judged that she, an adopted daughter, was the heir at law of one Frances J. Thomas, and, as such, entitled to take certain real estate under a deed which conveyed said real estate to the use of Mrs. Thomas during life and after her decease to her heirs at law. The appellants are brothers of Mrs. Thomas, and by their demurrer to the complaint, which fully sets out the facts, challenge the right of plaintiff to take as an, heir at law under the circumstances of this case. I am led to the conclusion that plaintiff's claim is well founded, and that the judgment appealed from should be affirmed.

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*

In 1853 Eliza Hunt conveyed land to one Findlay, as trustee of Frances J. Dyett (afterwards Thomas), "in trust for the use and benefit of said Frances J. Dyett during her natural life, and, after her decease to her heirs at law, except that the said party of the first part does hereby expressly authorize and empower the said party of the second part as such trustee as aforesaid to sell and convey said lands and premises * and the money or proceeds of said sale to be invested as soon as conveniently may be in other real estate in the name of the party of the second part but for the use of said Frances during her life, and, after her decease, to her heirs at law, and if the sale of said lands should be made, the money or proceeds of said sale shall, until reinvested, again be considered as land, and held in trust for the benefit of said Frances during her life and after her decease to her heirs at law." The defendant trust company has been appointed trustee in the place of said Findlay. In December, 1883, said Frances J. Dyett, who had been intermarried with Francis H. Thomas, and her said husband, pursuant to the provisions of chapter 830, p. 1243, of the Laws of 1873, entitled "An act to legalize the adoption of minor children by adult persons," duly adopted plaintiff, who then was an infant, as and for their own lawful child, and thereafter, said persons so adopting, and the plaintiff herein, sustained towards each other the mutually acknowledged relation of parent and child. The husband died in the year 1888, and Mrs. Thomas died February 24, 1905, leaving her surviving no children or descendants of children. At the time the deed was executed, and at the time Mrs. Thomas died, except for plaintiff, appellants, her brothers, were her sole heirs at law and next of kin, upon the assumption that their father was dead. There appears to have been at the date of the death of Mrs. Thomas some accumulation of personal property as the result of the trust in her favor, and no question is made by the appellants that such personal property should pass to the plaintiff. The only question arises with reference to the inheritance of the real estate.

The appellants' demurrer, which, in effect, denies plaintiff's right to take said real estate under the provisions of the deed, rests upon

two distinct propositions: In the first place, they urge that they, being the only heirs at law of Mrs. Thomas when the deed was executed, took a vested right to the remainder in the real estate upon her death, which could not be defeated by the subsequent adoption of the plaintiff. And, secondly, they insist that whether this first proposition be maintained or not, the plaintiff, under the statutes defining the rights of inheritance of adopted children, was not an heir at law who could take the real estate. I shall consider these propositions in the order stated.

The first one may be somewhat briefly disposed of. I do not regard it essential to consider in detail the arguments which have been addressed to us for the purpose of determining whether the rights of appellants under the clause of final disposition in the deed at the time of its execution were in the nature of a contingent remainder or of a vested remainder, which would be divested by death before the death of the life beneficiary or which would open to admit other heirs arising before that event. Whatever disagreement there might be about the technical definition to be given to appellants’ position as the only heirs at law of Mrs. Dyett when the deed was executed, I regard the law as well settled which, so far as concerns the practical question in this case, governs the construction of the clause of remainder, and fixes the time as of which the heirs at law under it are to be ascertained. The general rule applicable to the facts here presented is well established that when property at a future date is to pass to a certain class of persons it will be distributed amongst the persons who compose such class at the date of distribution. Paget v. Melcher, 26 App. Div. 12, 18, 49 N. Y. Supp. 922; affirmed, 156 N. Y. 399, 51 N. E. 24; Matter of Baer, 147 N. Y. 348, 41 N. E. 702; Bisson v. W. S. R. R. Co., 143 N. Y. 125, 38 N. E. 104; McGillis v. McGillis, 11 App. Div. 359, 42 N. Y. Supp. 921. Therefore, whatever may have been the legal situation of the appellants at the time when the conveyance was made, as demonstrated in terms of legal phraseology, if before the death of Mrs. Thomas other persons rather than they had become the heirs at law, such latter persons are to be regarded as answering the requirements and taking the benefits of the grant. It is conceded, as I understand it, by the learned counsel for the appellants that if the life beneficiary had left her surviving a natural child, such child would have been her heir at law to the exclusion of the appellants, and would have taken the real estate; but it is insisted that Mrs. Thomas could not. by the artificial process of adoption, create an heir who would divert the course of title of the real estate from the persons who were the natural heirs at law. And we are thus brought to the consideration of the second question above outlined, whether plaintiff was an heir at law for the purpose of taking

the real estate in question. This involves an examination of the statutes relating to the rights of adopted children.

