
    Mary E. Carroll, Respondent, v. Thomas Collins, Appellant.
    
      Adoption — an adoption, prior to the statutory provision therefor, game no right of inheritance—proceedings for probate of heirship, when not presumptive evidence in an action of ejectment—an amendment on the trial bringing in a new cause of action, not permitted.
    
    The adoption of children was unknown to the common law of England and exists in the States of the Union solely by virtue of statute.
    Prior to the passage of chapter 830 of the Laws of 1873, the first act passed in this State relative to the adoption of children, there was no general method of adoption which gave a child a right of inheritance, although some special statutes then existed which authorized particular charitable institutions in this State to place children committed to their care with persons who consented to take the children by adoption.
    The provisions of.section 13 of chapter 830 of the Laws of 1873, declaring that “ Nothing herein contained shall prevent proof of the adoption of any child heretofore made, according to any method practiced in this State, from being received in evidence, nor such adoption from having the effect of an adoption hereunder,” apply only to prior adoptions which were authorized by some special statute at the time when they were made, and have no application to a method of adoption not authorized by any statute.
    Where it clearly appears that a child was attempted to be adopted by a method, not authorized by law, proceedings taken in a Surrogate’s Court for the probate of heirship to establish her right of inheritance, are not presumptive evidence in her behalf of her right to inherit, in an action subsequently brought by her to recover possession of thereat estate of which her alleged ancestor by adoption was seized.
    Where the plaintiff in such an action claims merely as an adopted child, it is erroneous for the court, upon the trial of the action, to permit an amendment of the complaint alleging an agreement to adopt by virtue of which the plaintiff became the owner of the land in controversy, since such an amendment either changes the cause of action or adds a new cause of action.
    Appeal by the defendant, Thomas Collins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 16th day of December, 1895, upon the decision of the court rendered in an action of ejectment after a trial at the Westchester Circuit before the court without a jury.
    
      J. W. Bartram, for the appellant.
    
      Jesse Stearns, for the respondent.
   Willard Bartlett, J. :

The plaintiff sued as the adopted child and heir of Elizabeth Carroll, deceased, to recover possession of certain real estate in Westchester county, of which Elizabeth Carroll died seized, and which her surviving husband, the defendant, Thomas Collins, now claims to own. The complaint alleged that the plaintiff was lawfully adopted by John Carroll and Elizabeth, his wife, in the year 1850, at Yan Courtlandt Park in the city of New York; that the said John Carroll died in the year 1886; that thereafter the said Elizabeth Carroll married the defendant, Thomas Collins, and that subsequently and in the year 1893 the said Elizabeth Collins (formerly Carroll) died intestate, seized of the real estate described in the complaint, and leaving the plaintiff as her sole heir and next of kin. The answer denied the alleged adoption of the plaintiff and the intestacy of the said Elizabeth Carroll (afterwards Collins), and alleged that she left a will devising all her property to the defendant.

Upon the trial it appeared that such a will had been made, but that the Surrogate’s Court of Westchester county had duly adjudged that it was revoked by reason of the marriage of the testatrix after its execution.

The plaintiff was the daughter of John Tracy and Ann Tracy. In 1850, when she was about six years old, her mother, who had ■become a widow, executed an instrument in writing and delivered it to Elizabeth Carroll and John Carroll, her first husband. That instrument is lost. The plaintiff, however, swears to having seen it in the possession of Mrs.' Carroll some ten years, after its execution. She says it was dated December 16, 1850, and was signed by Ann Tracy, John Carroll and Elizabeth Carroll, and witnessed by Augustus Heustis, Escp, a justice of the peace. Her further knowledge of its contents appears to have been derived wholly from the statements of Mr. and Mrs. Carroll concerning the paper When she inquired in regard to its character she says Mrs. Carroll responded: That is the paper we got from your mother that you are our own child; you can never leave us; you are our own child and you take our name.” And again the plaintiff testifies : “ She said my mother gave her by that paper full charge of me to be her child ; that she never could take me • away from her, and to take her name and inherit her property; that was when I was sixteen years old, and I heard her speak of it often after that; I frequently heard her mention that paper; * * * I told all she said to me; by that paper my mother gave me up to her as her own child, and I was to take her name; she very often repeated it to me; till I was twenty years old and to when I was thirty years old.”

