In re Book's Will
| Decision Date | 20 June 1919 |
| Citation | 107 A. 435 |
| Parties | In re BOOK'S WILL. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
Additional Syllabus by Editorial Staff.
Appeal from Prerogative Court.
Proceeding by executors for probate of a certain paper writing as the last will of William Book, deceased, with caveat by Frederick Book. From an order of the Prerogative Court (105 Atl. 878) reversing an order of the orphans' court of Essex county, admitting the writing to probate, the executors appeal. Reversed.
Harry Campton and George D. Mulligan, both of Newark, for appellants.
Thomas S. Henry and Francis Child, both of Newark, for respondent.
The present appeal challenges the validity of an order of the Prerogative Court which reversed an order made by the orphans' court of Essex county, admitting to probate a centain paper writing as the last will and testament of William Book, deceased.
The facts necessary for the determination of the matter before us are as follows: William Book and Annie, his wife, in April, 1908, adopted Frederick, the infant child of one William Feindt. The child's mother had previously died. The adoption was in accordance with the provisions of an act concerning minors, their adoption, custody, and maintenance (Revision of 1902, Comp. Stat. p. 2808) which was then in force. In 1911 Annie Book, the mother by adoption of the infant child, died; and about a year later William Book married one Emma Goldman, who is still living. On the 25th day of May, 1915, Book executed the paper writing involved in the present litigation. He died in January, 1917, leaving his wife enceinte of a child which was afterwards born. In due course the executors named in the will offered it for probate. By its terms, after providing for the payment of his debts and funeral expenses, the testator gave to his adopted son, Frederick, all of his jewelry, devised a certain house and lot to his wife Emma, and then directed the residue of his estate real and personal to be divided into three equal parts, two of which he gave to his wife, and the third of which he directed to be held in trust for his adopted son until he reached the age of 25, when he was to become the absolute owner thereof, providing he retained the name of Frederick Book. The adopted child, Frederick Book, by his next friend, filed a caveat against the probate, upon the sole ground that the will was void under section 20 of the act concerning wills, Comp. Stat. p. 5865.
The statute relied on declares:
"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."
The argument in support of the caveat was and is that the statutory provision recited makes a will void when the testator had no children born to him living at the time of its execution, nor any lineal descendants of such issue; and consequently that, as Frederick Book was not a child born to the testator, the statute applies.
The attitude assumed by the caveator is certainly an anomalous one. In one breath he asserts that at the time of the execution of the will the testator had no child living, within the meaning of section 20 of the Wills Act, and in the next breath he justifies his filing of the caveat because of his status as a child of the testator, and his resulting right to participate in the distribution of the latter's personal estate, and to inherit his real estate if the will is void. Can he, under our statutes dealing with the subject-matter of our inquiry, successfully maintain these two apparently conflicting positions?
Section 20 of the Wills Act became a part of that statute in December, 1824. Elmer's Dig. pp. 600, 601. At that time a testator could have no lawful children except those born to him in wedlock. A child born to him of a woman who was not his wife was not recognized by the law as having any claim to share in the real or personal estate of the father. At that time, too, the laws of this state recognized no power existing in any of its citizens to adopt a child of other parents, and by the act of adoption...
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