The act of 1873, under which plaintiff was adopted, excluded her from any right of inheritance. After other enactments upon the subject which are immaterial here (chapter 272, p. 225, of the Laws of 1896 [Domestic Relations Law]) was adopted, which, at the date of the death of Mrs. Thomas, provided (section 60): "Nothing in this article in regard to an adopted child inheriting from the foster parent, applies to any will, devise, or trust made or created before June 25, 1873, or alters, changes, or interferes with such will, devise, or trust, and as to any such will, devise, or trust, a child adopted before that date is not an heir, so as to alter estates or trusts, or devises, in wills so made or created." Section 64 of said act and article, as amended by chapter 408, p. 333, Laws 1897, provided that the adopted child should take the name of the foster parent, and that "the foster parent or parents and the minor sustain towards 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 the child of the foster parent so as to defeat the rights of remaindermen." These are the provisions which were in force at the time plaintiff's rights of inheritance accrued, if at all, and by them we are to test and measure such rights. It is too well established to require any discussion that the relationship of appellants to Mrs. Thomas, which originally made them her heirs at law, did not confer any vested right during the life of the sister to the continuance of such heirship, but that the Legislature had the power to change this, and provide for a different line of inheritance; also, that a child adopted under the provisions of the act of 1873 giving no right of inheritance is entitled to the benefit of the statute enacted subsequent to the adoption conferring such right. Dodin v. Dodin, 16 App. Div. 42, 44 N. Y. Supp. 800; Theobald v. Smith, 103 App. Div. 200, 92 N. Y. Supp. 1019. The only query is whether the statutes in force at the time when it became necessary to determine the identity of the heirs at law of Mrs. Thomas did, or did not, make plaintiff one of those heirs. We set out upon the inquiry confronted and governed by the general provision above quoted that an adopted child is clothed with the right of inheritance from its foster parent. This right, not only extends to it personally, but through it to its heirs and next of kin. The com

manding force of the statute secures to it in these respects the same rights which would be conferred by natural and blood relationship, except as to those rights which are limited by certain qualifications and exceptions. The plaintiff, therefore, can justify her claim to inheritance under the general rule, unless she can be brought fairly within the exceptions or qualifications of which, as the only ones pertinent, quotation has already been made. It seems easy to determine that the facts of this case do not bring her within that prohibition of section 64 which prevents an adopted child from defeating by inheritance the passing and limitation over of property dependent upon a foster parent "dying without heirs." The mere reading of the deed in question makes it as plain as discussion could that the present one is not a situation coming within the terms of this provision. I do not understand that it is claimed otherwise. But reliance is placed by appellants upon the clause quoted from section 60, and, while there may be more basis for discussion of the effects of this than of the one just considered, nevertheless, I do not think that a careful analysis and fair construction of this clause justifies the conclusion that it prohibited plaintiff from inheriting as heir of Mrs. Thomas. The final sentence thereof, "That as to any such will, devise, or trust * * [one made

*

or created before June 25, 1873] a child adopted before that date is not an heir, so as to alter estates, or trusts, or devises in wills so made or created," may be at once dismissed as inapplicable, for the reason that the plaintiff was not adopted before the date in question. This leaves for consideration the provision that "nothing in this article in regard to an adopted child inheriting from a foster parent applies to any will, devise, or trust made or created before June 25, 1873, or. alters, interferes with, or changes such will, devise, or trust." The language employed is not altogether apt, and I suppose that its fair translation would be that the right of inheritance conferred upon an adopted child should not permit it to take under any will, devise, or trust made or created before June 25, 1873, or to alter, interfere with, or change the effect of such will, devise, or trust. I do not discover that it has thus far been claimed by any one that the inheritance by plaintiff would be under or by virtue of any will or devise, or would alter, change, or interfere with the provisions of any will or devise. The meaning of those terms is so well settled, and so confined to a testamentary disposition of property, that it would be quite violent to so extend their scope as to include a grant and conveyance by deed, even though the latter in some respects may have answered the purpose of a last will and testament. If it should be urged that there was no reason why the Legislature, prohibiting an adopted child from interfering by inheritance with wills

and devises, should not extend such prohibition to a deed largely answering the purpose of a will and devise, it must be answered that it was for the Legislature to determine what they would and would not include in their enactments, and, if through intention or even inadvertence they have fairly failed to provide for such a case as is presented here, we cannot supply such omission by any process of improper construction.

