MATTER OF ESTATE OF WALKER, 64 N.Y.2d 354, 486 N.Y.S.2d 899, 476 N.E.2d 298 (Ct.App. 1985)

In the Matter of the ESTATE OF James J. WALKER, Deceased.

Mary A.W. Narita et al., Appellants,

Richard H. Bernstein, Individually and on Behalf of Warshaw, Burstein Cohen Schlesinger & Kuh, Respondents.

Court of Appeals of New York.

Feb. 14, 1985.

[486 N.Y.S.2d 899, 900]

    Bertram E. Hirsch, for appellants.

    Jay A. Kranis and Barbara L. Levine, New York City, for respondents.

    SIMONS, Judge.

    Petitioners, Mary Ann Walker Narita and James J. Walker, II, are the adopted children of former Mayor James J. "Jimmy" Walker of New York City and beneficiaries of his estate.  They instituted this will construction proceeding to obtain two adoption decrees in respondents' possession which they claim were bequeathed to them by their father and which identify their natural mother or mothers.

    The issue presented is whether the testator intended to bequeath the adoption decrees to petitioners by his will and, if he did, whether enforcement of such a bequest is consistent with the public policy of this State.  The Surrogate denied the application and dismissed the petition.  She held the decrees were not personalty transferrable by will but that enforcement would be denied because disclosure of their contents would violate the public policy of New York and Illinois (the State of the adoptions).  The Appellate Division affirmed for the reasons stated by the Surrogate with one Justice dissenting (see, 99 A.D.2d 448, 471 N.Y.S.2d 243).  We now affirm.*

    The testator, James J. Walker, and his wife, Violet Walker, adopted petitioner, Mary Ann Walker Narita, in Cook County, Illinois, on or about March 28, 1936.  In July of the following year, they adopted James J. Walker, II in the same jurisdiction.  After the adoptions, Walker obtained copies of the decrees and, upon his return to New York, entrusted them to his lawyer, Sidney Harris.  Walker died in New York City on November 18, 1946.  He left a last will and testament dated October 8, 1945 which was admitted to probate in New York County on December 12, 1946.  Walker's will appointed Harris as executor of his estate and guardian of his children who were minors at the time of his death.  Upon Harris' death, Charles L. Sylvester, his partner, replaced him.  Both Harris and Sylvester have since died and respondent [486 N.Y.S.2d 899, 901] law firm is the successor to the law firm of Sylvester and Harris.  Respondent Richard H. Bernstein is its trusts and estates partner.

    Petitioners contend that upon reaching their majority, they were entitled to possession of the adoption decrees.  To support this contention, they rely on the following paragraphs of decedent's will:

    "third.   I give, devise and bequeth to my beloved children, james j. walker and mary ann walker, any and all my personal property, including furnishings, articles of personal attire and memorabilia of every kind, nature and description."

    "sixth.  All the rest, residue and remainder of my properties, I hereby give, devise and bequeth to my children, james j. walker and mary ann walker, or the survivors of them, share and share alike."

Respondents' principal contention is that the testator did not bequeath the property to petitioners, and that even if he did the transfer with the resulting disclosure of the identity of petitioners' mantural mother or mothers would be contrary to public policy of New York as expressed in Domestic Relations Law § 114.

