I dissent only insofar as this
court would reverse the order denying leave to the defendants to amend their answers and insofar as the court would grant leave to amend. I would affirm all orders appealed from without leave to amend. It is clear as held by the majority that the intent of the settlor cannot be gathered from the facts that took place after his death, and also that if he intended to include adopted children, that intent would not be changed by the circumstances surrounding the particular adoption. Upon that basis, however, I would hold that the conduct and motives of the petitioner in the adoption proceedings are entirely immaterial.
Where an adoption is in all respects legally effected and confirmed by a decree of a court of competent jurisdiction, the rights of the adopted child should depend solely upon the provisions of the statute and of any relevant instruments, the latter to be construed according to the intent of the settlor or testator.
It is true, as it is said, that the particular provisions of the statute for protection of the rights of remaindermen in case of an adoption (now fourth paragraph of section 117 of the Domestic Relations Law) were enacted for the purpose of *137guarding against the perpetration of a fraud (see Matter of Upjohn, 304 N. Y. 366, 378). It would appear that the fraud which the statute was designed to prevent is the fraud ipso facto which would otherwise result in the cutting off of a remainder by an adoption. The statute is to be construed and given effect with this legislative purpose in mind. The legislative motivation in this connection is not, however, equivalent to legislative direction for the probing into the motives of the parties to a particular adoption. The statute was intended to be self-operative in accordance with its terms; and, subject only to the intent of the settlor or testator, the terms of the statute are to be given effect whenever the rights of remaindermen are involved. In my opinion, neither the statute nor the decisions authorize an inquiry in every or any case to determine whether or not the foster parents in effecting the adoption fraudulently acted with a design to thwart the purposes of a settlor or testator.
As long as the adoption stands, and absent the element of estoppel, the rights of the adopted child under the statute and by virtue of any instrument are not to be defeated by any alleged fraud in the adoption proceedings short of such fraud as would subject the adoption to invalidation on collateral attack. Here, as I understand, it is conceded that the adoptions are not subject to collateral attack. And the doctrine of estoppel may not work against the minor children involved here to deprive them of their rights under the valid adoptions. Therefore, I would hold that it would serve no purpose here and would, in fact, be contrary to public policy to permit a collateral inquiry as to motives underlying the adoptions.
Bbeitel, J. P., McNally and Stevens, JJ., concur with Steueb, J.; Eageb, J., dissents in part in opinion.
Order, entered on April 28, 1961, insofar as appealed from, striking the allegations in the answers of the charities and dismissing as academic the guardian ad litem’s motion to strike as sham, unanimously affirmed, on the law, with costs to all parties filing briefs, payable out of the trust.
Order, entered on April 28, 1961, denying the motion of Lincoln Center for the Performing Arts, Inc., Bennett College and Juilliard School of Music to amend their answer, reversed, on the law and as a matter of discretion, and leave to amend granted.