
    Joseph W. Merchant and Others, Respondents, v. Nettie M. White, Appellant.
    
      Insurance—payable to heirs at law—a child taken into the family is not included therein.
    
    A child, taken into a family and brought up therein as a child of the family without a formal adoption, is not entitled to share in the proceeds of an insurance policy issued upon the life of her foster father and payable to his heirs at law.
    Appeal by the defendant, Nettie M. White, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the loth day of March, 1902, upon the decision of the court rendered after a trial before the court without a jury.
    This action was originally brought by the plaintiffs, who are the heirs at law of Morris R. Merchant, who died intestate in 1900, against the North Western Mutual Life Insurance Company, to recover upon a policy of insurance issued upon the 8th day of April, 1865, insuring the life of the said Morris R. Merchant for the sum of $5,000. The policy recites that it is in consideration of $140.40 to them in hand paid by Mary A. Merchant, wife of Morris R. Merchant, and that it is for the sole use of the said Mary A. Merchant. The covenant is to pay to her, or, if she should be dead before the death of Morris R. Merchant, that the amount of the insurance should be paid to the heirs at law of the said Morris R. Merchant. Mary A. Merchant, the wife of Morris R. Merchant, died in 1887. This defendant also made claim to the proceeds of the said insurance policy, claiming both as an adopted child of the .said Morris R. Merchant and also by reason of a contract claimed to have been made by the said Morris R. Merchant with her mother, ■at which time Morris R. Merchant was given the custody and services of said child; and it is claimed that in consideration thereof he agreed to treat her as his own child and to make her his heir. By an order, the moneys were paid into court and the defendant was interpleaded, and the action was brought to trial upon supplemental pleadings alleging the different claims of the plaintiff and the defendant to the said moneys. Further facts appear in the opinion.
    
      II. D. Messenger, for the appellant.
    
      T. B. Merehcmt and L. M. Merehcmt, for the respondents.
   Smith, J.:

The court below has impliedly found that when Morris R. Merchant took the appellant to his home, he made no agreement by which he was to make her his heir or to give her any or all of his property. The only evidence of the agreement itself, aside from the declarations of Morris R. Merchant, is found in the evidence of Anna Smith and Major Smith, her husband, an aunt and uncle of the appellant, who swear to the details of a conversation occurring thirty years prior to the trial. It is hardly possible that the terms of such an agreement can be so long remembered or anything more be retained than an impression of what were to be the relations between Morris R. Merchant and this appellant. The agreement is claimed to have been made with the mother, while the father was still living. It is not claimed that he gave any assent thereto at that time. The mother died in 1871. In 1873 the father signed a paper which consists of a transfer to Morris R. Merchant of the custody, tuition and services of the appellant during the term of her minority, and an authorization to change the appellant’s name so that she may bear his name. Both the claimed contract of adoption and this transfer by the appellant’s father were made before there was any statute in this State authorizing the adoption of a child. It is true that an agreement by Merchant to make the child his heir, although verbally made, might be valid, and it would be no objection that such was not contained in the instrument of transfer signed by the father. The fact, however, that the instrument of transfer signed by the father recited by that it was upon consideration of one dollar, and made no reference to this claimed agreement on the part of Merchant to make the appellant his heir, is some evidence against the making of such an agreement, and the fact that the transfer should continue during the minority of the appellant is further evidence that there was no intention of establishing a permanent relation of father and child as between Merchant and the child. Merchant’s wife, who was then living, does not seem to have assented or in any way agreed to become a party to any adoption. By the Adoption Act of 1873 (Chap. 830, § 3), thereafter enacted, it was provided that a married man, not lawfully separated from his wife, could not adopt a child without the consent of his wife. There is further evidence by the witness Killeen and the witness Weaver of declarations of Morris R. Merchant as to his intentions to make the appellant his heir. Upon this question our minds are not entirely free from doubt. But appellant must establish such an agreement by a preponderance of evidence. The trial court has found the fact against her. A reversal of that finding is not warranted by the evidence.

It is not claimed that the appellant was formally adopted by Morris R. Merchant so as to come within the strict definition of a legal heir. While she assumed the name of Merchant, and was brought up in the family as a child, we are referred to no authorities which hold those facts sufficient to give her the status of a legal heir, even in the interpretation of insurance policies made for the benefit of families. Such contracts are given a liberal interpretation to secure the purpose of the insurance as a provision for the support and maintenance of a family. When, however, the contract of insurance makes the amount payable to the legal heirs of the assured, it would be doing violence to the contract rights of such heirs to interpret the policy for the benefit of a child taken into a family and brought up as such without a formal adoption by which alone the appellant could have been made the heir of the insured. We have carefully examined the very able brief of the appellant’s counsel, which, as we deem, falls just short of establishing the appellant’s rights either upon the law or the facts. We think the judgment should, therefore, be affirmed.

Judgment unanimously affirmed, with costs.  