
    Margaret E. Carpenter, as Administratrix, etc., of Frank L. Carpenter, Deceased, Respondent, v. Buffalo General Electric Company, Appellant.
    Fourth Department,
    March 5, 1913.
    Action for death caused by negligence — persons entitled to share in recovery — parent and child — adoption — distribution of moneys recovered for death of adopted child — what statute governs — next of kin of foster parents entitled to distribution—rights of natural parent who is also next of kin of deceased foster parent.
    A recovery for negligence causing death is exclusively for the benefit of the decedent’s next of kin where he leaves no wife. The term “ next of kin” includes all those entitled under the statute of distributions of personal property to share in unbequeathed assets after the payment of debts and expenses, other than a surviving wife or husband.
    The rights of inheritance as between an adopted child, his foster parents and his natural parents must be determined, not by the statute in force at the time of the adoption, but by that in force at the time of his death.
    Where the statute in force at the time an adopted child was killed by negligence cut off the rights of inheritance and succession of his natural parents and transferred those rights to the foster parent, the moneys recovered for his death should be distributed among his foster parent’s next of kin, she having died before the decedent who left no wife or children.
    The natural mother of the adopted child who was also the sister of the foster parent is entitled to share in the recovery through her, but neither she nor the father of the adopted child may take as his next of kin.
    Foots, J., dissented.
    Appeal by the defendant, the Buffalo General Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of June, 1912, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 19th day of June, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hugh E. Rourke and Alfred L. Becker, for the appellant.
    
      Carleton H. White and Hamilton Ward, for the respondent.
   Kruse, J.:

The defendant appeals from a judgment entered upon a verdict for $5,000, recovered as damages for the death of plaintiff’s intestate, resulting from the negligence of the defendant in whose employ decedent was at the time of his death, and from an order denying defendant’s motion for a new trial.

The only question raised upon this appeal relates to the damages. The decedent was an adopted son, and the question is, who are his next of kin. He was thirty-one years of age at the time of his death. He had never married and never had a brother or sister. He was adopted in March, 1884, by his aunt, a sister of his natural mother, pursuant to the provisions of chapter 830 of the Laws of 1873. The foster mother predeceased the decedent. She died leaving her surviving as her only heirs and next of kin one brother and two sisters, one of whom is decedent’s natural mother, and all of whom are still living. The decedent’s natural father also survived him, and is still living.

If the foster mother’s brother and sisters are the next of kin of plaintiff’s intestate, as the trial court held, the defendant does not challenge the amount of the recovery; but defendant claims they are not, contending that the foster mother having predeceased plaintiff’s intestate, the natural father is the sole next of kin beneficially interested in any recovery that may be had in the action.

While such an action as this is required to be brought in the name of the executor or administrator of the decedent, the recovery is exclusively for the benefit of the decedent’s next of kin, he having left no wife (Code Civ. Proc. §§ 1902, 1903, 1904, 1905), and the term next of kin ” includes all those entitled under the provisions of law relating to the distribution of personal property, to share in the unbequeathed assets of a decedent after payment of the debts and expenses, other than a surviving husband or wife. By subdivision 7 of section 98 of the Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18) the father takes the whole of the unbequeathed assets of the decedent, if the decedent leaves no widow and no child or descendant. If, therefore, the legal relation of son and father existed between the decedent and his natural father at the time of his death, unaffected by the adoption proceedings and the statute relating to adoption, the entire recovery would be distributable to the father, and he would be the only person who legally would sustain any pecuniary loss by the death of the deceased. If, upon the other hand, the natural father is not a next of kin of the decedent within the provisions of the Decedent Estate Law, and the brother and two sisters of his foster mother are to be regarded as the decedent’s next of kin, then the damages sustained by them are recoverable, as was held by the trial court.

Chapter 830 of the Laws of 1873, as in force at the time the decedent was adopted, provided in section 10 that “A child, when adopted, shall take the name of the person adopting, and the two thenceforth shall 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, * * But the question here must be determined by the law as it was in April, 1911, at the time of the death of the decedent. (United States Trust Co. v. Hoyt, 150 App. Div. 621; Gilliam v. Guaranty Trust Co., 186 N. Y. 127; Theobald v. Smith, 103 App. Div. 200; Dodin v. Dodin, 16 id. 42; affd., 162 N. Y. 635.) At that time the statute provided that the natural parents of the adopted child should be relieved from all parental duties toward, and of all responsibility for, and have no rights over the child, or to his property by descent or succession, although his rights of inheritance and succession from his natural parents remained unaffected by such adoption. It further provided that the child should take the name of the foster parent, and they should sustain toward each other the legal relation of parent and- child, and have all the lights and be subject to all the duties of that relation, including the right of inheritance from each other, except as affected by certain provisions therein referred to, which have no application to this case, and concluded with this final provision: 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 or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen.” (Dom. Bel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], § 114.)

In view of the provisions of that section, I am unable to see how the father would be entitled to any interest in the property of his natural son, by inheritance or succession. The death of the foster mother did not restore the legal relation of parent and child between the natural father and the son, and as regards the brother and sisters of his foster mother, except the sister who is his natural mother, they would sustain precisely the same degree of relationship in succeeding to his property under the intestate laws, whether he is to be regarded a son of his natural mother or a son of his aunt, his foster mother. While the legal relation of parent and child between the natural mother and her son was severed by the adoption proceedings, it did not affect the relation between herself and her sister, who adopted her son.

Several decisions are cited by counsel upon either side of this controversy, but it is not claimed that they are decisive of this case. They give a history of adoption, but none decides the precise question here. (Matter of Thorne, 155 N. Y. 140; United States Trust Co. v. Hoyt, 150 App. Div. 621; Gilliam v. Guaranty Trust Co., 186 N. Y. 127; Matter of Cook, 187 id. 253.) What is stated in some of the opinions is in line with the conclusion reached here. (Gilliam v. Guaranty Trust Co., supra, 135; Matter of Cook, supra, 260; Matter of MacRae, 189 N. Y. 142, 147.)

I am of the opinion that the brother and sisters of decedent’s foster mother, including his natural mother, are the next of kin entitled to his property under the statutes referred to, and not his natural father, and that any damages which they have sustained resulting from the death of the decedent, through the negligence of the defendant, are recoverable in this action.

It follows that the judgment and order should be affirmed, with costs.

All concurred, except Foote, J., who dissented.

Judgment and order affirmed, with costs.  