Spano's Estate, In re

• Decision Date: 08 May 1967
• Docket Number: No. A--65,A--65
• Citation: 49 N.J. 263,229 A.2d 645
• Parties: In the Matter of the ESTATE of Alberto SPANO, deceased. Santo SPANO, Claimant-Appellant, v. Vincent J. COMMISA, Administrator of the Estate of Alberto Spano, deceased, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 263

49 N.J. 263

229 A.2d 645

In the Matter of the ESTATE of Alberto SPANO, deceased.

Santo SPANO, Claimant-Appellant, v. Vincent J. COMMISA, Administrator of the Estate of Alberto

Spano, deceased, Defendant-Respondent.

No. A--65.

Supreme Court of New Jersey.

Argued Jan. 23, 1967.

Decided May 8, 1967.

Robert J. Carluccio, Hoboken, for claimant-appellant (Russel E. Greco, attorney).

Ferdinand J. Biunno, Newark, for defendant-respondent.

William J. Walsh, Deputy Atty. Gen., for respondent State (Arthur J. Sills, Atty. Gen., attorney).

Louis Sherman, Newark, appeared on behalf of Giuseppe Spano, Pietro Spano, Nicolena Spano Mararesi, allegedly the cousins of decedent (Raff, Sherman & Scheider, Newark, attorneys).

The opinion of the court was delivered by

SCHETTINO, J.

The question in this case is whether a child acknowledged by his natural father under Italian law is entitled to inherit his father's estate in New Jersey.

The father, Alberto Spano, died intestate and a resident of Newark, New Jersey, owning property there.

He was born in Italy. During the period of 1907 to 1915 he cohabited with Leonarda Todaro in the town of Calatafimi, Province of Trapani, Italy. No ceremony of marriage was ever performed. On January 25, 1907 a child, Santo Rosetti, was born to them. Alberto supported Santo from the date of his birth until he reached majority, and even after migrating to Newark in 1915. For a period of three years during the late 20's, Santo served in the Italian Army under the name of Santo Spano.

On December 11, 1937, in Newark, Alberto Spano executed a document which he filed in Italy, in compliance with Italian law acknowledging Santo as his natural child. As one of the results of the acknowledgment, the birth record of Santo, in the registry of Calatafimi, was changed to note the fact that Santo Rosetti was henceforth to be known as Santo Spano. A similar document was executed by Leonarda Todaro in 1957, and once again the birth certificate was amended.

In 1938 Alberto referred to Santo as his son, and executed an affidavit of support in order to facilitate Santo's coming to the United States. A visa was issued by the Italian government to Santo Spano. Santo arrived in the United States in 1940. He became a United States citizen in 1948, and resided with Alberto in Newark until Alberto's death on November 29, 1956. During this entire period Alberto introduced Santo to his friends and acquaintances as his son.

As stated above, Alberto died intestate, leaving no spouse and no child other than Santo. He had married twice but both wives had predeceased him. An administrator of Alberto's estate was appointed by the court.

In April 1962 Santo moved before the Essex County Court, Probate Division, for an order discharging the administrator on the grounds that he was inadvertently and improperly appointed administrator as Santo was the true and only heir of Alberto. The trial court ruled that Santo was not the heir or next of kin of Alberto and ordered Santo to account to the administrator for the rental income on the realty owned by Alberto on the date of his death. The trial court ruled that the status of an acknowledged natural child does not confer upon Santo the rights of a legitimate child. It could find no authority for the proposition that the status of an acknowledged natural child, created by a foreign country, the residence of the child, should give rise to rights of inheritance under the law of decedent's domicile (here, New Jersey) to a person claiming to be the recognized natural child.

In August 1962 Santo moved, under R.R. 4:62--2, to vacate the order. As a result of a hearing on the motion, the trial court entered an order reciting that further testimony and proof were required. The hearing was finally held in December 1963. In January 1964 the court entered an order denying the motion to vacate. The court, once again, found that whatever status Santo achieved under Italian law, he did not achieve a status of legitimization under the laws of New Jersey and, thus, he was not entitled to inherit Alberto's estate.

On February 5, 1964 Santo appealed to the Appellate Division, where he offered affidavits of experts in Italian law as to the rights of an acknowledged natural child to inherit from his father's estate. The Appellate Division affirmed the trial court's determination because the proofs were inadequate to establish that Santo had been legitimatized by the procedures taken by Alberto.