The plaintiff took the name of Mary Carroll and has kept it ever since 1850. From that time she seems always to have been treated by Mr. and Mrs. Carroll as their child. She lived with them continuously until she was twenty years old. Then she went out to work and turned over to them her savings, whatever wages' she had left over and above her board and expenses, and continued this practice for a long time until she was about forty-five years old. Mr. Carroll then died and Mrs. Carroll subsequently married the defendant.

Upon this evidence the trial court found that in the year 1850 the plaintiff, then about six years of age, was adopted and made the lawful heir of John Carroll and Elizabeth Carroll, by an instrument in writing sufficient for that purpose, executed by and. between the said John Carroll and Elizabeth Carroll on the one hand, and Ann Tracy, the natural mother of . the plaintiff, on the other, the plaintiff’s natural father having died before that time. The plaintiff was, therefore, declared to be the sole heir of the said Elizabeth Carroll and entitled to recover the property mentioned in the complaint, and judgment was directed in her favor accordingly.

Assuming that precisely such an instrument as that described by the plaintiff was executed and delivered ■ in the year 1850, the question arises whether the law then sanctioned any such adoption, and . if not, whether it has ever been legalized by subsequent legislation.

We think both questions must be answered in the negative.

The adoption of children was unknown to the common law of England, and exists in the States of the Union solely by virtue of statute, (Morrison v. Sessions' Estate, 70 Mich. 297, 305; Ballard v. Ward, 89 Penn. St. 358; Abney v. DeLoach, 84 Ala. 393.) The first general statute on the subject enacted in this State was chapter 830 of the Laws of 1813, which was entitled “An act to legalize the adoption of minor children by adult persons.” It defined adoption as provided for therein to be : “ The legal act whereby an adult person takes a minor into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor.” It prescribed who might adopt children, what consents were necessary and when they might be dispensed with; and provided for the attendance of the parties before a county judge and the execution of the required consents and the agreement of adoption. The last section (§13) declared that “Nothing herein contained shall prevent proof of the adoption of any child heretofore made, according to any method practiced in this State, from being received in evidence, nor such adoption from having the effect of an adoption hereunder.”

This act of 18,13 was amended by chapter 103 of the Laws of 1881 in one respect. The 10th section, as it originally stood, provided that a child when adopted should take the name of the person adopting, and the two thenceforth should 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 as to the limitation over of real and personal property under deeds, wills, devises and trusts. The amendment of 1881 changed the phrase, “ excepting the right of inheritance,” so as to make it read “ [including] the right of inheritance.” Both the act of 1813 and the act of 1881 have been repealed by the new statute in regard to the adoption of children, which was passed by the last legislature as a part of the revision of the general laws of this State and goes into effect on October 1, 1896 (Laws of 1896, chap. 272).

Prior to any of this general legislation, however, various "special statutes had authorized particular charitable institutions in this. State to place children committed to their care with persons who consented to take them by adoption, and in such cases a formal instrument was executed, to express and carry out the intent of the parties. An example of such an enactment'may be found in chapter 244 of. the Laws of 1819, in reference to the American Female Guardian Society, which was considered in a careful and able opinion by Judge Hamilton "Ward of the eighth district in the case of Simmons v. Burrell (8 Misc. Rep. 388). Except under particular statutes of this character, there appears to have been no such thing as an adoption which gave a child any right of inheritance known to "the law of this State, prior to the act of 1873.

The contention of the respondent, however, is that the saving clause above quoted, in section 13 of the act of 1873, so affects all adoptions previously made in any way which had been practiced in this State, whether under the sanction of special statutes or not, as to make all such adoptions equivalent, in-effect, to adoptions under the act of 1873 itself.