    Analysis starts with the general rule that the law permits a person possessing testamentary capacity to dispose of property to any person in any manner and for any object or purpose so long as such disposition is not illegal or against public policy (Matter of Watson, 262 N.Y. 284, 299, 186 N.E. 787; Hollis v. Drew Theol. Seminary, 95 N.Y. 166, 172; Matter of Hughes, 225 App.Div. 29, 31, 232 N.Y.S. 84, affd. 251 N.Y. 529, 168 N.E. 415; 94 C.J.S., Wills, § 93).  The court's job in overseeing the administration of a testator's estate is to implement the testamentary plan the testator intended, determining intent from the words used in the will (Matter of Cord, 58 N.Y.2d 539, 544, 462 N.Y.S.2d 622, 449 N.E.2d 402; Matter of Jones, 38 N.Y.2d 189, 193, 379 N.Y.S.2d 55, 341 N.E.2d 565; Matter of Buechner, 226 N.Y. 440, 444, 123 N.E. 741) and construing them according to their everyday and ordinary meaning (Matter of Wilhelm, 60 A.D.2d 32, 36, 400 N.Y.S.2d 402, affd. 46 N.Y.2d 947, 415 N.Y.S.2d 413, 388 N.E.2d 787; Matter of Pelton, 190 Misc. 624, 626, 74 N.Y.S.2d 743).  Once the testator's intent is determined, it must control the disposition of the property unless it is contrary to some public policy or established law.

    Construing testator's will according to these rules, we determine that he intended to bequeath the adoption decrees to petitioners.  Testator did not say so explicitly, but the gift is encompassed within two paragraphs of the will, paragraph third which bequeaths to petitioners "any and all my personal property" and paragraph sixth, the residuary clause which names petitioners as the sole objects of his bounty and conveys all the remainder of testator's property to them.  We construe the phrase "all my personal property" in the third paragraph broadly as indicative of an intent to dispose all tangible personalty, known or unknown (see, Matter of Baker, 164 Misc. 622, 624-625, 1 N.Y.S.2d 72).  That construction is consistent with EPTL 3-5.1 which defines personal property as any property other than real property, including tangible and intangible things and would include documents such as adoption decrees (see also, 4 Page, Law of Wills § 33.24, p. 334).  This result is not altered by the attorney's affidavit contained in the record in which he alleges that Walker entrusted the decrees to Harris during his lifetime, an act which he contends permits an inference that they were intended to be confidential.  The will provisions are unambiguous and the affidavit is therefore inadmissible (see, Matter of Cord, 58 N.Y.2d 539, 544, 462 N.Y.S.2d 622, 449 N.E.2d 402, supra; Matter of Wells, 113 N.Y. 396, 401, 21 N.E. 137).  Equally unavailing is respondents' contention that the doctrine of ejusdem generis should be applied to paragraph third to limit the general bequest of "all my personal property" to property similar in kind to the specifically enumerated items which follow-furnishings, personal attire and memorabilia.  The words of a general bequest followed by enumerated articles are not limited to things similar to [486 N.Y.S.2d 899, 902] the specific items listed (see, Matter of Reynolds, 124 N.Y. 388, 397, 26 N.E. 954).

    Notwithstanding testator's intent, the legacy may not be given effect because we conclude that to do so would be contrary to the public policy of New York.  We do not make that determination out of any sense of what is right for these litigants or of what satisfies the general public interest.  The courts have no power to invalidate legacies or contracts because of their subjective view of what is sound policy or good policy.  "[W]hen we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records" (People v. Hawkins, 157 N.Y. 1, 12, 51 N.E. 257; see also, Glaser v. Glaser, 276 N.Y. 296, 302, 12 N.E.2d 305; Mertz v. Mertz, 271 N.Y. 466, 472, 3 N.E.2d 597; Straus & Co. v. Canadian Pac. Ry. Co., 254 N.Y. 407, 173 N.E. 564; Hollis v. Drew Theol. Seminary, 95 N.Y. 166, supra).  Those sources express the public will and give definition to the term (see, Muschany v. United States, 324 U.S. 49, 66, 65 S.Ct. 442, 451, 89 L.Ed. 744; Vidal v. Girard's Executors, 2 How. [43 U.S.] 127, 11 L.Ed. 205).  A legacy is contrary to public policy, not only if it directly violates a statutory prohibition, as the dissent suggests, but also if it is contrary to the social judgment on the subject implemented by the statute.

