In re Fisler's Estate

• Decision Date: 20 March 1942
• Citation: 131 N.J.Eq. 310,25 A.2d 265
• Parties: In re FISLER'S ESTATE.
• Court: New Jersey Supreme Court

25 A.2d 265

131 N.J.Eq. 310

In re FISLER'S ESTATE.

Prerogative Court of New Jersey.

March 20, 1942.

Syllabus by the Court.

1. The word "issue," in its ordinary meaning, embraces grandchildren and remoter descendants, as well as children, and that meaning must be attributed to the word when used in a will, unless from the will it can be clearly ascertained that a more restricted meaning was intended by the testator. Unless so restricted, it includes children of a living child.

2. The word "issue," when used in a will in connection with the words "to take their parents share" held to have been intended to restrict the takers to children of the parent, and thus to exclude an adopted child.

3. A will bespeaks testamentary intention as of its date. That intention, if possible, should be ascertained from the will itself, but this does not preclude an examination of the circumstances surrounding the execution of the will.

4. The paramount rule for the construction of testamentary instruments is that the court must strive to ascertain the intention of the testator as expressed by the words of the instrument. Such intention, if so ascertainable, will prevail over technical rules and will disregard the common, ordinary meanings of words and adopt such meaning as can be deduced from the testator's intention.

5. In the construction of a will, a court may not, because an event has happened which the court thinks has not been provided for, conjecture upon and act to effectuate what it concludes the testator would have provided had he conceived of the possibility of the event coming to pass.

6. The artificial relationship of adoption, with its concomitant rights and responsibilities, exists solely by permission and authority of statute; no power to adopt was recognized by the common law.

7. Where testamentary intention is indefinite or obscure an adopted child may take under the will if his status answers the description of the will. The statutory system supplies the intention; he takes by designation of the system.

8. The clause in R.S. 9:3-9, N.J.S.A. 9:3-9, which pronounces an adopted child incapable of taking property expressly limited to the heirs of the body of the adopting parent, should be technically construed; it does not forbid the adopted child from taking property bequeathed or devised to the issue of the adopting parent.

9. The decisions in Stout v. Cook, 77 N.J. Eq. 153, 75 A. 583; Id., 79 N.J.Eq. 573, 81 A. 821; Id, 79 N.J.Eq. 640, 81 A. 824; In re Book's Will, 89 N.J.Eq. 509, 105 A. 878; Id, 90 N.J.Eq. 549, 107 A. 435; In re Alter's Will, 92 N.J.Eq. 415, 112 A. 483; Haver v. Herder, 96 N.J.Eq. 554, 126 A. 661; Dulfon v. Keasbey, 111 N.J.Eq. 223, 162 A. 102; Smallwood v. Smallwood, 121 N.J.Eq. 126, 186 A. 775; Trenton Trust Co. v. Gane, 125 N.J.Eq. 389, 6 A.2d 112; Id., 126 N.J.Eq. 273, 8 A.2d 708; Fidelity Union Trust Co. v. Hall, 125 N.J.Eq. 419, 6 A.2d 124; Jackson v. Beal, 127 N.J.Eq. 156, 11 A.2d 750; In re McEwan's Estate, 128 N.J.Eq. 140, 15 A.2d 340; and, Ahlemeyer v. Miller, 102 N.J.L. 54, 131 A. 54; Id, 103 N.J.L. 617, 137 A. 543, considered.

10. A testator who makes testamentary provision for a child or children or issue of another is presumed not to have intended to include an adoptive child unless other language in the will makes clear a contrary purpose, and, where an adoption, to which the testator is a stranger, occurs after the execution of the will and after the decease of the testator, the adoptive child can not take under such a provision.

In the matter of the appeal from the decree of the Orphans' Court of the County of Camden decreeing distribution of the estate of Caroline Fisler, deceased.

Order in accordance with opinion.

Richardson A. Roberts, of Camden, for Charles Wesley Keeler.

Charles H. Stevens, of Camden, for Nelissa Keeler Gohagan and another.

Raymond Saltzman, of Camden, for Barnard Lorence.

WOODRUFF, Vice Ordinary.

