Surrogate's Court, Westchester County, November, 1921. [Vol. 117. we find this tendency to be less strong in cases of legatees who were strangers in blood." In Harvey v. Kennedy, 81 App. Div. 261, the legacies were to sisters, the residuary estate passed to the daughter, and the court refused to charge the legacies on the real estate. In Wellbrook v. Otten, 35 Misc. Rep. 459, Justice Russell said, referring to the testator: "His union with Mrs. Hulseberg had proved childless and neither had any descendants. He had taken the plaintiff when but a few months old and reared her as he would a daughter, both he and his wife giving her the appellation of adopted daughter. She stood to both of them as a child, and had no other home than theirs, until she was married. Apart from his wife there was no one so close to him in the tender ties of daily companionship and deliberately assumed fathership. He took no steps to legally adopt the plaintiff, doubtless knowing that he meant to provide for her by testament. There seems to have been no interruption in his loving regard for the plaintiff." This last statement might very well be made in the instant case, covering the relationship which existed between the decedent and the adopted daughter. Justice Russell in this case held that the gift of the legacy to the adopted daughter was a charge upon the real estate, and said: "The extrinsic situation, therefore, both as to condition of his property, his wife's property and the claims of those properly and in fact the natural recipients of his bounty, which was present in the mind of the testator in making the will and the codicil, renders as certain as the evidence of circumstances can afford, the presumption that the testator meant that when his wife died this daughter and brother should receive the full benefits he had planned to give them." In Carley v. Harper, supra, the court said that the Misc.] Surrogate's Court, Westchester County, November, 1921. relation of the beneficiaries of the will to the testator is not to be overlooked and the presumption favors children rather than strangers. In Matter of Noe, 94 Misc. Rep. 63, Surrogate Fowler reflected this same thought when he said: "She had no immediate relatives who would be the natural objects of her bounty; there was no one dependent upon her whom she would be under an obligation to support. Her legatees were personal friends, charitable or religious corporations and persons remotely related to her. There would therefore be no controlling reason for the discrimination in favor of the residuary legatees which a construction limiting the payment of the pecuniary legacies to the personal estate would necessarily imply *. Neither of the resid uary legatees was the natural object of her bounty; one was a corporation, the other merely a friend. There is nothing in the will which would indicate an intention on the part of the testatrix to prefer these legatees to the thirty other legatees to whom she had bequeathed various sums, and there is no reason extrinsic of the will which would justify or explain such a preference." Likewise, Surrogate Foley, in Matter of Obst, 115 Misc. Rep. 711, holds that the courts will take note of the relationship of a legatee as a controlling factor, when he said: "The legacy of the income on $3,000 in trust for the benefit of Marietta Kerns, the widow of the deceased son of the testatrix, is a specific legacy. Matter of Matthews, 122 App. Div. 605. It also partakes of the nature of a demonstrative legacy, being payable out of a specified fund. Crawford v. McCarthy, 159 N. Y. 514. In either case it is entitled to a preference. The daughter-in-law resided with the testatrix, and appears to have been a special object of her bounty. No other provision was made for her. Surrogate's Court, Westchester County, November, 1921. [Vol. 117. The codicil contains a clear and unequivocal expression of the testatrix's intention to prefer this legacy to the widow of her son over any of the others. Matter of Lloyd, 166 App. Div. 1. This legacy should therefore be paid in full." Also Justice Clarke in Bly v. Bly, 163 App. Div. 320, 333, said: "No natural objects of the testator's bounty, widow, children, or descendants, clamor to us to mark this venerable and public-spirited man as enacting a practical joke at the edge of his grave. The case of Richardson v. Richardson, 145 App. Div. 540, Justice Rich writing, also affirms the same principle. Surrogate Schulz, in Matter of Gaffney, 109 Misc. Rep. 397, declined to hold that the devise of real estate given to the daughter should in any manner be cut down. Thus, the major reason created by blood and relationship existing for many years, as parent and child, is a powerful reason, whether such person be a general