The more insistent argument has been based upon the prohibition of inheritance under or interference with a "trust" made or created before June 25, 1873. I doubt if it would be claimed that the plaintiff's standing as an heir is undermined and destroyed by this provision if we give to the language its ordinary meaning, and construe the statute and the deed as they have actually been written rather than to the end of accomplishing some particular result. The only "trust" was created for the benefit of Mrs. Thomas (Dyett) during her life. The deed ran to the grantee "as trustee of Frances J. Dyett," and it was "in trust for the use and benefit of the said Frances J. Dyett during her natural life," and, after her decease, to her heirs at law; the trustee was permitted to do certain things as he should consider "for the best interests of the said Frances." The purpose of the trust and the functions of the trustee were all accomplished and discharged when Mrs. Thomas died, and, after that event, the property passed without the aid of any trust to her heirs. No suggestion is made in the complaint or by the appellants that there will be any necessity even for a formal conveyance by the trustee. The heirs at law will take the legal title under the remainder clause of the deed after the trust has been fully executed, and the succession by them to the title will be as independent of the trust as if provided for in a separate instrument. Under those circumstances, it does not seem to be the natural construction to say that the plaintiff will take under or in any manner alter, change, or interfere with the only trust which was created. But, in substance, it was reasoned in the dissenting opinion of the learned justice in the Appellate Division, and has been argued upon this appeal that, when the grantor provided for remainder to the heirs at law of Mrs. Thomas, he contemplated heirs of the blood, and that, therefore, it would be unjust to allow her to create one by legal proceedings, and that we ought to seek out some process of reasoning or construction which will avoid violation of the grantor's intentions. And the suggestion is made that we may construe the word "trust" in the statute as broad enough to include the deed in part devoted to creating the trust, and regard the entire conveyance as impressed with the nature of a trust because it is in part devoted to creating one. In other words, it is urged that the court, if possible, ought somewhat to adapt its interpretation of the deed and statute to

the end to be reached, and that end is the prevention of a creation by adoption of an heir who will displace natural heirs, and disappoint what is assumed to have been the expectations of the grantor. I cannot concede that any sufficient reason exists why we should depart from the natural interpretation of the statute, as I have attempted to outline it, and adopt the latter one as a matter of policy even if we could. In the first place, since the Legislature has deemed it wise as a matter of general policy to authorize the adoption of children, and to confer upon them in general the rights, as well as obligations, of natural children, we should be careful not unreasonably to limit those rights for the purpose in some given case of carrying out the assumed intention of some individual. But further than this, the argument that the intention of the grantor will be violated by allowing plaintiff to inherit, while superficially a potential one, does not stand the test of careful analysis. Of course the donor when he executed his deed could not apprehend that, at a given date many years hence, statutes would be enacted providing for the adoption of children, and conferring upon them the right of inheritance. But, upon the other hand, he must be assumed to have known that the lines of inheritance were governed by statute, and at any time could be changed. He was evidently interested in providing for the life beneficiary in a certain definite manner down to the moment of her death, and did so. But after that, apparently, he had no desire to limit the succession to his real estate to any particular definite line of persons. He directed generally that it should go to her heirs at law; that is, to the persons whom the law should designate as her heirs when the time arrived. He threw the responsibility of selection upon the law. He took his chances upon the happening of just what did happen. There is nothing to show that he was related by blood to Miss Dyett and her heirs, and if the statute gave her the right, and she desired in default of children to adopt plaintiff, and by force of law establish in all other respects the same relationship of parent and child which natural birth would have created, I am not able to think that the passage of the grantor's real estate to such child will be any serious violation of his desire and direction that it should go to her heirs at law.

As was said in Kohler's Estate, 199 Pa. 455, 49 Atl. 286, with reference to an adopted child: "The will of John Kohler, father of the cestui que trust, was written 36 years before the decree of adoption, and that event, therefore, was not reasonably within the contemplation of the testator. But, as he gave the estate to those persons to whom the law would give it in case of intestacy, he cannot be said to have had any particular class of heirs or next of kin in view, and he committed the question of determining who should take it to the law itself."

The judgment should be affirmed, with | costs. Question certified answered in the affirmative, with leave to defendants to withdraw demurrer, and answer within 20 days on payment of costs.

GRAY, EDWARD T. BARTLETT, and CHASE, JJ., concur. CULLEN, C. J., and O'BRIEN and WERNER, JJ., dissent.

Judgment affirmed.

