Martin, P. J.
In this proceeding the parties seek the construction of certain provisions of the will of Anna Livingston Morton, deceased, disposing of real property situated within this State. The appeal is from the judgment in so far as it holds that the adopted children of Mary Morton, a daughter of the said Anna Livingston Morton, have no interest in the real property described in the complaint.
Anna Livingston Morton died August 14, 1918, a resident of the District of Columbia, leaving a will dated January 15, 1916, and two codicils, all of which have been admitted to probate in the District of Columbia. At the time the will and codicils were executed the husband of the testatrix, Levi P. Morton, and her four daughters were living. Two of her daughters, Alice and Edith, were married and had children. Her husband and three of her daughters survived the testatrix. The daughter Alice died before her mother and left six children, all of whom survived the testatrix.
Mary Morton, a daughter of the testatrix, died on April 20, 1932, a resident of Pennsylvania. She was unmarried and left no issue. She left her surviving two sisters and five children of her deceased sister, Alice. She also left her surviving two children whom she had adopted in Pennsylvania, Louis Peter Morton, adopted June 17, 1925, and Miriam Morton, adopted January 10, 1930. She [33]*33had also adopted in Pennsylvania, on November 21,1927, William Hayes Morton, but relinquished this infant on February 20, 1930, to an institution in California. He was thereafter adopted in California by William Hazlett Minor and his wife, and is now known as William Hazlett Minor, Jr.
By article fourth of the will of Anna Livingston Morton, the residue of her estate was given to her executor in trust to be held by it in as many equal shares as she should leave children her surviving or children predeceasing her, who should leave issue her surviving, the income of each share to be paid to the beneficiary thereof during her life. Upon the death of the beneficiary, the testatrix gave the share to the “ issue, if any,” and, in default of issue, to the beneficiary’s “ heirs at law and next of kin, to be equally divided among them, per stirpes and not per capita,” subject, however, to the execution by the beneficiary of certain powers conferred, including, by subdivision fourth, the power to the beneficiary leaving no issue to dispose by will of one-half of the principal of her share, the remaining half of said share to go to the beneficiary’s “ heirs at law and next of kin,” as above provided.
Mary Morton left a will dated May 5, 1930, which has been duly admitted to probate by the Surrogate’s Court of New York county. Under it she gave $10,000 in trust for the infant William Hayes Morton (now known as William Hazlett Minor, Jr.), and she exercised her power of appointment under the will of her mother by creating a trust for the benefit of her adopted children, Louis Peter Morton and Miriam Morton.
The trial court has ruled that none of Mary Morton’s adopted children were her “ heirs at law and next of kin,” within the intent and meaning of the will of her mother, Anna Livingston Morton; and further ruled that section 114 of the Domestic Relations Law bars the adopted children from taking “ as heirs at law and next of kin.”
On behalf of the adopted children it is contended that the plain presumption is that Anna Livingston Morton, by the words, “ heirs at law and next of kin,” intended the persons who would have been entitled by statute to the principal of Mary Morton’s trust fund had she died intestate owning such fund absolutely; that the whole tenor of the will confirmed that the testatrix had no other intention, and neither the fact that the adopted children were adopted after the death of Anna Livingston Morton, nor the fact that Mary Morton was only given power of appointment over one-half of her trust, is evidence of a contrary intention.
[34]*34The courts of this State have considered claims asserted by adopted children to gifts to “ heirs at law ” or “ next of kin ” and have decided in favor of the adopted children. (Gilliam v. Guaranty Trust Co., 186 N. Y. 127; United States Trust Co. v., Hoyt, 150 App. Div. 621; Bridenbaker v. Kissell, 215 id. 751; Kemp v. New York Produce Exchange, 34 id. 175.)
The test, however, is not the status of the adopted children at law but the intention of the maker of the will and the meaning of the language used therein. (New York Life Insurance & Trust Co. v. Viele, 161 N. Y. 11; Tillman v. Davis, 95 id. 17; Dodin v. Dodin, 16 App. Div. 42; Matter of Walter, 270 N. Y. 201.)
The courts of the domicile of the testatrix in this case have construed the meaning of the words “ heirs at law and next of kin,” as used by the testatrix in her will. In Rutherfurd v. American Security & Trust Co. (12 F. [2d] 155) the Court of Appeals for the District of Columbia, affirming the Supreme Court of the District, said: “ in our view, a reading of the will as a whole irresistibly leads to the conclusion that the testatrix intended to restrict the objects of her bounty, as to both real and personal property, to her lineal descendants, except as otherwise expressly provided; and, if we are correct in this conclusion, the terms ' heirs at law and next of kin ’ must be given such an interpretation as to effectuate the expressed intent of the testatrix.”
