Madeleine H. MacRae was the daughter of the appellant, Charles H. MacRae. She was born March 23d 1895. After her mother's death and on October 12th, 1897, with the consent of her father, the appellant, said Madeleine was regularly adopted by her paternal grandparents, Charles H. MacRae and Mary J. MacRae. She lived with her foster parents until the death of the survivor, Mary J. MacRae, who deceased in June, 1905. Said Mary left a will by which she appointed Elizabeth P. Rogers, one of the respondents herein and the maternal grandmother of Madeleine, as her guardian. On January 12th, 1906, on the petition of Mrs. Rogers, the guardian with whom Madeleine then resided, an order was made granting the adoption of said infant to her said guardian, Mrs. Rogers, and the husband of the latter by a second marriage and not the grandfather of the infant. Madeleine, at the time of this adoption, was less than ten years of age, and hence there was no consent from her and no notice of the proceeding was given to the appellant, her natural father.
Madeleine died on April 12th, 1906, possessed of an estate of about $9,000. Thereafter the respondent James H. Rogers, as the foster father of said infant, took out letters of administration upon her estate. Subsequently the appellant, her natural father, applied to the surrogate to vacate the second order of adoption on the ground that it was made *Page 150 without consent by or notice to him. The application was denied and the Appellate Division has affirmed the order of the surrogate. From the order of the Appellate Division this appeal is taken.
The controversy presents questions of great importance, not on account of the amount here involved, but as suggesting the possibility of affecting the right of succession to estates of very great value by the method of adopting children. Undoubtedly our statute on the subject deserves careful scrutiny and revision by the legislature, as its provisions afford not only an ample field for litigation, but for the commission of much wrong. The only question, however, presented for determination in the present case is the necessity for consent by and notice to the natural father of the child to authorize the second order of adoption. The subject is regulated by article 6 of the Domestic Relations Law (L. 1895, ch. 372). By section 61 of that statute consent to adoption must be obtained of the following persons: "1. Of the minor, if over twelve years of age (not applicable to this case); 2. Of the foster parents husband or wife, unless lawfully separated, or unless they jointly adopt such minor; 3. Of the parents or surviving parent of a legitimate child, * * * but the consent of a parent who has abandoned the child, or is deprived of civil rights, or divorced because of his or her adultery or cruelty, or adjudged to be insane, or to be an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, is unnecessary." Under this provision standing alone it is quite plain that the parents' consent is requisite to the validity of the second order of adoption. But it is contended that under the subsequent provisions of the statute the parent on the first adoption ceased to be her parent, and also that he thereupon abandoned his child. Section 64 defines the effect of adoption: "Thereafter the parents of the minor are relieved from all parental duties toward, and all responsibility for, and have no rights over such child, or to his property by descent or succession. * * * The child takes the name of the foster parent. His rights of inheritance and *Page 151 succession from his natural parents remain unaffected by such adoption. The foster parent or parents and the minor 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, * * * 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, but as respects the passing and limitation over of real and personal property, dependent under the provisions of any instrument on the foster parent dying without heirs, the minor is not deemed to be the child of the foster parent so as to defeat the rights of the remainderman." It will be seen that both in this and in the other sections of the statute the distinction of nomenclature is uniformly observed. The true parent is termed the parent, while the adopting one is termed the foster parent. It is aptly said in Commonwealth v. Nancrede (32 Pa. 389): "Giving an adopted son a right to inheritance does not make him a son in fact." Equally, imposing on the foster parent the obligations and responsibilities of a parent does not make him a parent in fact. The statute does not wholly dissever the relations between the adopted child and his real parents. On the contrary, it expressly provides that "His rights (those of the child) of inheritance and succession from his natural parents remain unaffected by such adoption." Thus, under a similar statutory provision it has been held in Iowa that children adopted by the maternal grandfather were entitled, on his death, after that of the mother, to the mother's share by representation in addition to their share as children by adoption. (Wagner v. Varner, 50 Iowa 532.) Moreover, by section 66, provision is made for the abrogation, in a proper case, of an act of adoption, where it is desired by all parties concerned, including those whose consent was necessary to the adoption. Thus there remains in the natural parent what, for lack of a better name, I may call a possibility of reversion. In the present case, though the father cannot succeed to the whole estate of which his child died intestate, *Page 152 by virtue of the adoption by his own parents, he became one of the next of kin and would be entitled to a brother's share. Nor can the omission to give notice to the father be justified on the theory of abandonment. First, because securing the care and support of the child by proper persons was not an abandonment (Luppie v. Winans, 37 N.J. Eq. 245), and in the second place, because he was entitled to a notice and hearing on that very question, whether he had or not abandoned the child. (Humphrey,Appellant, 137 Mass. 84.)
It seems to us that every argument of policy is in favor of so construing the statute as to require notice of the proposed adoption to be given to every person whose interest may be affected by the adoption, so far as the statute will reasonably permit of that construction. Where no one living is entitled to assert parental rights over the child, the person who has the lawful custody may, as guardian (and it may also be that such form of authority is unnecessary to constitute legal custody), as in this case, without the consent of the child itself, by an exparte application to the surrogate or county judge, obtain an order of adoption and secure the right to inherit as against those who would otherwise be entitled to succeed to the child's estate. This, in the case of a sickly child possessed of a large fortune, might prove extremely profitable. In this case the infant, then in ill-health, was adopted in January and died in April of the same year. The statute has apparently opened a new field of industry. The act, even as we construe it in this case, protects only the rights of living parents, and we venture to suggest that it should be so amended that in the case of an infant having an estate, notice should be given to all of the next of kin who, if the child should die at the time intestate, would be entitled to its estate.
The order appealed from should be reversed and the motion granted, with costs in all courts.
EDWARD T. BARTLETT, WERNER and HISCOCK, JJ., concur with CHASE, J.; O'BRIEN and HAIGHT, JJ., concur with CULLEN, Ch. J.
Order affirmed. *Page 153