Frey v. Nielson

• Decision Date: 26 March 1926
• Citation: 132 A. 765
• Parties: FREY et al. v. NIELSON et al.
• Court: New Jersey Court of Chancery

132 A. 765

FREY et al.

v. NIELSON et al.

Court of Chancery of New Jersey.

March 26, 1926.

Suit by William Frey and another against Edith Nielson and others. Decree advised.

Lehlbach, Johnson & Ormond, of Newark, for complainants.

Louis J. Beers, of Newark, for defendants.

CHURCH, V. C. This is a suit to determine whether Edith Nielson, a child of Christian Nielson, adopted under the law of the state of New York, can inherit land in the state of New Jersey. Two questions are propounded by counsel: First, assuming the regularity of the adoption in New York, can this child inherit; second, if she can, are the proceedings regular under the New York statutes.

First. Can a child adopted in New York inherit land in New Jersey?

It has been suggested that, under the so-called full faith and credit clause of the United States Constitution (section 1, art. 4), the courts of the state are bound to give effect to adoption proceedings of another state. This, however, has been definitely settled by the Supreme Court of the United States in Hood v. McGehee, 35 S. Ct. 718, 237 U. S. 611, 59 L. Ed. 1144 (1914). It was in this case held that they are not required so to do. This case followed Olmsted v. Olmsted, 30 S. Ct. 292, 216 U. S. 386, 54 L. Ed. 530, 25 L. R. A. (N. S.) 1292 (1909). Here it was held that the full faith and credit clause does not require the courts of one state to give effect to a statute of another state legitimatizing children born out of wedlock. In the Hood Case the court rested its decision on the ground that the Alabama statute of descents, as construed by the Supreme Court of that state, excluded children adopted by proceedings in other states. The court says, and this is significant, "Alabama is the sole mistress of the devolution of Alabama land by descent."

The next question that arises is how far the public policy of this state will recognize as a matter of comity a foreign adoption in determining on whom its own law of descent devolves the title of lands within its boundaries. It should be noted that this question is one of novel impression in New Jersey. I have been unable to find any ease directly in point in our reports, although in the case of Dayton v. Adkisson, 17 A. 964, 45 N. J., Eq., 603, 4 L. R. A. 488, 14 Am. St. Rep. 763, this court dealt with a somewhat similar situation involving the right of a child rendered legitimate in Pennsylvania to inherit land in New Jersey. It was there decided that such child could inherit. This decision was rendered long before the United States Supreme Court cases cited above, that is, in 1889, and never has been reviewed by our Court of Errors and Appeals. Comity between nations and states is not the right of one state to have its statutes and judicial decisions followed in another state, but a courtesy, as it were, extended by one state to another in the construction of statutes and decisions of a foreign state if not in contravention of its own statutes and decisions." Corpus Juris, 1235, and cases cited.

An examination of the cases in other states reveals a decided conflict of authority as to how far courts shall go in the enforcement of this doctrine of comity. On this question see notes contained in Lawyers' Reports, annotated to Irving v. Ford, 65 L. R. A. 177, to Brown v. Finley, 21 L. R. A. (N. S.) 679, and to Anderson v. French, L. R. A. 1916A, 666. The cases of Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321 (cited in Dayton v. Adkisson. supra), and Miller v. Miller, 91 N. Y. 315, rest squarely upon the application of the rule of comity. There is, however, another line of cases holding that only the law of the situs governs in matters of the descent of land. These cases all follow the principle laid down in Doe d. Birtwhistle v. Vardill, 2 Cl. & Fin. 570-600, 5 Eng. Rul. Cases 748 (House of Lords, 1840). A careful examination of these cases both pro and con indicates that the application of the doctrine of comity in each instance was largely governed by an analysis of the law of descent prevailing in the state where the opinion was rendered.

As our law of descent is so clearly an outgrowth of the English common law, a consideration of the Birtwhistle Case is important. It was there held that a child born in Scotland, of parents domiciled there, who at the time of his birth were not married, but who afterwards intermarried in Scotland (there being no lawful impediment to their marriage either at the time of the birth or afterwards), although legitimate by the law of Scotland, is not by such marriage rendered capable of inheriting lands in England. The reason for the decision is given by Lord Chief Justice Tindal, as the unanimous opinion of the judges in whose presence the case was argued before the Lords (who adopted it as their own) as follows:

"My Lords, the grounds and foundation upon which our opinion rests are briefly these: That we held it to be a rule or maxim of the law of England, with respect to the descent of land in England from father to son, that the son must be born after actual marriage between his father and mother; that this is a rule juris positivi as are all the laws which regulate succession to real property, this particular rule having been framed for the purpose of excluding, in the descent of land in England, the application of the rule of the civil and canon law, by which the subsequent marriage between the father and mother was held to make the son born before marriage legitimate; and that this rule of descent being a rule of positive law annexed to the land itself, cannot be allowed to be broken in upon or disturbed by the law of the country where the claimant was born, and which may be allowed to govern his personal status as to legitimacy, upon the supposed ground of the comity of nations."

The opinion goes on to apply the rule in the so-called Statute of Merton, 20 Hen. III, c. 9 (anno 1235), which is much discussed in the leading American cases on the subject. It should be noticed that this so-called "statute" was not a statute at all, but an entry on the minutes of Parliament of the refusal by the English lords to comply with the prayer of the bishops that the rule of descent of lands in England be assimilated to the rule of the canon law, above referred to, and "to change the laws of the realm, which hitherto had been used...