    Illustratively, the courts will not enforce legacies and devises when enforcement would violate legal rules on the disposition of property such as the rule against perpetuities or the rules against creating an unlawful restraint on the power of alienation (see, e.g., Kalish v. Kalish, 166 N.Y. 368, 59 N.E. 917; Hacker v. Hacker, 153 App.Div. 270, 138 N.Y.S. 194), which attempt to bequeath the proceeds of a wrongful death action held for the exclusive benefit of the statutory distributees (EPTL 5-4.4; see, Matter of McHugh, 226 App.Div. 153, 234 N.Y.S. 541), or which attempt to convey an interest in a joint tenancy (Levenson v. Levenson, 229 App.Div. 402, 242 N.Y.S. 165).  Similarly, the courts will not enforce gifts conditioned on conduct which violates social policy, such as restricting a legatee's right to marry (Matter of Lieberman, 279 N.Y. 458, 18 N.E.2d 658), or encouraging divorce or separation (Matter of Haight, 51 App.Div. 310, 64 N.Y.S. 1029; but cf. Matter of Hughes, 225 App.Div. 29, 232 N.Y.S. 84, affd. 251 N.Y. 529, 168 N.E. 415, supra).  And although a testator may legally dispose of certain property, statute or public policy may limit the manner in which he may dispose of it.  Thus, a testator may dispose of his own body or direct the method or place of its burial, but he may not require that he be buried in an unauthorized place (see, Public Health Law § 4200 et seq.) and one court has held that although a testator has the power to devise real property, it woud not enforce a direction that the trustee demolish the improvements and leave the land vacant for a number of years because to do so would violate the statutory policies against waste found in the Real Property Actions and Proceedings Law (see, Matter of Pace, 93 Misc.2d 969, 400 N.Y.S.2d 488).

    The bequest of these decrees contravenes none of these policies: the gift of the decrees is absolute and their physical transfer does not violate any rule of property or tenure.  This gift is contrary to public policy because consummation of the transfer is sought for the purpose of discovering information which it is against the public policy of New York to disclose without good cause.  That public policy is expressed in Domestic Relations Law § 114 (see also, Social Services Law § 372; Public Health Law § 4138-b).
[486 N.Y.S.2d 899, 903]
    Section 114 provides that all "papers" pertaining to an adoption shall be kept as a permanent "sealed" court record and that no "person shall be allowed access to such sealed records *** except upon an order *** of the court in which the order [of adoption] was made".  The statute further provides that "[n]o order for disclosure or access and inspection shall be granted except on good cause shown and on due notice to the adoptive parents and to such additional persons as the court may direct."  Section 115 does not apply to foreign adoption decrees and these were entered in Illinois befre New York's statute became effective in 1938.  The policy underling it is pertinent, however, because the statute existed at the time of the decedent's death in 1946 and thus the policy it expresses applies to this construction proceeding (see, Matter of Samson, 233 App.Div. 173, 251 N.Y.S. 433, affd. 257 N.Y. 358, 178 N.E. 557; see also, NY Jur 2d, Domestic Relations, § 5 [questions relating to adopted children are controlled by the law in effect at the decedent's death]).  Moreover, petitioners have called upon the rights of parties to this proceeding and therefore we properly consider the social judgments embodied in our statutes.

