Delaney v. First Nat. Bank in Albuquerque

• Decision Date: 03 September 1963
• Docket Number: No. 7221,7221
• Citation: 73 N.M. 192,386 P.2d 711,1963 NMSC 160
• Parties: Esther DELANEY, Administratrix of the Estate of Paul Delaney, deceased, Esther Delaney, as widow of Paul Delaney, deceased, and Mrs. Celia Thompson, as the lawful child and heir of Paul Delaney, deceased, Plaintiffs-Appellants, v. The FIRST NATIONAL BANK IN ALBUQUERQUE, a corporation, Defendant-Appellee, Francis Delaney, Intervenor-Appellee.
• Court: New Mexico Supreme Court

Page 711

386 P.2d 711

73 N.M. 192

Esther DELANEY, Administratrix of the Estate of Paul Delaney, deceased, Esther Delaney, as widow of Paul Delaney deceased, and Mrs. Celia Thompson, as the lawful child and heir of Paul Delaney, deceased, Plaintiffs-Appellants, v. The FIRST NATIONAL BANK IN ALBUQUERQUE, a corporation Defendant-Appellee Francis Delaney, Intervenor-Appellee.

No. 7221.

Supreme Court of New Mexico.

Sept. 3, 1963.

Rehearing Denied Dec. 4, 1963.

B. J. Sholer, F. L. Nohl, Albuquerque, for appellants.

Rodey, Dickason, Sloan, Akin & Robb, William C. Schaab, Albuquerque, for defendant-appellee, First Nat. Bank in Albuquerque.

W. A. Keleher, William B. Keleher, Albuquerque, for intervenor-appellee, Francis Delaney.

CHAVEZ, Justice.

Esther Delaney, as the administratrix of the estate of Paul Delaney, deceased, and as his widow, and Mrs. Celia Thompson, as the lawful child and heir of Paul Delaney, deceased, filed suit against The First National Bank in Albuquerque, as trustee, for an accounting and for distribution of the corpus of the trust which had been established by a codicil to the last will and testament of Lawrence T. Delaney, deceased. Francis Delaney, as residual beneficiary under the will of Lawrence T. Delaney, intervened. After trial to the court, without a jury, the issues were decided in favor of the intervenor, Francis Delaney. This appeal followed.

Lawrence T. Delaney's last will and testament was executed on November 29, 1945. After making certain specific bequests, none of which are controverted here, the residuary was devised and bequeathed in equal shares to his adopted sons, Francis Delaney and Paul Delaney, or the lawful heirs of their bodies in the event they died prior to the will becoming effective. The will further provided that if Paul Delaney were to predecease the testator, without leaving lawful heirs of his body surviving, then the part of the residuary which would go to him under the will is to go to Francis Delaney, or to the heirs of his body.

By a codicil to the will, dated April 17, 1946, Lawrence T. Delaney left one-half of the residue of the estate to Francis Delaney and the other one-half to the defendant, The First National Bank in Albuquerque, as trustee for the use and benefit of Paul Delaney, or his surviving lawful child or children if he be dead, and with the provision that Paul Delaney was to receive from the trustee the sum of $50 per month, the trustee to have the right to pay a greater sum to, or for, or on behalf of Paul Delaney in the event of an emergency such as serious illness or unusual medical services.

By a second codicil to the will, dated July 30, 1946, Lawrence T. Delaney changed the designation of the executors named in the will from Francis Delaney and Paul Delaney to Francis Delaney alone.

Item (b) of the first codicil states:

'In event that Paul Delaney shall die before this will becomes effective without leaving a lawful child or children, or shall die after the will becomes effective leaving no lawful child or children, then it is my will that Francis Delaney (or his children if he be dead) shall in all things succeed Paul Delaney hereunder, and shall take everything that Paul Delaney would have taken had he lived, excepting that if Paul Delaney be dead, and Francis Delaney shall inherit his interest, Francis Delaney shall take such interest outright and the provision I have made for a trusteeship for Paul Delaney shall be disregarded and terminated.'

At the time of the making of the will on November 29, 1945, and the codicils on April 17, 1946, and July 30, 1946, Francis Delaney was married and had three natural children, while Paul Delaney was unmarried. On December 23, 1946, Paul Delaney married Ether Delaney, who had previously been married to and divorced from Francis Klayer and she had four natural children by Mr. Klayer, one of whom is Celia Thompson, nee Celia Frances Klayer.

Lawrence T. Delaney died on February 9, 1947, in Albuquerque, New Mexico. His will and the codicils thereto were admitted to probate on March 25, 1947, and the estate was probated. The defendant, The First National Bank in Albuquerque, received one-half of the residue of the estate, as trustee.

