In re Book's Will

• Decision Date: 25 October 1918
• Citation: 89 N.J.Eq. 509,105 A. 878
• Parties: In re BOOK'S WILL.
• Court: New Jersey Supreme Court

105 A. 878

89 N.J.Eq. 509

In re BOOK'S WILL.

Prerogative Court of New Jersey.

Oct. 25, 1918.

Supplemental Opinion, Nov. 18, 1918.

(Syllabus by the Court.)

Appeal from Orphans' Court, Essex County.

A certain paper writing was offered as the last will and testament of William Hook, deceased. From a decree of the orphans' court for Essex county, admitting it to probate, William Feindt appeals. Decree reversed, and record remanded, with direction to enter a decree denying probate.

Thomas S. Henry and Francis Child, both of Newark, for appellant.

John E. Helm and Harry Campton, both of Newark, for respondent.

LANE, Vice Ordinary. The testator adopted a child in accordance with the provisions of an act concerning minors, their adoption, custody, and maintenance. Revision of 1902, 2 C. S. of N. J. p. 2807, amended P. L. 1912, p. 53. His wife at the time of the adoption died. By her he had no children. He remarried. He then made his will. He died, and after his death a posthumous child of the second marriage was born. The will was admitted to probate by the orphans' court. It provides substantially that two-thirds of his estate should go to his wife and that one-third should be held in trust for the benefit of (and ultimately to go to) the adopted child under certain conditions.

A caveat was filed against probate by William Feindt, the natural father of the adopted child. Although not so stated in terms, it is apparent that the caveat was filed on behalf of the adopted child. Subsequently an order was made appointing the natural father next friend of the adopted child.

The contention of the respondent that the appellant had no standing in the court below is untenable, I think, for the reasons stated below.

The insistence of the appellant is that under section 20 of an act concerning wills, 4 C. S. of N. J., p. 5865, the will is void, having been made at a time when the testator had no issue living, the testator dying with his wife enceinte of a child, which was thereafter born.

The single question presented for determination is whether the testator having an adopted child at the time of the making of the will had issue within the purview of section 20. Sections 20 and 21 of the Wills Act read as follows (page 5865):

"Sec. 20. That every last will and testament made when the testator had no issue living, wherein any issue he might have is not provided for or mentioned, if at the time of his death he leave a child, children or issue, or leave his wife enceinte of a child or children which shall be born, such will shall be void, and such testator be deemed to die intestate.

"Sec. 21. That if a testator having a child or children born at the time of making and publishing his last will and testament, shall at his death, leave a child or children born after the making and publishing of his said last will and testament, or any descendant or descendants of such after-born child or children, the child or children so after-born, or their descendant or descendants respectively, if neither provided for by settlement nor disinherited by the said testator, shall succeed to the same portion of the father's estate, as such child or children or descendants as aforesaid would have been entitled to, if the father had died intestate; towards raising which portion or portions, the devisees and legatees or their representatives, shall contribute proportionably out of the part devised and bequeathed to them by the same will and testament."

At the time these sections were originally enacted, there was no statute of this state providing for adoption. The Legislature therefore could not have had adopted children in contemplation. It is clear that the words "issue," "child," or "children," in sections 20 and 21, are used in their strict and natural sense, and that the words "child" or "children" refer to a child or children born to the testator. The word "issue" may include descendants of every degree. In Wright v. Gaskill, 74 N.J.Eq. 742, 72 Atl. 108, the present Chancellor, then Vice Chancellor, held that the word "issue" in a devise is equivalent to heirs of the body. The Court of Errors and Appeals, in Weehawken Ferry Co. v. Sisson, 17 N.J.Eq. 475, at page 486, said that the word "issue," when not restrained by the context, is coextensive and synonymous with "descendants," comprehending objects of every degree. Considering the context it is clear I think that the legislative intent was that a will should be considered void if it appear that it was made at a time when the testator had no descendants (by blood) living and that after the making thereof there had been a child or children born to the testator and that at the time of death or at the conclusion of the period of gestation such child or children or his or their descendants are living.

