The question here presented is whether adopted children of a life beneficiary under a testamentary trust in the will of Anna Livingston Morton take the remainder *37as “ heirs at law and next of kin ” of said life tenant, or whether such remainder passes to her collateral relatives.
The testatrix died August 14, 1918, a resident of the District of Columbia, where her will, made January 15, 1916, and two codicils, executed July 8,1916, were duly admitted to probate. Mary Morton, a daughter, was made the life beneficiary in one-fourth of the residuary estate, which included New York real property.
The will, so far as material, provided: “ and upon the death of such child, I give, devise and bequeath her said share, to be equally divided among her issue, if any, living at her death, in equal shares, per stirpes and not per capita, and in default of such issue, to and among her heirs at law and next of kin, to be equally divided among them per stirpes and not per capita, subject, however, to the execution by my said child of the following powers hereby conferred upon her.”
Mary Morton died April 20, 1932, a resident of Pennsylvania. She was unmarried and left no children of her body. She left surviving her two sisters and children of a deceased sister. They claim to be the heirs at law and next of kin within the meaning of her mother’s will, and Special Term has so found.
Contesting their claim are Lewis Peter Morton, adopted by Mary Morton in Pennsylvania, June 17,1925, and Miriam Morton, likewise adopted January 10, 1930. Another child, William Hazlett Minor, Jr. (formerly William Hayes Morton), adopted by Mary Morton in Pennsylvania, November 21, 1927, is also a contestant. He had been formally relinquished to a California institution for the purpose of adoption, on February 20, 1930, by William Hazlett Minor and his wife, residents of California.
Under a power of appointment in her mother’s will, Mary Morton, by will dated May 5, 1930, admitted to probate in New York county November 23, 1932, set up a trust for this last adopted child and by the same power left one-half of the corpus of her trust estate for the benefit of the first two mentioned adopted children.
In our view the adopted children, Lewis Peter Morton and Miriam Morton, are heirs at law and next of kin within the meaning of the will of Anna Livingston Morton. In Gilliam v. Guaranty Trust Co. (186 N. Y. 127) a deed of trust was made for the life of one Frances J. Dyett, and after her decease to her heirs at law. This deed was made in 1853. Thirty years later, and in 1883, the life tenant, Frances J. Dyett, and her husband adopted Anna T. Gilliam, the plaintiff, as their child. The life tenant died in 1905 surviving her husband, but left no descendants *38or issue. It was held that the adopted child came within the terms “ heirs at law; ” that the donor was presumed to have known that lines of inheritance are governed by statute and might change from time to time; and that -under the clause in question his real concern was for the life tenant. Continuing, the court stated that the donor then “ directed generally that it should go to her heirs at law; that is, to the persons whom the law should designate as her heirs when the time arrived. He threw the responsibility of selection upon the law. He took his chances upon the happening of just what did happen ” (p. 138).
Again, in United States Trust Co. v. Hoyt (150 App. Div. 621), a deed of trust was made to husband and wife for life and, upon their death without issue, to the husband’s next of kin. This court held that an adopted child took the entire remainder to the exclusion of the collateral relatives of the husband.
Matter of Leask (197 N. Y. 193) is readily distinguishable. There a life estate was given by a testator to his nephew for life and upon his death leaving a child or children him surviving, the principal was to go to them. It was further provided, however, that in the event the testator’s nephew left no children surviving the corpus was to “ revert to and become a part of ” the residuary estate of the uncle. The remainder was not given to the heirs at law, but to the child or children of the life tenant. There was, moreover, a reversion to the residuary estate upon a contingency. Had the adopted child taken, the rights of the remaindermen (those entitled to the residuary estate) would have been defeated. The situation there was covered by section 114 of the Domestic Relations Law, which provides, so far as material, that while foster parents and the adopted child sustain towards each other the legal relation of parent and child with all the rights and duties of such relation, including the right of inheritance from each other, “ as respects the passing and limitation over of 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 the remaindermen.”
In the case before us the adopted children are the ultimate remaindermen. There is no remainder or reversion after they are brought within the purview of heirs at law and next of kin. Section 114 of the Domestic Relations Law, therefore, has no application.
The principle of United States Trust Co. v. Hoyt (supra), moreover, seems to have been recently approved (Matter of Walter, *39270 N. Y. 201). In the case last cited an adopted child of a deceased devisee and legatee was held entitled to take as his child and lineal descendant.
Here, the testatrix, Anna Livingston Morton, as did the donor in Gilliam v. Guaranty Trust Co. (supra), knew that lines of inheritance might change from time to time. She was concerned with her daughter Mary for her life and then her issue, if any. Having made provision for them she otherwise desired that one-half of the corpus should go to whomsoever the law would designate.
“ The only instance in which the adopted child is not deemed to be the child of the foster parent is where future estates may be cut off by such adoption.” (Matter of Horn, 256 N. Y. 294, 297.) As already noted, no future estates were cut off by the adoption here.
We are of opinion also that the infant defendant, William Hazlett Minor, Jr., should share equally with the other two adopted children, though adopted by others, after Mary Morton relinquished all rights. New York real property is here involved, and the law of this jurisdiction is controlling. (Dec. Est. Law, § 47.)
In this State an adopted child inherits from both his natural and foster’ parents. (Dom. Bel. Law, § 114.) If, as already stated, an adopted child has all the rights of a natural child (with the one exception above noted) it would seem to follow that he should inherit from the first adopting parent, as well as from the second. While no authority in this jurisdiction has been cited or called to our attention, this conclusion has been reached elsewhere. (Dreyer v. Schrick, 105 Kan. 495; 185 P. 30; Patterson v. Browning, 146 Ind. 160; 44 N. E. 993; Holmes v. Curl, 189 Iowa, 246; 178 N. W. 406; Matter of Sutton, 161 Minn. 426; 201 N. W. 925.)
It follows, therefore, that the judgment, so far as appealed from, should be reversed, with costs, and judgment entered in favor of the defendants-appellants, with costs.
Untermyer, J., concurs.
Judgment, so far as appealed from, affirmed, with costs.