Smallwood v. Smallwood

• Decision Date: 11 September 1936
• Citation: Smallwood v. Smallwood, 121 N.J.Eq. 126, 186 A. 775 (N.J. Ch. 1936)
• Court: New Jersey Court of Chancery
• Parties: CLARENCE SMALLWOOD, executor, &c., complainant, v. HARRY D. SMALLWOOD et al., defendants

186 A. 775

SMALLWOOD

v. SMALLWOOD et al.

Court of Chancery of New Jersey.

Sept. 11, 1936.

Syllabus by the Court.

Section 22 of the Wills Act (4 Comp.St. 1910, p. 5866, § 22), providing that an estate devised or bequeathed to a child of the testator who shall, during the life of the testator, die leaving a child or children surviving, shall not lapse but shall vest in "such child or children," held to include within its meaning an adopted child.

Bill for the construction of a will by Clarence Smallwood, executor, etc., against Harry D. Smallwood and others.

Decree for defendants.

Charles A. Bonnell, of Cape May, C. H., for complainant.

Bleakly, Stockwell & Burling, of Camden, for defendants.

SOOY, Vice Chancellor.

Testator, Jefferson Smallwood, died February 9, 1934, testate. His will, which this court is asked to construe, bears date September 26, 1929, at which time all of the beneficiaries named therein were living.

The second clause of the will, from which this controversy arises, is: "It is my will and I order and direct that my executors hereafter named shall sell all my property real and personal at public or private sale at their discretion and after paying my debts and funeral expenses, I give, bequeath and devise the balance of my estate to my children ano grandchildren as follows: one-third of said balance to my son, David M. Smallwood; one-third of said balance to my son, Clarence Smallwood; one-sixth of said balance to my grandson, Leroy Smallwood; and one-sixth of said balance to my granddaughter, Ida Silver Smallwood."

The son, David M. Smallwood, to whom the testator devised and bequeathed one-third of the "balance" aforesaid, predeceased testator, he having died on July 15, 1932, intestate.

At the time of the making of the will of Jefferson Smallwood, his son David and David's wife, Harriet, had legally adopted a boy, Harry D. Smallwood, the date of the adoption being March 27, 1914, of which adoption the testator was fully aware. This adopted child survived both decedents.

The question for decision is whether this adopted son is entitled to the bequest to his deceased adoptive parent as set forth in the above quoted paragraph of the will of Jefferson Smallwood.

It will be observed that the gift to the father of the adopted son is absolute, with no provision in the will that it shall go to others in the event of the death of David Smallwood. It thus clearly appears that in so far as testator's intention is concerned, he was giving no thought to any one other than his son David, and in this the case differs from those in which the court has resort to the language of the will in order to discover testator's intent therefrom. Herein the question for determination depends on an interpretation of the pertinent statutes and not an ascertainment of testator's intent, as gathered from the will or surrounding circumstances.

These statutes are section 22 of the Act Concerning Wills, 4 Comp.St. 1910 p. 5866, § 22 and section 4 of the Adoption Act, P.L. 1902, ch. 92, p. 262, as amended by P. L.1912, ch. 28, p. 53 (Comp.St.Supp.1924, § 97—16).

Section 22 of the Wills Act reads: "That whenever any estate of any kind shall or may be devised or bequeathed by the testament and last will of any testator or testatrix, to any person being a child or other descendant of such testator or testatrix, * * * and such devisee or legatee shall, during the life of such testator or testatrix, die testate or intestate, leaving a child or children, or one or more descendants of a child or children who shall survive such testator or testatrix, in that case such devise or legacy to such person so situated as above, mentioned, and dying in the lifetime of the testator or testatrix shall not lapse, but the estate so devised or bequeathed shall vest in such child or children, descendant or descendants of such legatee or devisee, in the same manner as if such legatee or devisee had survived the testator or testatrix and had died intestate; but this provision shall not apply where the testator or testatrix shall, by the will or codicil thereto, or other instrument, have otherwise directed in regard to the children or descendants of the said devisee or legatee dying as aforesaid."

We have before us, then, a bequest by a father to his son, who died intestate during the lifetime of the testator, and this deceased legatee left no child or children other than an adopted son. The statute says that such a devise or bequest shall not lapse in case there be a living child or children of the deceased legatee or devisee, but that the estate so devised or bequeathed shall vest in such child or children. Is an adopted child such a child as is spoken of in the statute in whom the estate so devised or bequeathed shall vest? Section 4 of the Adoption Act, so far as it is pertinent, after reciting proceedings for adoption and the entry of the decree for adoption, reads as follows: "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."

The adopted child in the instant case does not come within the expressed proviso of section 4, so that if a proper interpretation of the statute law brings the adopted child within the provisions thereof, the legacy or devise of the testator, Jefferson Smallwood, did not lapse by reason of the death of the adoptive parent before that of Jefferson Smallwood, but such adopted child is entitled to take the devise or bequest of his deceased adoptive parent.

Chief Justice Gummere, in In re Book's Will, 90 N.J.Eq. 549, at page 552, 553, 107 A. 435, 436, for the Court of Errors and Appeals, in deciding the question as to whether or not "child," "children," or "issue" referred to in section 20 of the Wills Act (4 Comp.St.1910, p. 5865, § 20) contemplated adopted children as well as those born in wedlock, said:

"The effect of the legislation just adverted to is to clothe the adopted child with all the rights of a natural child so far as inheritance of real estate or the distribution of personal...