    Undoubtedly, section 114 expresses a public policy of this State which has evolved over the years.  From 1873 until 1924 the Legislature permitted public access to adoption records (Alma Socy. v. Mellon, 601 F.2d 1225, 1229 n. 4, 1235 (2d Cir.)) but in 1924 the Legislature authorized the court, in its discretion, to order adoption records sealed (L.1924, ch. 323, § 3 [Domestic Relations Law § 113]).  Confidentiality became mandatory in 1938 (L.1938, ch. 606, § 1 [Domestic Relations Law § 114]) and since then the Legislature on several occasions has adopted amendments to assure it (see, e.g., L.1968, ch. 320, § 3; L.1968, ch. 365, § 1; L.1968, ch. 1038, § 4).  It recently addressed the subject in 1983 by adding Social Services Law § 373-a (L.1983, ch. 898).  In the former the Legislature provided that adoptive parents must be furnished a medical history of the natural parents, but only after identifying information had been removed from the records to preserve the natural parents' confidentiality.  It also amended the Public Health Law that year by creating an adoption information registry, but contained in the statute were carefully constructed safeguards limiting the disclosure of identities.  In Matter of Linda F.M., 52 N.Y.2d 236, 239, 437 N.Y.S.2d 283, 418 N.E.2d 1302, we set forth the reasons for legislative concern: sealed records shield the adopted child from possibly disturbing facts concerning the child's birth or parentage; sealing insures that the natural parents will not be able to locate the child and interfere with the relationship between the child and the adoptive parents; and, finally, sealing protects the identity and privacy of the natural parents.  Relevant here is the last ground, the assurance acquired by the natural mother or mothers that their identity will not be distrubed.  It is irrelevant that the information was available to petitioners at one time or that testator could have transferred the decrees to them during his lifetime because neither course was actually pursued.  Petitioners seek the aid of the courts to obtain the decrees and discover their contents.  Disclosure violates the existing public policy of New York, however, and the machinery of the courts is not available to themfor that purpose (see, Matter of Johnson, 59 N.Y.2d 461, 465 N.Y.S.2d 900, 452 N.E.2d 1228; Hollis v. Drew Theol. Seminary, 95 N.Y. 166, 172, supra; 94 C.J.S., Wills, § 93).

    Accordingly, the order of the Appellate Division should be affirmed, with costs.

    JASEN, Judge (dissenting).

    The majority candidly concedes that the former Mayor Walker's personal copies of the respective adoption decrees pertaining to his children were to be included as "any and all of my personal property" bequeathed to petitioners by his will, but holds, "[n]otwithstanding testator's intent, the legacy may not be given effect because [486 N.Y.S.2d 899, 904] *** to do so would be contrary to the public policy of New York" (Domestic Relations Law § 114) of protecting "the identity and privacy of the natural parents."

    What public policy is involved in this proceeding where petitioners seek only private personal property bequeathed to them by their father?  This case does not involve adoptees who, in compliance with or in contravention of Domestic Relations Law § 114, seek access to sealed court records of a New York adoption proceeding.  Rather, this case involves construction of a will probated in the courts of this State to determine whether the testator intended the copies of the Illinois adoption proceedings, part of his personal papers which were lawfully obtained by him, to pass on to the petitioners as part of his personal property.

    The majority accords Domestic Relations Law § 114 an overly expansive reach by extending the protections of the statute beyond official sealed adoption records to personal papers in private hands.  Where, as here, there exist governing constitutional or statutory provisions, they delineate the outer boundaries of what is the public policy of this State.  (Straus & Co. v. Canadian Pac. Ry. Co., 254 N.Y. 407, 413 173 N.E. 564; Messersmith v. American Fid. Co., 232 N.Y. 161, 163, 133 N.E. 432 [Cardozo, J.] cf. Gellhorn, Contracts and Public Policy, 35 Colum.L.Rev. 679.)  Such expressions of public policy limit and guide the judiciary as well as private litigants.  Hence, the majority imposes an impermissible restriction upon the testamentory devolution of personalty and an unauthorized restraint upon the free dissemination of information contained in and transmitted by the private papers of the testator's estate.

    EPTL 3-5.1 defines personal property as any property other than real property.  Thus, by bequeathing "any and all of my personal property" to petitioners, the language clearly indicates the testator's intent thereby to dispose of all personal property, including personal papers, unless manifestly excluded.  Indeed, under the rationale of the majority, the testamentary disposition would be defeated even if the legacy had bequeathed "any and all of my personal property, including my personal copies of Illinois adoption records relating to my beloved children."  Applying the EPTL to the testamentary provision in question, that is precisely what was bequeathed.