legatee, or a residuary legatee. The cases of Carley v. Harper, supra, and Ely v. Megie, 219 N. Y. 112, may well be distinguished from the instant case. In the former case the will contained a direction to pay the transfer tax from the residue, suggesting that the legacies should be paid in full. Also in the Carley case the trial court found that when she made her will, the testatrix knew or believed she possessed a certain amount of personal property. That has not been shown in the instant case. The relationship of the beneficiaries to the testator did not exist in Ely v. Megie, supra. In Carley v. Harper, supra, relatives of the blood took as general legatees, as well as residuary legatees. The question of disinheriting, or discriminating against a child was not involved in either of these cases. It was stated by Judge Hogan in Ely v. Megie, supra, Misc.] Surrogate's Court, Westchester County, November, 1921. that a gift to legatees would indeed be a "mockery and an absurdity" with an inadequate fund from which to pay the legacies. In the instant case then, we certainly have a double mockery. If the real estate is charged with the payment of the general legacies, it would result in causing the gift to the child to be valueless, and the words of gift of the testatrix" nugatory and unavailing." She would receive nothing, "less than equity suggests as her share." It is very noticeable that in all the cases dealing with the subject a preference is given to relatives of the blood, and particularly to persons who stand in the relation of parent and child, rather than to strangers, relatives of less degree, or to charitable corporations. Where those standing in these positions to the decedent are the residuary devisees, the courts have consistently refused to charge their gifts with the payment of the general legacies. Seemingly, the courts are slow to infer a preference against those standing in this relationship. Where this class are named as general legatees, then the courts have consistently held that such gifts are a charge upon the real estate. This distinction is expressive. The courts have struggled to find a reason for holding in favor of a child. Lupton v. Lupton, supra; Taylor v. Dodd, 58 N. Y. 335; Kalbfleisch v. Kalbfleisch, 67 id. 354; Bevan v. Cooper, 72 id. 317; Hoyt v. Hoyt, 85 id. 142; Scott v. Stebbins, 91 id. 605; McCorn v. McCorn, supra; Brill v. Wright, 112 N. Y. 129; Briggs v. Carroll, 117 id. 288; Morris v. Sickly, 133 id. 456; Irwin v. Teller, 188 id. 25; Carley v. Harper, supra; Ely v. Megie, supra; McGoldrick v. Bodkin, 140 App. Div. 196; Lediger v. Canfield, 78 id. 596; Wellbrook v. Otten, 35 Misc. Rep. 459. It would appear that persons of the blood and those who stand in the position of parent and child, and persons dependent upon the deceased are preferred by Surrogate's Court, Westchester County, November, 1921. [Vol. 117. the court because they do not come within the general rule of "mere bounty." To my mind it is a material circumstance, far outweighing any other, in considering the general intent of the testatrix, that the residuary legatee stood in the mutually acknowledged relationship of parent and child. Such a preference is acknowledged in the Transfer Tax Law, Laws of 1909, chapter 62, section 221A. There is, too, the canon of construction that where there are two equally probable interpretations of the language of a will, that one is to be adopted which prefers the kin of a testator to strangers, and, in doubtful cases, the courts will favor those dependent upon a person's natural bounty. The circumstances relating to the life of Mrs. Coombs, her bringing up, her education, her marriage, in fact her status in the family life, are all circumstances most material in differentiating the gift to her from the class of "mere bounty." Mrs. Coombs was the only person who sustained to the decedent in her lifetime the relation of a child. She became in tender years the object of the testatrix's solicitude and providing care. She was practically adopted by her. Matter of Chambers, 112 Misc. Rep. 551. The child was dependent upon her. When a child is adopted from its own natural environments into the home, a burden is assumed. Most people pour out to such a child a generous supply of love and affection, sometimes far exceeding what would naturally flow to one's own natural offspring. The extra care, devotion and love is evidence of a desire to cause the child to be bettered by the change of home conditions. I cannot think that Charity C. Mould ever intended to mock this child with a valueless bequest, giving her only "my lot in Greenwood Cemetery," in later years to house her body. The design on the part of the testatrix to have the legatee first die, before the realization of the |