Nickell v. Gall, A--89

• Decision Date: 24 April 1967
• Docket Number: No. A--89,A--89
• Parties: Patricia Agnes NICKELL, Plaintiff-Appellant, v. Claire M. GALL, individually and as Administratrix of the Estate of Constance M. Zack, deceased, et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 186

49 N.J. 186

229 A.2d 511

Patricia Agnes NICKELL, Plaintiff-Appellant, v. Claire M. GALL, individually and as Administratrix of the Estate of Constance M. Zack, deceased, et al Defendants-Respondents.

No. A--89.

Supreme Court of New Jersey.

Argued March 7, 1967.

Decided April 24, 1967.

Gerald W. Conway, Newark, for appellant (Schreiber & Lancaster, Newark, attorneys).

C. Russell Kramer, Newark, for respondents (Smith, Kramer & Morrison, Newark, attorneys, Charles C. Collins, Jr., Newark, on the brief).

The opinion of the court was delivered by

JACOBS, J.

The Chancery Division dismissed the plaintiff's complaint for failure to state a claim on which relief could be granted. Nickell v. Gall, 90 N.J.Super. 539, 218 A.2d 427(Ch.Div.1966). The plaintiff appealed to the Appellate Division and we certified before argument there.

The plaintiff Patricia was born in 1926 at which time her father had already deserted her mother Constance M. Friedlin. Thereafter Constance permitted her sister and brother-in-law, Agnes and Charles Dunlap, to adopt Patricia. A petition by the Dunlaps dated December 1928 was filed in the Essex County Orphans' Court and prayed that the petitioners be granted permission to adopt the child and that the court adjudge that the relations between the child and her natural mother shall be at an end, 'excepting the right of inheritance.' The petition bore the consent by Constance to the adoption of Patricia in accordance with the provisions of an act of the Legislature entitled 'An Act concerning minors, their adoption, custody and maintenance (Revision of 1902)' approved April 2, 1902 and the amendments thereof. See R.S. 9:3--1 through R.S. 9:3--16 repealed by L.1953, c. 264, p. 1778, § 18.

In January 1929 the Orphans' Court entered an order which granted the petition and adjudged and directed that 'the rights, duties, privileges and relations heretofore existing between the said Patricia Agnes Friedlin, and her parent, the said Constance M. Friedlin, shall be, and are in all respects at an end, excepting the right of inheritance.' See R.S. 9:3--7. After the adoption, Patricia lived with the Dunlaps and was known as Patricia Agnes Dunlap. In 1964 Patricia's natural mother, then Constance M. Zack, died intestate in Essex County. She was survived, apart from her daughter Patricia, by three sisters and a brother. The brother renounced all interest and one of the sisters, Claire M. Gall, was appointed administratrix of the estate. Thereafter Patricia filed a complaint seeking to establish that she was the sole heir. On motion by the defendants, the Chancery Division dismissed the complaint because of its view that Patricia's so-called 'right of inheritance' from Constance, expressly preserved in those terms in the statute then in force (R.S. 9:3--7) and in the adoption decree, was terminated by L.1953, c. 264 (R.S. 9:3--17, N.J.S.A. through R.S. 9:3--36, N.J.S.A.). See 90 N.J.Super., at pp. 542--544, 218 A.2d 427.

There is no substantial dispute that inheritance laws may be changed from time to time and that they speak only as of the time of the death. See In re Holibaugh's Will, 18 N.J. 229, 235, 113 A.2d 654 (1955), 52 A.L.R.2d 1223 (1957). And though the plaintiff suggests otherwise, we assume that the terms of the adoption decree would not present any constitutional obstacle to later legislation explicitly designed to terminate the child's right of inheritance from her natural parent. See Kicey v. Kicey, 112 N.J.Eq. 459, 462, 164 A. 684(Ch.), affirmed 114 N.J.Eq. 116, 168 A. 424 (E. & A. 1933). However, the vital question here is whether the Legislature, by its enactment of L.1953, c. 264, intended to preclude a natural daughter who had been adopted many years earlier under a law and decree explicitly preserving her right of inheritance, from claiming the estate upon the later death of her natural parent intestate. On the issue of intent we may bear in mind that legislation ordinarily operates prospectively (Kopczynski v. County of Camden, 2 N.J. 419, 424, 66 A.2d 882 (1949)) and that L.1953, c. 264 was not a statute aimed at changing the general laws of descent and distribution but was an adoption statute designed primarily to prescribe modern procedures for adoptions along with their familial incidents and consequences. Cf. Hall v. Scarlett, 86 U.S.App.D.C. 166, 181 F.2d 277 (D.C.Cir.1950), rehearing denied, 88 U.S.App.D.C. 201, 188 F.2d 990 (D.C.Cir.), certiorari denied 341 U.S. 925, 71 S.Ct. 796, 95 L.Ed. 1357 (1951).

In our examination of L.1953, c. 264, we find nothing to indicate that the Legislature had in mind cutting off the so-called rights of inheritance of prior adoptees such as the plaintiff; indeed the indications are to the contrary. Section 14(A) (R.S. 9:3--30(A), N.J.S.A.), which provides that the entry of a judgment of adoption 'shall terminate' all relationships between the child and her natural parents 'including rights of inheritance under the intestate laws of this State,' appears to us to point to future adoptions under the statute. And the saving clause in section 18 (R.S. 9:3--34, N.J.S.A.) is so broadly phrased as to suggest a studied effort on the part of the Legislature to avoid any alteration in the right of inheritance preserved to prior adoptees under the earlier laws and decrees. It provides that although L.1953, c. 264 repeals prior laws, it shall not be deemed 'to invalidate or otherwise affect any adoption granted or any right or duty vested or established under any law heretofore in effect.' It is significant that the Legislature was not content merely to avoid the invalidation of prior adoption decrees but directed that they shall not be 'otherwise' affected; similarly it was not content with preserving those rights which were strictly 'vested' but it also preserved those rights which were 'established' under previous laws. Although the defendants point out that while the parent is alive, there is only an inheritance expectancy rather than a right, the Legislature throughout all of the enactments has obviously used the term 'right of inheritance' as referring to the interest of the child under the general laws of descent and distribution in the event his parent dies intestate.

The Chancery Division drew an inference of retroactivity as to the remainder of the statute from the fact that in ...