Gardner v. Hall

• Decision Date: 23 June 1942
• Docket Number: 140/527.
• Citation: 26 A.2d 799,132 N.J.Eq. 64
• Parties: GARDNER v. HALL et al.
• Court: New Jersey Court of Chancery

26 A.2d 799

132 N.J.Eq. 64

GARDNER

v. HALL et al.

140/527.

Court of Chancery of New Jersey.

June 23, 1942.

[Copyrighted material omitted.]

Syllabus by the Court.

1. Adoption was unknown to the common law and is purely statutory.

2. Statutes authorizing the adoption of children, being in derogation of the common law, are to be strictly construed.

3. Our adoption statute presently in force is R.S. 9:3-1 et seq., N.J.S.A. 9:3-1 et seq. The language of this act clearly distinguishes between two classes of parents —natural parents and adoptive parents. The words "parent" and "surviving parent" as used in Section 9 of this statute refer to the natural parent and not to an adoptive parent.

4. It is a universally recognized rule of statutory construction that where there are different statutes in pari materia, though made at different times, and not referring to each other, they shall be taken and construed together as one system, and as explanatory of each other.

5. Therefore, in order to determine the rights of an adoptive parent in connection with the appointment of a testamentary guardian of an adopted child by its natural father, it is proper to consider not only the act concerning adoption (R.S. 9:3-1 et seq., N.J.S.A. 9:3-1 et seq.), but also the act relating to the appointment of fiduciaries, including testamentary guardians (R.S. 3:7-1 et seq., N.J.S.A. 3:7-1 et seq.), and the act concerning the care, custody, guardianship and support of children in general (R.S. 9:2-1 et seq., N.J.S.A. 9:2-1 et seq.), all of which are related.

6. The right of a father to appoint a testamentary guardian for his infant child has existed in this state by statute since 1795 (Paterson Laws, 189, 192); but it was not until 1871 (P.L.1871, p. 23) that the consent of the mother to such appointment was required, and it was not until 1928 (P.L. 1928, p. 16, N.J.S.A. 3:7-14, 3:7-15, 3:7-20,) that the mother, the father being alive, was given the same right to such appointment as the father had. By P.L.1871, p. 23, the mother "being a widow" was empowered to appoint a testamentary guardian of her infant child.

7. Our statute authorizing the appointment of testamentary guardians presently in force is R.S. 3:7-14 to 21, N.J.S.A. 3:7-14 to 3:7-21.

8. By analogy the terms "parent", "surviving parent", "other parent" and "sole surviving parent" as used in this statute should be given the same construction as like terms used in R.S. 9:3-1 et seq., N.J.S.A. 9:3-1 et seq. Held, therefore, that these terms as used in R.S. 3:7-1 et seq., N.J.S.A. 3:7-1 et seq., refer to the natural parent who "begat" the child and not to an adoptive parent.

9. The consent of an adoptive parent to the appointment of a testamentary guardian of an infant child by its natural parent is not required by that statute.

10. At common law the father had the preferred right to the custody of his minor child; but now, by statute (R.S. 9:2-4, N.J. S.A. 9:2-4), the rights of both parents, in the absence of misconduct, are equal.

11. The parents' right to the custody of their child may be transferred or abandoned, and the consent of an abandoning parent is not necessary to the child's adoption.

12. By statute (R.S. 9:3-4, subdiv. h, N. J.S.A. 9:3-4, subd. h): "A person shall be deemed to have forsaken parental obligations within the meaning of this chapter when he or she shall have wilfully and continuously either neglected or failed to perform the natural and regular obligations of care and support of the child".

13. In the instant case, where the adoptive mother entered into a written separation agreement with the natural father of an infant, the agreement expressly committing the custody of the infant to the father, and the adoptive mother having no contact or communication with the infant for a period of nearly five years thereafter, held, such circumstances constitute an abandonment within the meaning of the statute. Held, also, that by reason of such abandonment, the adoptive mother's consent to the appointment of a testamentary guardian of the child by its natural father became unnec-sary even if otherwise required.

14. The statutes do not, in a proper proceeding to that end, prevent the disposition of custody according to the best interests of the infant. In dealing with the custody and control of infants, their welfare and happiness, and not filial affections, are the primary considerations. R.S. 9:2-4, N. J. S.A. 9:2-4, now expressly so provides.

15. In resolving the general question of what will best subserve the welfare and happiness of the child, its own predilections may be considered and given weight, if it be of an age and capacity to form a rational judgment. But they are not controlling.

