In re Finkenzeller's Estate

• Citation: 146 A. 656
• Decision Date: 29 June 1929
• Docket Number: No. 3403.,3403.
• Parties: In re FINKENZELLER'S ESTATE.
• Court: United States State Supreme Court (New Jersey)

146 A. 656

In re FINKENZELLER'S ESTATE.

No. 3403.

Prerogative Court of New Jersey.

June 29, 1929.

(Syllabus by the Court.)

Appeal from Orphans' Court, Essex County.

In the matter of the estate of Annie Mathilda Finkenzeller, deceased, wherein Charles Finkenzeller was granted letters of administration with the will annexed. From an order requiring him to file an inventory of the personal estate of the deceased, the administrator appeals. Affirmed.

Abraham Levitan, of Jersey City, for appellant.

Richard Hartshorne, of Newark, for respondent.

FIELDER, Vice Ordinary. While Charles Finkenzeller and Annie Mathilda, his wife, were domiciled in this state, they petitioned the Surrogate's Court of the County and State of New York for the adoption of an infant girl, then in the care and custody of a charitable institution located in New York county, and in their petition, signed and sworn to by both husband and wife, they prayed for an order allowing the adoption and directing that said infant be thereafter regarded and treated in all respects as their own child and be known by their surname. At the same time they entered into a written agreement with the charitable institution, agreeing (among other things) to adopt and treat said infant as their own lawful child. A decree was made by said court, dated May 4, 1920, ordering that said agreement of adoption be in all respects allowed and confirmed, and ordering that said infant be thereafter regarded and treated in all respects as the child of the adoptive parents and be known by their surname.

The adoptive parents and the child thereafter resided together in this state, and while domiciled here Mrs. Finkenzeller died March 12, 1926, leaving her husband and said child surviving her. Mr. and Mrs. Finkenzeller had a child of their marriage, who predeceased Mrs. Finkenzeller, and at Mrs. Finkenzeller's death she had surviving her no child of her body, or any legal representative of her deceased child. Mrs. Finkenzeller left real and personal property and a will admitted to probate by the surrogate of Essex county, whereon letters of administration with the will annexed were granted to Charles Finkenzeller, the husband. The distributive provisions intended to be made by the testatrix were not contained in the will, but were written on sheets of paper separate from the will, which sheets of paper were denied probate, so that the will, as admitted to probate, contained no provision for the disposition of the testatrix's personal estate, and the same will go to her next of kin under our statute of distribution. Upon the administrator's failure to file an inventory of the personal estate of the deceased, he was, on petition of the adopted daughter, ordered by the orphans' court to do so, and from said order he now appeals. The claim made in his behalf is that the decree of adoption of the New York court will not be recognized to affect the distribution of the testatrix's personal estate under the laws of this state; that our statute of distribution, giving the right of inheritance to a child from his parent, applies to a child of the body and to a child adopted under the statutes of this state only, and to extend this right to a child adopted under the laws of another state would be in contravention of our statute of distribution, and that, since the testatrix died without issue, the administrator, as surviving husband, is entitled to all of his deceased wife's personal estate (2 Comp. St. Supp. 1924, p. 2629, § 146-169, subd. 2), and cannot be required to file an inventory.

3 Comp. St. 1910, p. 3855, § 120, makes it unnecessary for an administrator with the will annexed, who is entitled to all the personal estate of the testator, to file an inventory, unless the orphans' court, upon the application of "any person interested in the estate," shall order him to do so. It is necessary, therefore, to determine whether the adopted daughter is a person interested in the estate. Folwell's Case,*67 N. J. Eq. 570, 59 A. 467, affirmed on this point 68 N. J. Eq. 728, 62 A. 414, 2 L. R. A. (N. S.) 1193.

The weight of authority in this country is that a child adopted in a foreign state or country may take under local statutes of descent and distribution, if such foreign state or country had jurisdiction to fix his status with respect to his adoptive parents, and if the law with regard to adoption, of the state in which the real and personal property is situated, does not differ essentially from the laws of the state in which the adoption was had, so that local public policy is not violated by recognizing and giving effect to the adoption proceedings of the foreign state or country. 65 L. R. A. 187; 14 L. R. A. (N. S.) 980; L. R. A. 1916A, 666, and cases cited. New York courts recognize and apply this doctrine under the comity between states New York Life, etc., v. Viele, 161 N. Y. 11, 55 N. E. 311, 76 Am. St. Rep. 238; Matter of Leask, 197 N. Y. 193, 90 N. E. 652, 27 L. R. A. (N. S.) 1158, 134 Am. St. Rep. 866, 18 Ann. Cas. 516.

A child adopted under the Adoption Act of this state (2 Comp. St. 1910, p. 2807, § 13 et seq.; 1 Comp. St. Supp. 1924, p. 1555, § 97—16) occupies the same position as a natural born child of the adoptive parents, so far as concerns the right to take by inheritance from such parents. In re Book, 90 N. J. Eq. 549, 107 A. 435. The New York Adoption Act (Domestic Relations Law [Consol. Laws, c. 14, § 110 et seq.]; 2 Birdseye [2d Ed.] p. 1937, § 110 et seq.) is quite similar to our statute. It confers jurisdiction upon the surrogate of the county in which the infant resides, when the adoptive parents are not residents of New York, and section 114 of the New York act provides (like sections 15 and 16 of our statute [2 Comp. St. 1910, p. 2808]) that, after the order for adoption is entered, the adoptive parents and the child shall sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation, including the right of inheritance from each other (except in certain instances with which we are not now concerned). The courts of New York, construing the provisions of their act, have held that...