Griswold's Estate, Matter of

• Decision Date: 30 January 1976
• Citation: 354 A.2d 717,140 N.J.Super. 35
• Parties: In the Matter of the ESTATE of Harold E. GRISWOLD, Deceased.
• Court: New Jersey County Court. New Jersey County Court — Probate Division

Page 35

140 N.J.Super. 35

354 A.2d 717

In the Matter of the ESTATE of Harold E. GRISWOLD, Deceased.

Morris County Court,

Probate Division, New Jersey.

Jan. 30, 1976.

Garth F. Weber, Morristown, for plaintiff American National Bank and Trust (Jeffers & Dillon, Morristown, attorneys).

Alfred L. Ferguson, Newark, for defendants Sarah Griswold Leahy, Mary Griswold Flender, Susanna Whitney Griswold and Alfred Whitney Griswold, Jr. (McCarter & English, Newark, attorneys).

William J. Brennan, III, Trenton, for defendant Martin T. Dyke (Smith, Stratton, Wise & Heher, Trenton, attorneys).

LONG, J.S.C.

This case raises, but in a different setting, the same general question as was raised in In re Comly, 90 N.J.Super. 498, 218 A.2d 175 (Cty.Ct.1966), that is, whether an adopted Adult is a child of the adopting parent within the meaning of a will of a third person, a 'stranger to the adoption,' which provides that upon the death of the life tenant (the adopting parent) the remainder shall be paid to his children or issue of deceased children.

Testator Harold E. Griswold died on July 8, 1952 a resident of Morris County, leaving a will which was executed on October 20, 1950. The will was admitted to probate by the Morris County Surrogate on July 21, 1952. Testator was survived by two sons, Alfred Whitney Griswold and Harold Ely Griswold, Jr. (who was known as 'Ely' and will be so designated herein to distinguish him from his father). The will divided the residue equally between two trusts, one for the benefit of son Alfred for his lifetime and one for the benefit of Ely for his lifetime. The remainders of each trust were left to 'such children or issue of deceased children of my said son as shall then be living, per stirpes.' Each trust provided for gifts over in the event of death of the life tenant without leaving a child or issue of a deceased child.

Alfred died in 1963 leaving his wife Mary and their four natural children.

At the time of the execution of the will Ely was married but having marital difficulties, and this was known to his father. He obtained a divorce in February 1951. There were no children of that marriage. In 1946 or 1947 Ely had begun a relationship with Adrienne Moore. From 1947 on they had been living together or in adjoining apartments, until 1955 or 1956 when they were married. His wife had been previously married and had a son, Martin Trester Dyke, 3rd, who was born on August 7, 1924. He was about 31 years of age at the time of his mother's marriage to Ely. Ely was living in California during this period.

In 1963, at the suggestion of a California attorney, Ely began to consider the advisability of adopting his wife's son, Martin Dyke. Dyke was married, had three children and was living with his family in Tennessee or elsewhere in the Eastern or Southeastern United States. He had left California in 1949.

Ely decided to go ahead with the adoption. Dyke consented thereto and proceedings were instituted in California. Subsequently a judgment of adoption was entered in Superior Court, Orange County, on October 18, 1965. At the time of the adoption Dyke was 41 years old and Ely was 56. Ely was born September 8, 1909 and was thus one month shy of the 15-year age differential which is required under the New Jersey statute.

Ely's wife, Adrienne Moore Griswold, died on January 22, 1973. There were no children of that marriage. Ely died on December 22, 1973, leaving no spouse or natural children or issue, but survived by Martin Dyke, his adopted son.

Upon the death of Ely the surviving trustee of his trust filed its fourth and final account and in connection therewith sought instructions as to the final distribution of the principal and accumulated income of the trust. Claims thereto are made by the four surviving children of Alfred Whitney Griswold and by Martin Trester Dyke, 3rd, the adopted stepson.

The primary objective is to ascertain the probable intention of the testator. Where such intention can be determined from the language of the will or from the attending circumstances, that intention should be given effect. Fidelity Union Trust Co. v. Robert, 36 N.J. 561, 178 A.2d 185 (1962); Bank of New York v. Black, 26 N.J. 276, 139 A.2d 393 (1958); In re Coe, 42 N.J. 485, 201 A.2d 571 (1964); In re Estate of Burke, 48 N.J. 50, 222 A.2d 273 (1966); In re Thompson, 53 N.J. 276, 250 A.2d 393 (1969); Wilson v. Flowers, 58 N.J. 250, 277 A.2d 199 (1971).