Two appeals from a decree of distribution made by the Camden County Orphans' Court in the estate of Caroline Fisler, deceased, are before me for decision. Both involve a construction of decedent's will. The third paragraph of that instrument, with which we are here primarily concerned, reads:

"I give and bequeath to the Provident Life and Trust Company now doing business at No. 409 Chestnut Street in the City of Philadelphia all of my stock of the United New Jersey Railroad and Canal Company in trust nevertheless to collect the income and dividends thereon and to pay the same (after paying all lawful taxes and assessments thereon) to my grandniece Eliza Mulford daughter of my late nephew Jacob Mulford and now wife of Charles E. Keeler, in equal quarterly payments, during the term of her natural life, and after her death the said shares to go to and be enjoyed by the lawful issue of my said grandniece in equal parts share and share alike, and if any of such issue be then deceased, leaving lawful issue, such issue to take their parents share, and in case she should die without leaving lawful issue the said stock to go to and be part of my residuary estate and be disposed of as hereinafter provided, and in case the said Eliza Mulford Keeler should die before me leaving lawful issue then I give and bequeath the said stock to such lawful issue share and share alike, and in case the said Eliza Mulford Keeler should die before me not leaving lawful issue then my will is that the said stock shall go to and be a part of my residuary estate to be disposed of as hereinafter provided." (Italics mine.)

The will was executed November 22, 1890. Testatrix died in October, 1903; her grandniece Eliza Mulford Keeler, life beneficiary in the trust created by the third paragraph, died May 6, 1940. When Caroline Fisler made her will, one child, Alice Caroline Keeler, had been born to Eliza Mulford Keeler and was eight months of age. This great-grandniece (and apparent namesake) of the testatrix is specifically named in paragraph seven, where she is bequeathed the sum of one thousand dollars and its increment, to be paid to her upon attaining her majority. She and her brother Charles Wesley Keeler (born after the execution of the will) were the only children of Eliza Mulford Keeler. Alice Caroline Keeler married Charles M. Lorence, and predeceased her mother; no children were born to Mrs. Lorence but, on October 7, 1926, she adopted Barnard Lorence under the provisions of the Adoption Act of this state; Barnard Lorence survived Eliza Mulford Keeler and Alice Caroline Keeler-Lorence his adoptive mother, and is one of those here prosecuting an appeal. Charles Wesley Keeler, the other appellant, has four children, Melissa Keeler Gohagan, Elizabeth M. Keeler, Alice C. Keeler, and Jean C. Keeler; the latter three children are minors and appear by guardian ad litem.

The decree of the Camden County Orphans' Court expressly excluded Barnard Lorence from any participation in the distribution of the trust estate, and directed that distribution be made to Charles Wesley Keeler and his four children, with equal shares to each. It is the contention of the appellant Barnard Lorence that the language employed by testatrix in the questioned third paragraph, i.e., "if any of such issue be then deceased, leaving lawful issue, such issue to take their parents share," must be so construed as to entitle him to take the share of his adoptive parent. Charles Wesley Keeler maintains that his four children are not "lawful issue" of their grandmother, Eliza Mulford Keeler, and challenges the contention that Barnard Lorence may be justly considered "lawful issue" of Mrs. Lorence. Mr. Keeler insists that the will, properly construed, entitles him to receive the entire trust estate.

Let us consider, first, whether the four children of Charles Wesley Keeler should share equally with their father in any distribution of the trust estate. The answer to that question must be found, if possible, in the intent of the testatrix as expressed in the language chosen and employed by her in drafting her will and, in particular, in her use of the words "lawful issue of my said grandniece," in the third paragraph. Many reported decisions of this court and of the Court of Errors and Appeals may be found where the testamentary use of the word "issue" or the words "lawful issue" have been construed in instances where the gift was to issue of certain definite individuals, but the question here presented is novel, the gift over, after the death of the life beneficiary, being to a class (her "lawful issue") or, in substitution, to another class ("lawful issue" of deceased issue).

An early and leading case in which the word "issue" was construed is Weehawken Ferry Company v. Sisson, N.J.Err. & App, 17 N.J.Eq. 475. Chief Justice Beasley there said, 17 N.J.Eq. at page 485: "Standing uncontrolled by the context, the word 'issue' is synonymous with descendants. Therefore, unless in some way limited in its sense, it embraces equally the son and his children." The clause construed in that case limited trusts declared in a deed and related to the disposition of property after the expiration of the life estate.

In Dennis v. Dennis, 86 N.J.Eq. 423, 99 A. 889, 890, a decree advised by Vice Chancellor Howell was affirmed by the Court of Errors and Appeals. In that, as in the instant case, the contest arose after the death of the life tenant and between a father and his children; the clause there to be construed read: "at the death of each, the said two-thirds to be relieved from said trust and go absolutely to the issue of the son so dying." Vice Chancellor Howell said: "It seems to be well settled in this state that the word 'issue,' which is so indefinite and capable of so many interpretations, in its first and primary sense, means descendants, and comprises objects of every degree."

In Security Trust Co. v. Lovett, 78 N.J.Eq. 445, 79 A. 616, 618, Vice Chancellor Learning declared: "It is settled in this state...