Greaves v. Fogel

• Decision Date: 13 February 1951
• Docket Number: No. A--846,A--846
• Parties: GREAVES et ux. v. FOGEL.
• Court: New Jersey Superior Court — Appellate Division

Page 5

12 N.J.Super. 5

78 A.2d 719

GREAVES et ux. v. FOGEL.

No. A--846.

Superior Court of New Jersey

Appellate Division.

Argued Jan. 22, 1951.

Decided Feb. 13, 1951.

Charles S. Moore, Atlantic City, argued the cause for the appellants (Moore, Butler & McGee and John C. Shipley, Atlantic City, attorneys).

Bertram M. Saxe, Atlantic City, argued the cause for the respondent.

Before Judges JACOBS, EASTWOOD and BIGELOW.

The opinion of the court was delivered by

JACOBS, S.J.A.D.

This is an appeal from a judgment entered in the Chancery Division dismissing the plaintiffs' complaint pursuant to opinion reported in Greaves v. Fogel, 9 N.J.Super. 301, 74 A.2d 350 (1950).

The plaintiff James N. Greaves is the adopted son of the decedent James Greaves. He was born in Pennsylvania in 1906, lived since infancy with the decedent and his wife who were domiciled in Pennsylvania, and was adopted by the decedent in 1920, after his wife's death, by formal decree entered in the Common Pleas Court of Delaware County, Pennsylvania. Pursuant to this decree the plaintiff acquired, under the law of Pennsylvania, 'the rights of a child and heir' of the decedent. In 1947 the decedent died intestate without children other than his adopted son. In 1948 the plaintiffs agreed to sell to the defendant certain real property located in New Jersey and owned by the decedent at the time of his death. Question was raised as to whether plaintiffs had title to the property under New Jersey law and they instituted action for specific performance. The Chancery Division dismissed their complaint on the sale ground that it felt constrained to follow the decision of Vice-Chancellor Church in Frey v. Nielson, 99 N.J.Eq. 135, 132 A. 765 (Ch. 1926) to the effect that a child adopted in a foreign state does not inherit New Jersey land upon the death of his adopting parent intestate.

In Dayton v. Adkisson, 45 N.J.Eq. 603, 17 A. 964, 4 L.R.A. 488 (Ch. 1889) Vice-Chancellor Pitney dealt with the right of a child to inherit New Jersey land where it appeared that he had been born to Penn-sylvania domiciliaries who later married and thereby legitimated his birth under the law of Pennsylvania. He recognized that the courts of England, with reliance upon the so-called statute of Merton, had denied such right under similar circumstances (Birtwhistle v. Vardill, 7 Cl. & Fin. 895 (H. of L. 1940)) but declined to accept their views, preferring those to the contrary expressed by Chief Justice Gray in the leading case of Ross v. Ross, 129 Mass. 243 (1880). Cf. In re Bowdoin's Estate, 87 N.J.Eq. 368, 369, 98 A. 514 (E. & A. 1917). He stressed the fact that many persons with lawfully adopted and legitimated children come to us from foreign states and lands and that it would be neither just nor desirable to deny their status insofar as inheritance of New Jersey lands is concerned. His conclusion that a child duly legitimated in a state having jurisdiction over his status may inherit land in other states was in accord with the weight of American authority, at least where such legitimation was not against the public policy of the state where the land was located. See 2 Beale, Conflict of Laws, p. 966 (1935). Admittedly, there is no policy in New Jersey against such legitimation; on the contrary, our Legislature has expressly provided that children born out of wedlock shall be legitimated by the intermarriage of their natural parents and entitled to all the rights and privileges of children born during wedlock. See R.S. 9:15--1, N.J.S.A.; R.S. 9:15--2, N.J.S.A. Cf. The Legitimacy Act, adopted in England in 1926. 16 & 17 Geo. 5, c. 60, § 8.

In Frey v. Nielson, Vice-Chancellor Church declined to follow the implications of Dayton v. Adkisson and, relying upon the English authorities, held that a child adopted under the law of New York could not inherit land in the State of New Jersey. He cited Hood v. McGehee, 237 U.S. 611, 35 S.Ct. 718, 719, 59 L.Ed. 1144 (1915) where the court held that Alabama being the 'sole mistress of the devolution of Alabama land by descent' was not obliged under the full faith and credit clause of the United States Constitution to permit a child adopted in Louisiana to inherit Alabama land. See also Olmsted v. Olmsted, 216 U.S. 386, 30 S.Ct. 292, 54 L.Ed. 530 (1910). While this decision indicates that there is no constitutional compulsion upon a state to permit foreign adoptees to inherit local land, it in no wise curbs the power of each state to make its own determination on the basic question presented. Most American courts have determined that issue in favor of the foreign adoptee's right to inherit local land, at least where there were local adoption statutes. See Ross v. Ross, supra; McLaughlin v. People, 403 Ill. 493, 87 N.E.2d 637, 640 (1949); Beale, supra, p. 967; 1 Am.Jur. 668 (1936). Similarly, the Conflict of Laws Restatement, § 143 (1934), provides that where the status of adoption is created by a state having jurisdiction it 'will be given the same effect in another state as is given by the latter state to the status of adoption when created by its own law.' In this connection it may be noted that the provision in the New Jersey Adoption Act vesting an adopted child with the right to inherit upon the intestacy of his adopting parent, is similar to that of Pennsylvania. R.S. 9:3--9, N.J.S.A.

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