    The irrelevance of the rationale of the majority's public policy holding pertaining to the alleged privacy rights of the petitioners' natural parents is best illustrated by the fact that the State of Illinois, the situs of the adoptions, did not extend protection to such privacy interests until 1961, approximately 25 years after the adoptions had taken place and some 15 years after the legacy of Mayor Walker's will had vested in the petitioners.*  Moreover, the fact which perhaps most undermines the public policy rationale is that Mayor Walker, without violating any law of New York or Illinois, could have made an inter vivos transfer of the copies of the adoption decrees and the information contained therein to the petitioners.  Public policy considerations should not be extended to transfers of personal property, including personal papers as we have here, to legatees pursuant to will.

    The authorities relied upon by the majority, in support of its position that public policy may be defined in a manner beyond the text of the statute, are, in reality, sup [486 N.Y.S.2d 899, 905] portive of a view which strongly disfavors government intrusion into the testamentary disposition of private property and which recognizes that the definition of public policy must be grounded in the unembellished words of the statute.  In Matter of Johnson, 59 N.Y.2d 461, 465 N.Y.S.2d 900, 452 N.E.2d 1228, this court, albeit upon 14th Amendment grounds, permitted the machinery of the courts to be utilized for the purpose of enforcing gender restrictive provisions in private charitable trusts, notwithstanding the finding that the eradication of gender-based discrimination is an important public policy of this State. (Matter of Johnson, supra at p. 472, 465 N.Y.S.2d 900, 452 N.E.2d 1228.)

    In Hollis v. Drew Theol. Seminary, 95 N.Y. 166, 171-172, this court articulated  classic exposition upon the role of the judiciary in defining public policy.  In Hollis, it was said: "It is difficult to define and limit the power thus to enforce public policy which is not found in the statute law, and it should be exercised only in clear cases, and generally within limits already defined by decisions of acknowledged authority, based upon rules of the commonlaw.  There is certainly no occasion for stretching the power so as to apply it to new or doubtful cases in a State where the legislature is in session one-third of the year, and thus competent to indicate the public will as to any line of supposed public policy *** Whatever the law condemns is against the policy of the law, and whatever the law expressly, albeit unwisely, permits, cannot be condemned by the courts as against public policy."  (Hollis v. Drew Theol. Seminary, 95 N.Y. 166, 171-172, supra.)  Thus, the cases relied upon by the majority certainly do not authorize this court to judicially engraft an amendment to Domestic Relations Law § 114 to enjoin transmittal of private papers, as well as sealed court records.

    In sum, the public policy of New York is that the testator can dispose of property as he or she sees fit, so long as the disposition violates no law of the State.  Since the copies of the adoption decrees at issue here were properly and lawfully obtained by the testator and could have been transferred to the petitioners during his lifetime, and were, as the majority concedes, part of his personal property at the time of his death, I would reverse the order of the Appellate Division and remand to the Surrogate's Court, New York County, to grant the relief requested in the petition.

    WACHTLER, C.J., and MEYER and KAYE, JJ., concur with SIMONS, J.

    JASEN, J. dissents and votes to reverse in a separate opinion.

    ALEXANDER, J., taking no part.

    Order affirmed, with costs.

[Footnote *]  Petitioners are at liberty to seek disclosure of the contents of the records in Illinois, of course.

[Footnote *]  From 1873 to 1924, adoption records in New York were public.  (Alma Socy. v. Mellon, 601 F.2d 1225, 1229, n. 4 (2d Cir.), cert. denied 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426 [see, L.1924, ch. 323, Domestic Relations Law (former) § 113].)  Nothing in chapter 323 suggests that adoption records created prior to July 1, 1924, the effective date of the statute, were to be sealed.  Moreover, there is authority for the proposition that the effect and disposition of adoption records are governed by the law in effect at the time of the adoption.  (Matter of MacEwan, 280 App.Div. 193, 194, 112 N.Y.S.2d 644.)  Illinois, the State with the most significant contacts with the adoptions at issue, did not establish the confidentiality of adoption records until 1961.  The public policy of Illinois should not be applied retroactively by this State inasmuch as this State's own public policy, establishing the confidentiality of adoption records after 1924, is itself not to be given retroactive effect.

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