Although certain persons believe they are the surviving next of kin, i.e., cousins of the decedent, they have failed to produce any evidence of their relationship to the decedent. Nevertheless, they have participated in these proceedings. Their attorneys appeared at this argument, so they are bound by our determination.

The State of New Jersey, to which the decedent's estate will escheat if it is found that the decedent died without heirs, next of kin, or surviving spouse, has filed a statement in lieu of brief, R.R. 1:7--4(b), R.R. 2:7--1, in which the State joined with the brief of the administrator. Some procedural difficulties have been raised. Where a contest exists between the State (here, the State seeking an escheat) and one of its citizens (here, decedent's relatives seeking inheritance), justice requires that the merits of the dispute be resolved.

I

Santo argues that whether a particular child has acquired the requisite status of legitimacy to bring him within the class of persons permitted to inherit in New Jersey, is a question not of descent and distribution but of status. Such status is to be determined by the law of the residence of the child at the time and the place of acknowledgment, and not by the law of the situs of the land.

The administrator contends that Santo is not the legitimated child of decedent Alberto Spano within the meaning of N.J.S. 3A:4--7, N.J.S.A., which provides:

'For the purpose of descent and distribution under this chapter to, through and from an illegitimate child, such child shall be treated the same as if he were the legitimate child of his mother, so that he and his issue shall inherit and take from his mother and from his maternal kindred, including his maternal ancestors, descendants and collaterals; and they, from him and his issue. When parents of an illegitimate child shall marry subsequent to his birth and recognize and treat him as their child, such child shall be deemed to have been made the legitimate child of both of his parents for the purpose of descent and distribution to, through and from him under this chapter.'

The administrator reasons that whether a child has acquired the requisite status of legitimacy to bring him within the class of persons permitted to inherit in New Jersey is a question of descent and distribution, and as Santo was not legitimated under N.J.S. 3A:4--7, N.J.S.A., he is not entitled to inherit his father's estate. In addition, the administrator urges that the act of acknowledgment performed by Alberto after the birth of Santo will legitimatize Santo as to Alberto only if the law of the domicile of Alberto at the time so provides. New Jersey, the domicile of Alberto, does not so provide and thus Santo may not inherit.

Finally, the administrator argues that the status of an acknowledged natural child under Italian law is not the equivalent of a legitimate child under Italian law and, therefore, even if Italian law is applied to determine the legitimacy of Santo, his claim must still be rejected. As Santo is not Alberto's legitimate child, he may not inherit from Alberto.

II

A preliminary determination must be made as to whether the effect of the acknowledgment of Santo by Alberto is governed by Italian law or New Jersey law.

It does not necessarily follow that for one to be the acknowledged natural son of his father he must be such under the internal law of the situs of the land to be inherited, for under New Jersey conflict of law rules, the status and relationship of a person to another person are fixed by the law of the state or country having jurisdiction to grant the status so claimed. Stellmah v. Hunterdon Coop. G.L.F. Serv., Inc., 47 N.J. 163, 173, 219 A.2d 616 (1966), and Zanzonico v. Neeld, 17 N.J. 490, 497--499, 111 A.2d 772 (1955).

In Zanzonico, a child had been adopted under a decree entered in Italy, which decree did not comply with the adoption laws of New Jersey. The court held that this judgment of adoption granted by a foreign country should be given the same stature as if the judgment had been rendered and entered in our State because it was not contrary to the policy of our State. In Stellmah, a child who was, under Quebec law the adopted son of decedent at the time of his death was held to be entitled to workmen's compensation death benefits under the New Jersey Workmen's Compensation Act, even though the adoption did not comply with the laws of New Jersey.

Thus, if New Jersey law is to govern the status of Santo, it will so govern not because New Jersey law governs the descent and distribution of Alberto's property, but because New Jersey was the domicile of the father when the acknowledgment took place and, thus, New Jersey had jurisdiction to affix the status. If Italian law is to be applied, it is so applied because Italy was the residence of Santo at the time he was acknowledged and, thus, Italy had jurisdiction to affix the status of Santo.

We hold that the acknowledgment of a child under the law of a jurisdiction which is the residence of the child at the time of the acknowledgment will be given the same effect as though such acknowledgment had been rendered and entered in this State. See In re Lund's Estate, 26 Cal.2d 472, 159 P.2d 643, 62 A.L.R.2d 606 (Sup.Ct.1945); Annotation, 87 A.L.R.2d 1274, 1280 (1963). There is no public policy in New Jersey against such legitimations or acknowledgments.

It would be neither just nor desirable to deny the status conferred...