(186 N. Y. 89)

ST. REGIS PAPER CO. v. SANTA CLARA LUMBER CO.

(Court of Appeals of New York. Oct. 2, 1906.) 1. CONTRACTS-RESCISSION-FAILURE OF THE OTHER PARTY TO PERFORM.

A contract by defendant to cut pulp wood, and deliver it to a paper company for 10 years during 10 months of each year, stipulated that the company should make such advances to defendant as it might request during the progress of the work not exceeding the cost of the work. Held, that the fact that the company's advances were $12,500 less than the $37,000 incurred by defendant during the progress of the work did not show an intentional default on the part of the company sufficient to warrant defendant in rescinding the contract.

[Ed. Note.-For cases in point see vol. 11, Cent. Dig. Contracts, §§ 1174-1180.] 2. SAME-CONSTRUCTION.

A provision in a contract by defendant for the cutting and delivery of pulp wood to a paper company, which requires the company to make advances to defendant during the progress of the work, not exceeding the cost thereof, does not limit the advances to the ordinary and customary advances made to parties who get out wood for the market, but limits the sum to the amount which defendant properly expends towards cutting and hauling the lumber.

3. SAME-RESCISSION-GROUNDS-FAILURE OF OTHER PARTY TO PERFORM.

A contract by defendant to cut pulp wood, and deliver it to paper company for 10 years during 10 months of each year stipulated that the company should make advances to defendant during the progress of the work not exceeding the cost thereof. Defendant expended $37.000 and the company advanced $25.000. Defendant then wrote to the company, complaining of its failure to make the advances. The company replied that the advances had been properly made, and that, in view of the fact that defendant was conducting extensive operations of its own, the amount to be advanced must be the customary amount, and suggested an arbitration. Pending negotiations for an arbitration defendant notified the company that the contract was rescinded. The company's position was taken in good faith, and it continued to insist on the performance of the contract. Held, that defendant was not entitled to rescind, and a judgment refusing to grant to the company specific performance was erroneous, especially in view of its performance of a substantial part of the contract. 4. SAME-WAIVER OF GROUND.

A contract by defendant to deliver pulp wood to a paper company bound the company to make advances to defendant during the progress of the work of cutting and hauling the wood not exceeding its cost. Defendant notified the company of its intention to rescind the contract unless the requests for advances were complied with, but continued to take the money the company thereafter advanced. Held, that the re

ceipt of the money operated to abrogate defendant's right to rescind.

[Ed. Note.-For cases in point see vol. 11, Cent. Dig. Contracts, §§ 1181, 1182.]

5. SAME-NOTICE OF INTENTION TO RESCINDSUFFICIENCY.

A contract by defendant to cut and deliver pulp wood to a paper company bound the company to make advances to defendant during the progress of the work not exceeding its cost. Defendant notified the company that a certain sum must be advanced by a certain time, and stated that it was disinclined to continue trying to fulfill the contract unless the advances could be more promptly made. Held insufficient as a notice of defendant's election to abandon the contract unless by a certain time the company made the necessary advances.

Gray, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by the St. Regis Paper Company against the Santa Clara Lumber Company. From a judgment of the Appellate Division of the Third Department (93 N. Y. Supp. 1146), affirming a judgment entered on a decision of the Special Term (85 N. Y. Supp. 1034) in favor of defendant, plaintiff appeals. Reversed, and new trial granted.

Elon R. Brown and Henry Purcell, for appellant. George R. Malby and Henry W. Jessup, for respondent.

CULLEN, C. J. This action was brought for the specific performance of a contract whereby the defendant agreed to cut and deliver to the plaintiff from 11,000 to 13,000 cords of pulp wood a year from a large tract of wild lands in the Adirondacks owned by the defendants, during the term of 10 years, at the price of $9 a cord, with the privilege to the plaintiff to obtain a renewal of the contract for an additional term of 10 years at $12 per cord. The case has been before this court on a previous appeal and is reported in 173 N. Y. 149, 65 N. E. 967. In that report will be found a statement of the parts of the contract material to this controversy. On the former appeal, this court, reversing the decisions of the courts below, held that the contract was one the performance of which a court of equity could properly enforce. After our decision the case was tried on its merits and judgment was rendered by the trial court in favor of the defendant on the ground that the plaintiff had made default in the performance of that provision of the contract whereby the plaintiff agreed to make advances to the defendant for the cost of cutting and getting out the wood. The provision is as follows: "Party of the first part (defendant) shall commence to cut wood on or about the 15th day of August of each year for the following season's supply. Party of the second part (plaintiff) shall make such advances of money to party of the first part as it may request during the progress of the work, but party of the second part need not advance

more than approximately the cost of the work done. Payment for the said wood shall be made by the party of the second part to the party of the first part on the 15th day of each month for the wood delivered during the next preceding calendar month, after first deducting from the aggregate of the purchase price of the said wood one-tenth of the. advances made upon that season's operations until such advances have been repaid." The judgment of the Special Term was affirmed by the Appellate Division by a divided court, and from the judgment of affirmance this appeal is taken.