The respondent insists that the effect of the Adoption Act is to make an adopted child issue for all purposes not expressly excepted by the terms of the act The conclusion that I have reached renders it unnecessary for me to pass upon the question raised by the appellant as to whether, if the Adoption Act can be so construed, it is to such extent unconstitutional upon the ground that its purpose is not expressed in its title upon the reasoning of the case in which the act abolishing dower and curtesy has been held unconstitutional. The respondent would have the statute (sections 20 and 21 of the Wills Act) read as follows: Sec. 20. That every last will and testament made when the testator had no issue (or adopted child) living, wherein any issue (or adopted child) he might have is not provided for or mentioned, if at the time of his death he leave a child, children (natural or adopted) or issue, or leave his wife enceinte of a child or children which shall be born, such will shall be void, and such testator be deemed to die intestate. Sec. 21. That if a testator having a child or children born (or adopted) at the time of making and publishing his last will and testament, shall at his death, leave a child or children (or adopted) after the making and publishing of his said last will and testament, or any descendant or descendants of such after-born (or adopted; child or children, the child or children so after-born (or adopted) etc. Turning to the Adoption Act, we find that the effect of adoption is as follows (P. L. 1912, p. 53):

"And the adopting parent or parents of the child shall be invested with every legal right in respect to obedience and maintenance on the part of the child as if said child had been born to them in lawful wedlock; and the child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock; provided, said child shall not be capable of taking property expressly limited to the heirs of the body of the adopting parent or parents, nor property coming from the collateral kindred of such adopting parent or parents by right of representation; and provided also, on the death of the adopting parent or parents and the subsequent death of the child so adopted, without issue, the property of such * * * deceased parent or parents shall descend to and be distributed among the next of kin of said parent or parents and not to the next of kin of the adopted child; and provided also, if such adopting parent or parents shall have other child or children, then, and in that case the children by birth and by adoption shall, respectively, inherit from and through each other as if all had been children of the same parents born in lawful wedlock."

Adoption was unknown at the common law, and it has been universally held in common-law states that the provisions of statutes providing for it, being in derogation of the common law, must be strictly construed.

The Legislature intended to permit the creation of an artificial status which would have so many of the incidents of the natural status of parent and child as indicated by the act; but it does not follow from this that it was the legislative intent, because it attached to the artificial status most of the attributes which attach to the natural status, to create a status which, aside from the exceptions specifically provided for by the act, should be in all respects equal to the natural status. In other words, it does not follow that the Legislature intended that in all cases, except those expressly excepted by the act, the adopted child should be considered as issue, or as a child where the term "child" is used as synonymous with a child born of the parent.

The case is novel in this state, and, when resort is had to other jurisdictions, it is found that the cases are in conflict, especially if headnotes alone are considered. A critical examination of the opinions will disclose that they are not in such hopeless conflict as otherwise would seem. 1 Ruling Case Law, title "Adoption," §§ 30, 33, Hilpipre v. Claude, 109 Iowa, 159, 80 N. W. 332, 46 L. R. A. 171, 77 Am. St. Rep. 524; Warren v. Prescott, 84 Me. 483, 24 Atl. 948, 17 L. R. A. 435, 30 Am. St. Rep. 370; Davis v. Fogle, 124 Ind. 41, 23 N. E. 860, 7 L. R. A. 485; Morse v. Osborne, 75 N. H. 487, 77 Atl. 403, 30 L. R. A. (N. S.) 914, Ann. Cas. 1912A, 324; Riley v. Day, 88 Kan. 503, 129 Pac. 524, 44 L. R. A. (N. S.) 296; Hockaday v. Lynn, 200 Mo. 456, 98 S. W. 585, 8 L. R. A. (N. S.) 117, 118 Am. St. Rep. 672, 9 Ann. Cas. 775.

But slight assistance, however, can be obtained from an extended consideration of these cases. Many of them have been determined upon statutes differing in some respects from those here in force. Others rest upon local law not applicable in this state, and in others it will be found that the statutes under consideration were adopted contemporaneously, whereas in this state they were not. Before the court can find that an adopted...