defeat the rights of remaindermen.
It follows, therefore, that the judgment should be reversed.
Judgment affirmed, with costs to both appellants and respondent payable out of the fund.