While the clause clearly recognizes the existence of prior adoptions of some kind, it seems to us that it applies only to cases of adoption in some form or manner previously practiced under the sanction of law, although different from the mode prescribed by the act of 1873. We think the statutory phrase, “the adoption of any child heretofore made according to any method practiced in this State,” was at most intended to relate only to prior adoptions, which were authorized by‘some law at the time they were made, such, for example, as the special statute of" 1849 in reference to adoptions by the American Female Guardian Society. Independently of such enactments an infant gained no legal rights, as heir or next of kin, by being received into a family and treated as a child of the family. To hold that the proof of such reception and treatment was evidence of. an adoption which the act of 1873 was intended to legalize, would be to introduce a dangerous element of uncertainty into many titles in this State. Ample effect is given to the provision under consideration by limiting it to prior legal adoptions; and as was said by Mr. Justice Cullen at Special Term, in the case of Morrisson v. Morrisson (unreported), no real hardship is occasioned by adopting this rule, “ for it is always in the power of one by his will to take care of any person whom he believes to have a claim on his bounty.”

We have found only three cases in which the effect of section 13 of the act of 1873 has been considered. Hill v. Nye (17 Hun, 457) was decided by the. General Term of the fourth department prior to the amendment of 1887. There it was held that the act of 1873, legalizing adoptions, applied only to such as took place after its passage. As to .the saving clause in section 13, Hardin, J., said that it did not give fresh force and vigor to any adoption that took place prior to the passage of the act. “The statute, in effect, declares that the antecedent adoptions shall not be subtracted from. In so declaring it does not add to the effect which they had antecedent to the enactment of its provisions.”

In Simmons v. Burrell (supra). Ward, J., took a somewhat different view, holding that prior adoptions were legalized by the saving clause and rendered practically the same, in legal effect, as adoptions under the act of 1873, as amended in 1887; but the case before him was that of a child formally adopted in 1861, under the special act already mentioned, incorporating the American Female Guardian Society, and his decision does not deal with the subject of non-statutory adoption at all.

The third case to which we refer is Morrisson v. Morrisson, decided at Special Term in Suffolk county, but not reported, where Mr. Justice Cullen held that the operation of the saving clause of the act of 1873 was restricted to prior adoptions under the charters of charitable societies.

The learned judge before whom the present case was tried seems to have regarded the title of the act of 1873, “ to legalize ” adoptions, as significant of an intent to deal with the past as well as the future; but conceding this, it by no means indicates any intention to legalize all previous adoptions, however informal. What the saving clause did guai’d against, however, was any possible effect which the statute might otherwise have had to- render nugatory previous formal adoptions under special laws!

There are some serious questions in this record in regard to the admissibility of evidence, but our conclusion upon the main question renders it unnecessary to discuss them. The plaintiff took proceedings for the probate of heirship under the Code of Civil Procedure (§§ 2654-2659) to establish her right of inheritance as an adopted child to the property described in the complaint; and it is insisted that the record of the proceedings constitute presumptive evidence in her behalf in this action which must prevail, inasmuch as no proof was introduced to rebut it. It is clear, however, that no such effect can be given to the decree of the surrogate in this matter in view of the explicit proof on the part of the plaintiff herself as to the specific facts constituting the alleged adoption. That proof showed, as matter of law, if we are right in our main conclusion, that she had not been so adopted as to become entitled to inherit. The complaint was amended, at the end of the trial, so as to set out not only an adoption of the plaintiff by Elizabeth Carroll, but an agreement to adopt, by virtue of which the plaintiff became the owner of the land in controversy ; and it is argued that the plaintiff is entitled to prevail under this amendment if not upon the theory of an actual adoption. But the amendment was one which should not have been granted on the trial, against the exception of the defendant, inasmuch as it changed the cause of action or added a new cause of action, and, furthermore, there is no finding by the trial court on the subject of. the alleged agreement, as distinguished from the alleged actual adoption.

The judgment must be reversed and a new trial granted, costs to abide the event.'

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  