The cases most favorable to the contention of the appellants are Gilliam v. Guaranty Trust Co. (186 N. Y. 127) and United States Trust Co. v. Hoyt (150 App. Div. 621). A consideration of the factual situations in those cases indicates that there is nothing in either case evidencing an intention to exclude adopted children. In the Gilliam case, apparently, the donor of the trust was not related by blood to the beneficiary, and such donor appeared to be concerned only with the life beneficiary and was indifferent as to the disposal of the principal of the trust after her death. Judge Hiscock, writing for the Court of Appeals, said: “ 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 [35]*35law 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.”
In the Hoyt case, Rhoda E. Hoyt created a trust for the benefit of her son, Frank R. Hoyt, during his life, and in the event that his wife survived him, for the period of such survivorship for her benefit should she remain unmarried.
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Martin, P. J.
In this proceeding the parties seek the construction of certain provisions of the will of Anna Livingston Morton, deceased, disposing of real property situated within this State. The appeal is from the judgment in so far as it holds that the adopted children of Mary Morton, a daughter of the said Anna Livingston Morton, have no interest in the real property described in the complaint.
Anna Livingston Morton died August 14, 1918, a resident of the District of Columbia, leaving a will dated January 15, 1916, and two codicils, all of which have been admitted to probate in the District of Columbia. At the time the will and codicils were executed the husband of the testatrix, Levi P. Morton, and her four daughters were living. Two of her daughters, Alice and Edith, were married and had children. Her husband and three of her daughters survived the testatrix. The daughter Alice died before her mother and left six children, all of whom survived the testatrix.
Mary Morton, a daughter of the testatrix, died on April 20, 1932, a resident of Pennsylvania. She was unmarried and left no issue. She left her surviving two sisters and five children of her deceased sister, Alice. She also left her surviving two children whom she had adopted in Pennsylvania, Louis Peter Morton, adopted June 17, 1925, and Miriam Morton, adopted January 10, 1930. She [33]*33had also adopted in Pennsylvania, on November 21,1927, William Hayes Morton, but relinquished this infant on February 20, 1930, to an institution in California. He was thereafter adopted in California by William Hazlett Minor and his wife, and is now known as William Hazlett Minor, Jr.
By article fourth of the will of Anna Livingston Morton, the residue of her estate was given to her executor in trust to be held by it in as many equal shares as she should leave children her surviving or children predeceasing her, who should leave issue her surviving, the income of each share to be paid to the beneficiary thereof during her life. Upon the death of the beneficiary, the testatrix gave the share to the “ issue, if any,” and, in default of issue, to the beneficiary’s “ heirs at law and next of kin, to be equally divided among them, per stirpes and not per capita,” subject, however, to the execution by the beneficiary of certain powers conferred, including, by subdivision fourth, the power to the beneficiary leaving no issue to dispose by will of one-half of the principal of her share, the remaining half of said share to go to the beneficiary’s “ heirs at law and next of kin,” as above provided.
Mary Morton left a will dated May 5, 1930, which has been duly admitted to probate by the Surrogate’s Court of New York county. Under it she gave $10,000 in trust for the infant William Hayes Morton (now known as William Hazlett Minor, Jr.), and she exercised her power of appointment under the will of her mother by creating a trust for the benefit of her adopted children, Louis Peter Morton and Miriam Morton.
The trial court has ruled that none of Mary Morton’s adopted children were her “ heirs at law and next of kin,” within the intent and meaning of the will of her mother, Anna Livingston Morton; and further ruled that section 114 of the Domestic Relations Law bars the adopted children from taking “ as heirs at law and next of kin.”
On behalf of the adopted children it is contended that the plain presumption is that Anna Livingston Morton, by the words, “ heirs at law and next of kin,” intended the persons who would have been entitled by statute to the principal of Mary Morton’s trust fund had she died intestate owning such fund absolutely; that the whole tenor of the will confirmed that the testatrix had no other intention, and neither the fact that the adopted children were adopted after the death of Anna Livingston Morton, nor the fact that Mary Morton was only given power of appointment over one-half of her trust, is evidence of a contrary intention.
[34]*34The courts of this State have considered claims asserted by adopted children to gifts to “ heirs at law ” or “ next of kin ” and have decided in favor of the adopted children. (Gilliam v. Guaranty Trust Co., 186 N. Y. 127; United States Trust Co. v., Hoyt, 150 App. Div. 621; Bridenbaker v. Kissell, 215 id. 751; Kemp v. New York Produce Exchange, 34 id. 175.)
The test, however, is not the status of the adopted children at law but the intention of the maker of the will and the meaning of the language used therein. (New York Life Insurance & Trust Co. v. Viele, 161 N. Y. 11; Tillman v. Davis, 95 id. 17; Dodin v. Dodin, 16 App. Div. 42; Matter of Walter, 270 N. Y. 201.)
