On February 15, 1886, Charles W. Alexander, of Richmond county, made a will leaving all his property to his wife. The deceased, however, on December 20, 1897, in conjunction with his wife, under the statutes of this State, had adopted his granddaughter, Cecilia, plaintiff herein, who had been born on June 28, 1892, and her sister, Lauretta (Lauretta predeceased the testator, intestate and without issue.)
The plaintiff, Cecilia, was unprovided for in the will, which remained unchanged until Mr. Alexander’s death on January 8, 1907. His will was probated in the Surrogate’s Court of Richmond county on February 18, 1907. The widow, Catherine, held under said will until her death, August 27, 1916, and the plaintiff lived there with her grandmother. Catherine left a will, executed September 27, 1915, in which she created a trust in favor of plaintiff, the trustee to pay her the income for life, less $4 monthly to the testatrix’s sister. From the principal, $5,000 was to go to plaintiff at the age of thirty, and $5,000 additional at the age of thirty-five.
Plaintiff brought this action to quiet her title to this joint residence property in Middletown, Richmond county, claiming as sole heir at law of Charles W. Alexander, notwithstanding his prior will of 1886. The Special Term, however, found that by such adoption plaintiff “ acquired no rights in the estate of said Charles W. Alexander, deceased, under section 26 of the Decedent Estate Law of the State of New York.”
Appellant’s contention is that in our Decedent Estate Law (Consol. Laws, chap. 13 [Laws of 1909, chap. 18], § 26) the term “ shall have a child bom,” which comes from the Revised Statutes (Pt. 2, chap. 6, tit. 1, art. 3, § 49), where the conditions are “ shall have a child bom after the making of his will, either in his life-time or after his death ” (2 R. S. [2d *487ed.] 9, § 49), may be construed so as to be read, “ or adopt a child.” This could not have been within the purpose of the Legislature, because neither at the time of the Revised Statutes, nor in 1869, when the present provision was enacted (2 R. S. 65, § 49, as amd. by Laws of 1869, chap. 22), was such thing as legal adoption known in this State, and such statute had no reference to conditions created by later legislation. (Cotheal v. Cotheal, 40 N. Y. 405.) This statute for after-born children has been declared by Gray, J., as “ based upon the strong presumption of an oversight, or an unintentional neglect of the'testator to provide for those who have a natural and moral claim to a provision for their support out of their father’s property. It was not intended to contravene the policy of our law to give to every one, competent to make a will, the right absolutely to control the disposition of his estate.” (Tavshanjian v. Abbott, 200 N. Y. 374, 378.)
Our adoption statute, as amended by Laws of 1887, chapter 703 (Dom. Rel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], § 114, as amd. by Laws of 1915, chap. 352, and Laws of 1916, chap. 453), declares its legal effects and consequences as to succession with peculiar care. It touches succession by intestacy only. The wording applicable here is: “ 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 in 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 such adoption is not to affect a limitation over of property under any instrument by which it passes on the foster parent dying without heirs. In that case “ the person adopted is not deemed the child of the foster parent so as to defeat the rights of remaindermen.”
It was held that our Collateral Inheritance Tax Law (Laws of 1885, chap. 483), giving exemption to “ lineal descendants born in lawful wedlock ” did not embrace an adopted child, *488(Matter of Miller, 110 N. Y. 216.) Judge Danforth adverted to the argument that such adoption and maintenance brought this beneficiary within the reason and equity of this statute. “ But,” he said, “ if that be so, it constitutes no reason for controlling its language, although it might seem that the Legislature would have provided for such a case had their attention been directed to it.” (p. 222.) The same rule was laid down in Commonwealth v. Nancrede (32 Penn. St. 389).