The contract, dated the 29th day of August, 1899, was executed by the parties about the 1st of October in that year. For some time prior to the execution of the contract, however, the parties had been in negotiation concerning it, and during that interval, in contemplation of the contract, the defendant had built roads, constructed permanent camps, and incurred expenses for various items necessary for the prosecution of the work. Under the contract, the wood was to be delivered to the plaintiff at any point, the expense of the transportation to which should not exceed the cost of the transportation from Tupper Lake Junction to Watertown N. Y., and the delivery was to commence on or about the 1st day of June in each year. The ordinary method of taking out wood was to cut it, and haul it to the streams during the winter season, whence the next spring it was floated to the point of delivery. No deliveries would be, therefore, made to the plaintiff till June, 1900. On October 7th the defendant demanded the sum of $2,500 on account of expenses already incurred by it, with which demand the plaintiff complied on October 18th. On October 26th the defendant demanded the sum of $5,000 on account, and on November 17th an additional sum of $5,000. On account of these two demands, the plaintiff, on December 5th, paid the sum of $7,500. Now, while the whole controversy and the decision of the court below proceed on the failure of the plaintiff to properly respond to the defendant's demands for advances, it would be impracticable to give within the limits of an opinion even an abstract of the details of the correspondence between the parties. It is sufficient to say that from October 26, 1899, to March 24th following, the defendant made repeated demands for advances, while the plaintiff insisted that the advances asked for by the defendant were largely in excess of those ordinarily made for the purpose of taking pulp wood from the forest. On March 24, 1900, which was the date of the last demand by the defendant prior to its notification to the plaintiff that the contract was rescinded by it, the account between the parties, as found by the trial court, stood as follows: The defendant had expended $37,132.80; the plaintiff had advanced the defendant the

sum of $25,000. On March 24th the defendant sent to the plaintiff the following letter: "Malone, N. Y., March 24th, 1900. The St. Regis Paper Co., Watertown, N. Y.-Dear Sirs: In response to my notice to you some time since you sent me check for $5,000 on the Santa Clara Lumber Co. pulp-wood contract, which I at once forwarded to the company in New York. I have to-day received a letter from the company, saying that they have received $25,000, which was $12,500 short of the actual cost of the wood in its present condition, and they request me to ask you to remit at least $5,000 more; that the annoyance that they experience in getting these advances is so great that they feel very much disinclined to continue trying to fulfill the contract on their part unless the advances can be more promptly made. Hoping that you will remit at least $5,000 I remain, Very respectfully yours, John P. Badger." To which the plaintiff made this reply: "Watertown, N. Y., March 26th, 1900. John P. Badger, Esq., Malone, N. Y.-Dear Sir: Your favor of the 24th inst. at hand and noted. We have advanced the Santa Clara Lumber Co. $2 per cord upon the quantity of pulp wood which they claim to have cut, and we have advanced this amount promptly upon receiving their several requests. As we have already explained to you, this is the amount which is ordinarily advanced to cover the cost of pulp wood delivered to the stream. We understand that the Santa Clara Lumber Co. have spent an unusual amount of money this year in establishing permanent camps and roads with a view of reducing the expense of maintenance in the future. We also understand that they have been lumbering upon their own account. We could hardly be expected to share in unusual expenses, and in view of the fact that they are conducting extensive operations of their own, it seems to us the only way we can arrive at the amount to advance is to take the customary amount. As we have heretofore said to you, however, the matter is merely one of interest, and we have suggested a friendly arbihration. You have consented to the arbitration, but, nevertheless, continue to make further requests for additional advances. Very truly yours, G. C. Sherman, Treas." Nothing further passed till April 12th, when the defendant notified the plaintiff that on account of the latter's failure to make advances to the extent of the cost of work done the contract was rescinded, and at the same time sent to the plaintiff a certified check for $25,344.79, the amount advanced by it with interest. It appears that at this time pulp wood had appreciated in price, and the defendant had made a contract for the sale of its wood to other parties on more favorable terms. The plaintiff refused to receive the check, and wrote the defendant insisting that the contract still continued in force,