The courts of the domicile of the testatrix in this case have construed the meaning of the words “ heirs at law and next of kin,” as used by the testatrix in her will. In Rutherfurd v. American Security & Trust Co. (12 F. [2d] 155) the Court of Appeals for the District of Columbia, affirming the Supreme Court of the District, said: “ in our view, a reading of the will as a whole irresistibly leads to the conclusion that the testatrix intended to restrict the objects of her bounty, as to both real and personal property, to her lineal descendants, except as otherwise expressly provided; and, if we are correct in this conclusion, the terms ' heirs at law and next of kin ’ must be given such an interpretation as to effectuate the expressed intent of the testatrix.”
The cases most favorable to the contention of the appellants are Gilliam v. Guaranty Trust Co. (186 N. Y. 127) and United States Trust Co. v. Hoyt (150 App. Div. 621). A consideration of the factual situations in those cases indicates that there is nothing in either case evidencing an intention to exclude adopted children. In the Gilliam case, apparently, the donor of the trust was not related by blood to the beneficiary, and such donor appeared to be concerned only with the life beneficiary and was indifferent as to the disposal of the principal of the trust after her death. Judge Hiscock, writing for the Court of Appeals, said: “ 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 [35]*35law 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.”
In the Hoyt case, Rhoda E. Hoyt created a trust for the benefit of her son, Frank R. Hoyt, during his life, and in the event that his wife survived him, for the period of such survivorship for her benefit should she remain unmarried. Thereafter the principal was to go to issue, and, failing issue, to “ the persons who are then next of kin of my said son, Frank R., in the manner and proportion directed by the laws of the State of New York for the distribution of the estates of persons dying intestate.” The trust was created in 1896. It was known that two years before the date of the trust deed Frank and his wife had adopted an infant. In 1901 the donor made a will in which she left certain real property to Frank and his wife for fife and upon their deaths to the adopted child absolutely. Thus, it is clear that the donor had knowledge of the adoption at the time of the creation of the trust, and, furthermore, the trust deed contained a reservation for a right to amend the same. It was not amended, although it appears that a similar trust deed for another son was amended under the reserved right. The expression “ then next of ldn ” used in the deed is a significant recognition of the fact that the class of distributees might be changed from time to time to include or exclude adopted children, and indicates a willingness to have the selection made in accordance with the law in effect at the death of the beneficiary.
When Mrs. Morton made her will she had four children. One was married and had six children. Another was married and had five children. There was every probability that the other daughters would marry and have children. The grandchildren then in being and the prospective grandchildren would seem to have been as much objects of the beneficence of the testatrix as were her daughters. She provided a life income for each daughter with power to appoint not exceeding one-half the trust fund if she left no issue; she provided for the issue, if any survived, and specifically provided for the issue of any daughter who predeceased her. She set up limitations as to the surviving husband or wife of a grandchild. She made no reference to the laws of this State or any other jurisdiction providing for the distributions of estates of persons dying intestate. No adoption had been accomplished, and, apparently, the possibility thereof was not considered. There is nothing to indicate that she intended to include distributees as defined by the statute, but, on the contrary, used the expression “ heirs at law and next of kin ” in its primary meaning.
[36]*36The will as a whole evidences an intention that at least one-half of the share set apart for the benefit of a daughter, on her death without issue, should go to her collateral relatives — her surviving sisters and the issue of any deceased sister — as her heirs at law and next of kin. These were the only persons whom the testatrix could have had in mind when the will was made.
Section 114 of the New York Domestic Relations Law provides that adopted children shall have all the rights of inheritance of natural children, with an exception which is set forth in the section as follows: “ 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 person adopted is not deemed the child of the foster parent so as to defeat the rights of remaindermen.”
Speaking of this exception, the trial court said: “ The phrase used in the statute as to a foster parent ‘ dying without heirs ’ is not an apt one. These words cannot have been intended to mean dying without leaving any one who might inherit. It has been construed to mean ‘ dying without children ’ (Von Beck v. Thomsen, 44 App. Div. 373) and undoubtedly includes a provision in a will as to a fife tenant dying without issue.”
The appellants concede that they are not entitled to take as “ issue,” but they claim as “ heirs at law ” and maintain that they are, in fact, remaindermen whose rights are not to be defeated. To deny them the right to take as “ children,” but permit them to take as “ heirs at law,” would frustrate the purpose of the exception. We cannot believe that the Legislature intended such a result. The statute is aimed at the possibility of adopted children cutting off contingent remainders, and its purpose is to prevent this regardless of the capacity in which the adopted children claim. The declared limitation by the power of appointment over one-half of a daughter’s trust share should not be thwarted long after the death of the testatrix by the expedient of the daughter’s adopting children to take one-half by appointment and the other half as her heirs at law and next of kin.
The judgment so far as appealed from should be affirmed, with costs.
Glennon and Dore, JJ., concur; O’Malley and Untermyer, JJ., dissent and vote to reverse and direct judgment in favor of the appellants.