Here are two matters, viz., adoption of persons, and revocation of wills, which are purely statutory; certainly this is true of wills of land. The terms and conditions of revocation are plainly laid down. (Decedent Estate Law, § 34.) The statute, and not a doctrine of implied revocation, now controls. (Matter of Davis, 105 App. Div. 221; affd., 182 N. Y. 468.) I cannot assent to enlarge the terms of such statute, and by our judge-made ruling put such an extension into the adoption statute or the Statute of Wills. Indeed, the sounder rule would be that such a statute that changes the general course of descents, and would ignore merit on account of blood, should be strictly construed. (Upson v. Noble, 35 Ohio St. 655, 656.)
The prevailing United States rule is thus stated: “ The laws permitting the adoption of children confer on them simply the ordinary rights of inheritance, and do not affect the power of the adoptive parent to dispose of his property by will, even though the will was made prior to the adoption.” (1 Cyc. 930.)
As already stated, the theory of constructive intestacy as to after-born issue is from the idea of repairing an oversight. In our system of testamentary freedom, the law recognizes no controlling duty to provide for any child whether natural or adopted. Certain western States, influenced by the continental idea of restricting testamentary power to a fixed proportion of the estate, have extended this view towards persons adopted. But this never was our law.
After-born children may come into being after the testator’s death or when he may be no longer able to make a will. But in the case of formal adoption, the ceremonial itself reminds the foster parent of his new responsibilities. Furthermore, our present adoption statute allows the fiction *489of the relation between a young foster parent and an elderly adoptee, since now the aged beneficiary assumes the relation of “ child ” to the junior foster parent. This is the Roman doctrine of adrogation.
It is safer to follow the Supreme Court of Pennsylvania, that “ an adoption does not make the person adopted a child of the adopter and the act of assembly could not make him such. The person adopted only becomes a child and heir of the person adopting him as to rights of inheritance and the mutual duties and obligations imposed by law * * *.
The Act of 1855 has not the effect to put an adopted child in all respects in the relation of a child in fact.” (Goldstein v. Hammell, 236 Penn. St. 305, 309.)
The statute allowing natural children to take legacies that would otherwise lapse is not extended to adopted persons. (40 Cyc. 1938.) Also such adopted child has not the right to administer upon the estate. (Smith’s Estate, 225 Penn. St. 630.)
This precise point, that adoption does not revoke a prior will, has been often decided. (Davis v. Fogle, 124 Ind. 41; Davis v. King, 89 N. C. 441; Matter of Comassi, 107 Cal. 1; Russell v. Russell, 84 Ala. 48.) In New York the profession have followed Matter of Gregory (15 Misc. Rep. 407).
The contrary decisions ignore a vital distinction. In this, and most States, adoption statutes refer solely to intestate succession, where, in the absence of any will, such adopted person may logically be included as an heir. Foster parents and those adopted gain reciprocal rights of inheritance. When the Legislature omits from such statement of the effects of adoption the topic of wills, including revoking thereof, how cari we say that the foster child is a natural child so as to overturn the will?
As far as the wording of the adoption statutes go, the one adopted, if an adult, has, on his side, conferred upon the adopter rights to inherit from the one adopted. Would this revoke or modify a prior will of the adult person adopted — a result equally equitable, now that adoption extends to all ages regardless of any disparity!
If such effects are to follow as to wills, the Legislature should so provide. To rewrite this statute, in this manner, *490is not for the court, where such ruling may unsettle titles and overturn accepted rules of property relied on for over thirty years. On the other hand, a change made by the Legislature can be guarded against retroactive harm, and go into effect with full notice to the public, so as not to disturb vested rights.
Hence I recommend to affirm.
Blackmar, J., concurred.
Judgment reversed, with costs to the plaintiff, and judgment directed for plaintiff for the relief demanded in the complaint, and her proposed findings of fact 9, 10, 11, 12, 13, 17 and 19, and all the proposed conclusions of law, except the 6th, are found. Findings of fact 11 and 13, and all the conclusions of law as found by the trial court, are reversed. Order to be settled before Mr. Justice Thomas.