In this case there is nothing in the will itself nor in the surrounding circumstances to establish that the subject of Adult adoptees as 'children' of testator's sons was discussed by testator with his counsel or specifically considered by them. The search for probable intent must therefore be based upon a consideration of the language of the will, all of the relevant facts and circumstances in respect to the testator and the application and effect of In re Coe, supra, and of N.J.S.A. 2A:22--3.

The adopted child, Martin Trester Dyke, 3rd, argues that he is entitled to take under this will under the holding of In re Coe, supra, and upon a correct construction of N.J.S.A. 2A:22--3 and the history of that statute. The four surviving children of Alfred Whitney Griswold, who would take the remainder unless Dyke takes, contend that testator's probable intention would be to exclude the adopted adult; that the adult adoption statute differs in significant respects, and historically, from the minor adoption statute (now N.J.S.A. 9:3--17 Et seq.), and should not be construed to mean that an adopted adult qualifies as a child of the adopting parent under the will of a stranger to the adoption; that the law existing at the time of the execution of the will should govern the case, and finally, that the adoption of Dyke was for the purpose of defeating a testamentary disposition and is a fraud as a matter of law.

The trustee takes a nonadversary position but made an extensive presentation with respect to the law applicable to the case, discussed the problems of fiduciaries in connection with questions regarding adult adoptees, and requested that the court make a determination applicable to all cases of adult adoptees, either that they take as children or issue under a third person's will or they do not.

This court concludes as follows:

(1) The law of New Jersey governs the case;

(2) The language of the will, together with the attending circumstances, require a conclusion that testator's probable intention would be to exclude the adopted adult as a child of testator's son Ely;

(3) The Coe case is not fully applicable to the situation of the adult adoptee and does not indicate or require a finding that there is a presumption that the adult adoptee would take as a 'child' of the adopting parent under this testator's will (4) N.J.S.A. 2A:22--3 should not be construed to constitute the adopted adult a child of the testator's son Ely under this will and

(5) In any event, this adoption is an abuse of the adoption process and of testator's will and, in that sense, a 'fraud' within the meaning of In re Coe.

It is recognized that these subjects become intermingled and to some extent overlap each other, but it may be helpful to discuss them separately. That is, probable intent is a concept dealing with the testator's state of mind but the determination of it must sometimes rest on the existence or nonexistence of a presumption, either statutory or otherwise, and the ultimate determination may depend upon whether there is a presumption and, if so, what the presumption is and whether the surrounding circumstances are such as to indicate a contrary intent and overcome the presumption.

I THE LAW OF NEW JERSEY IS APPLICABLE

The trust here in question has a situs in New Jersey. The adoption took place in California. Assuming that the adoption in California was valid under the laws of that state, it is entitled to recognition in the State of New Jersey, but the legal incidents and effects of that status with respect to property in New Jersey are to be determined by the laws of this State. Dulfon v. Keasbey, 111 N.J.Eq. 223, 162 A. 102 (Ch.Ct.1932); Zanzonico v. Neeld, 17 N.J. 490, 111 A.2d 772 (1955). In Zanzonico the court said:

* * * However, we have rejected the provincial approach and, in accord with traditional concepts of comity and in the exercise of due regard for the welfare of the adopted child, have accorded recognition to foreign adoption decrees for inheritance purposes, subject only to two conditions which pertain generally to the recognition of any foreign judgment: (1) that the foreign court had jurisdiction to fix the status of the child with respect to the adoptive parents, and (2) that the recognition of the foreign decree will not offend the public policy of our own State. In re Finkenzeller's Estate, supra, (105 N.J.Eq. 44) at Page 46, 146 A. 656. * * * (at 495, 111 A.2d at 774)

The adoption here offends New Jersey policy in regard to the required age differential of 15 years, but the deficiency is slight, the offense to policy is minimal, more important questions of policy are involved in the case, and the decision here should not turn on that issue.

II THE PROBABLE INTENT OF TESTATOR

There being nothing in the language of the will which by itself reveals a clear intent to either include or exclude an adult adoptee, and nothing to indicate that the subject was either discussed or considered, it is probable that the subject was not thought about and that there was therefore no specific intent of either the testator or the draftsman of the will, an experienced and competent attorney. The attorney's files were examined.

However, there are some elements of the will which give some indication of what the probable intention would have been if the matter had been thought about. To begin with, the ordinary meaning of the word 'child' is a natural child. To equate a 41-year-old man, not related by blood, to a natural born grandchild is a...