On June 27, 1949, in the county court in and for the city and county of Denver, Colorado, Paul Delaney adopted Celia Thompson as his legally adopted child and heir at law. At the time of the adoption, Celia Thompson was unmarried, 25 years of age, and resided in Denver, Colorado, and Paul Delaney was 39 years of age. Celia Thompson married Samuel Thompson in 1956. In 1943-1944, Celia Thompson lived with her mother in New Mexico from four to six months and spent her two-weeks vacation every other year in New Mexico from 1946 to 1949.

Paul Delaney died intestate on April 28, 1960, leaving surviving him his wife, Esther Delaney, and his adopted child, Celia Thompson. He had no natural children.

Both Francis Delaney and Paul Delaney were the adopted sons of Lawrence T. Delaney. Neither Paul Delaney nor Francis Delaney knew of the contents of the will until it was read after the death of Lawrence T. Delaney. Lawrence T. Delaney did not discuss the will with Francis Delaney or Paul Delaney prior to his death. The testator had no natural children.

In the court below, Esther Delaney contended that she, as administratrix of the estate of Paul Delaney, deceased, was entitled to the corpus of the trust established in the codicil to the will of Lawrence T. Delaney because the condition of the trust had been fulfilled, i. e., Paul Delaney died leaving a surviving lawful child, and that the trust was terminated by the demise of Paul Delaney. Esther Delaney contended that she, individually and as the widow of Paul Delaney, was entitled to the corpus of the trust for the same reasons. Celia Thompson contended that she, as the adopted daughter of Paul Delaney, was entitled to the trust for the same reasons. Francis Delaney contended, on the other hand, that the alleged adoption of Celia Thompson has no validity under New Mexico law, because of the relative ages of Paul Delaney and Celia Thompson, and that, therefore, under New Mexico law, Paul Delaney did not leave surviving him a lawful child, with the result that Francis Delaney is entitled to the corpus of the trust.

Resolution of this appeal is dependent upon the correct answers to the following two questions: (1) Will New Mexico recognize the Colorado adoption of Celia Thompson by Paul Delaney so that he left surviving him a lawful child? and (2) if New Mexico will give credence to the Colorado adoption, what effect does this have on the disposition of the trust property?

At the time of the adoption of Celia Thompson by Paul Delaney in Colorado, New Mexico had a statute, Sec. 22-2-13, N.M.S.A., 1953 Comp., which permitted the adoption of an unmarried adult by an adult person, provided the person adopting was at least twenty years older than the person adopted. Since Paul Delaney was only thirteen years older than Celia Thompson, who was twenty-five years of age at the time, the adoption could not have been accomplished in New Mexico. Thus, intervenor-appellee contends that the Colorado adoption was contrary to the public policy in New Mexico. However, the fact that a judgment entered by a foreign court could not have been entered by a New Mexico court, because it would have offended the public policy of New Mexico, will not permit the courts of New Mexico to deny it full faith and credit as required under Art. IV, Sec. 1, U.S. Constitution. The rule was most clearly stated in Hieston v. National City Bank of Chicago, 51 App.D.C. 394, 280 F. 525, 24 A.L.R. 1434:

'* * * with complete jurisdiction of the subject-matter and the parties, a judgment shall be accorded the same faith and credit in every court within the United States as it has by the law and usage of the courts in the state or territory where it was originally rendered; and this is true, though the cause of action upon which the judgment is based is against the law and public policy of the state or territory in which enforcement is sought.'

In the case of In re Morris' Estate, 56 Cal.App.2d 715, 133 P.2d 452, it was held that a decree of adoption of an adult in Rhode Island, where such an adoption was authorized by statute, must be given full faith and credit in California, notwithstanding that an adoption of an adult was contrary to California policy. The law of California authorizes only the adoption of minor children and it is legally impossible to adopt an adult under the California law. Compare, Hughes v. Fetter (1951), 341 U.S. 609, 71 S.Ct. 980, 95 L.Ed. 1212.

In Zanzonico v. Neeld, 17 N.J. 490, 111 A.2d 772, cited by appellee, the court held that where an adoption was validly effected in Italy by American residents, so as to make it possible to bring the child to America, such decree was recognized by the New Jersey court for inheritance purposes, as against the argument that such decree should not be recognized, since the child had not resided with the parties seeking the adoption for a period of one year prior to the hearing of the petition for adoption, as required by New Jersey law.

It is of interest to note that in New Jersey the courts have been set straight by statute. Chapter 234, Laws 1952, N.J.S.A., Sec. 9:3-15, provides:

'1. The entry of a judgment or decree of adoption in any State, territory or possession of the United States, including the District of Columbia, shall have the same force and effect as though such judgment or decree of adoption had been rendered and entered in this State. The provisions of this act shall be applicable to judgments or decrees of adoption heretofore entered, as well as to such judgments or decrees as shall hereafter be entered in any such State, territory or possession of the United States, including the District of Columbia.'

Although some courts regard the rule as to recognition of a...