16. In the absence of facts or circumstances disqualifying testamentary guardians, the statutory right of the parent, duly and lawfully exercised by the execution of his or her will, must be respected and maintained. To set aside a testamentary appointment of guardians qualified to act would be in effect to make a new will for the testator which the court has no power to do.

Petition by June Bennett Gardner for the custody of a minor and appointment of petitioner as guardian of his person and property, opposed by Emmet V. Hall and others, wherein defendants filed a motion to dismiss the petition. Defendants having answered, the motion was held until final hearing.

Petition dismissed.

Parsons, Labrecque & Borden, of Red Bank (Theodore D. Parsons, of Red Bank, of counsel), for petitioner.

Ward Kremer and I. George Rabin, both of Asbury Park, for defendants Emmet V. Hall, Alma Hall, Florence Warner, and Murray Wiener.

BERRY, Vice Chancellor.

By this petition the petitioner seeks the custody of Joseph Hayes Wiener, an infant twelve years of age, and appointment as guardian of his person and property. Upon the return of an order to show cause advised on the filing of this petition, counsel for the defendants moved to dismiss the petition on the ground that upon its face it exhibited no cause of action. Later, the defendants answered and the motion was held until final hearing, which has now been completed. This controversy arises out of the following facts:

Joseph Hayes Wiener, the infant whose custody and guardianship are the subjects of this controversy, was born on July 29, 1929. His father was Dr. Joseph Wiener, a distinguished heart specialist, who, with his wife, K. Hazel Dowling Wiener, the mother of the infant, resided at Deal and Allenhurst, Monmouth County, New Jersey. Mrs. Wiener, the natural mother of the child, died within a week after its birth. On September 27, 1930, Dr. Wiener married the petitioner and she, on October 19, 1933, formally adopted this motherless child pursuant to proceedings in the Monmouth County Orphans' Court, the decree of adoption bearing the last mentioned date. On January 27, 1936, Dr. Wiener and the petitioner, his then wife, entered into a separation agreement, one of the provisions of which was that the custody of "Joseph H. D. Wiener, infant son of the party of the first part by a former marriage", was committed to Dr. Wiener. The petitioner then went to California, and later to Nevada, where, on April 10, 1936, she obtained a decree of divorce from Dr. Wiener. The following year she remarried and moved to Arizona, and later to California, where she now resides. For a period of nearly five years after her separation from Dr. Wiener, from January, 1936, to December, 1940, she never saw this child and had no contact with him. During the Christmas holidays of 1940 and again during the summer of 1941, the child visited her in California. There was some intermittent correspondence between the petitioner and child during 1941, but she did not see him again until after Dr. Wiener's death. After the divorce Dr. Wiener also remarried, and was later again divorced. He died on September 8, 1941, a resident of Monmouth County, unmarried and leaving as his only child his infant son, Joseph Hayes Wiener. The decedent, by his will dated September 28, 1938, named his son as sole beneficiary and appointed the defendants Emmet V. Hall and Alma Hall executor and executrix thereof and guardians of his infant son. The will has been duly probated and these defendants have duly qualified as executor and executrix thereof and as guardians of the infant. Dr. Wiener's estate is substantial and his life was insured for more than $100,000, all of the policies naming his son as beneficiary.

The petitioner bases her claim of right to custody and guardianship of the child upon the deer wort adoption above referred to and asserts that by virtue thereof she became vested with all the rights of a natural mother of the child, and that Dr. Wiener's appointment of a testamentary guardian of his son is void and of no effect because such appointment was not consented to in writing as required by the statute, R.S. 3:7-15, N.J. S.A. 3:7-15. On the other hand, the Hall defendants, testamentary guardians, while admitting that petitioner did not consent to such appointment, claim that the appointment was valid and effective and that the statutory requirement of consent applies only to a surviving natural parent and not to a surviving adoptive parent; that the word "parent" as used in R.S. 3:7-1 et seq., N.J. S.A. 3:7-1 et seq., and R.S. 9:3-1 et seq., N.J.S.A. 9:3-1 et seq., means a natural father or mother and not an artificial or adoptive father or mother created by law. Also, that by the provisions of the separation agreement whereby the custody of the child was committed to Dr. Wiener, and by reason of her actual abandonment of the child since the date thereof, and by her divorce from Dr. Wiener, the petitioner has forfeited all rights acquired by the adoption decree. The issues thus raised require a construction of the pertinent statutes and a discussion of or reference to some of the decisions of our courts touching the adoption, custody and...