Zanzonico v. Neeld

• Decision Date: 21 February 1955
• Docket Number: No. A--90,A--90
• Citation: 17 N.J. 490,111 A.2d 772
• Parties: Bertha ZANZONICO, Administratrix of the Estate of James Zanzonico, deceased, Appellant, v. Aaron K. NEELD, Director, Division of Taxation, Department of the Treasury, Respondent. In the Matter of the Transfer Inheritance Tax Assessment in the ESTATE of James ZANZONICO, Deceased.
• Court: New Jersey Supreme Court

Page 490

17 N.J. 490

111 A.2d 772

Bertha ZANZONICO, Administratrix of the Estate of James Zanzonico, deceased, Appellant, v. Aaron K. NEELD, Director, Division of Taxation, Department of the Treasury, Respondent In the Matter of the Transfer Inheritance Tax Assessment in the ESTATE of James ZANZONICO, Deceased.

No. A--90.

Supreme Court of New Jersey.

Argued Jan. 24, 1955.

Decided Feb. 21, 1955.

Rocco F. Senna, Newark, argued the cause for appellant (William S. Cantalupo, Newark, attorney).

William A. Moore, Deputy Atty. Gen., argued the cause for respondent (Grover C. Richman, Jr., Atty. Gen., attorney).

The opinion of the court was delivered by

WACHENFELD, J.

This appeal from an assessment of a transfer inheritance tax imposed by the Transfer Inheritance Tax Bureau was certified here on our own motion prior to argument in the Appellate Division. The facts, not being disputed, are stipulated.

In February 1950 James Zanzonico and his wife, Bertha, made an application to the Court of Appeal of Potenza, Italy, for the adoption of James' four-year-old orphaned niece, Maria Zanzonico, who was then residing in the town of Militerno (Potenza), Italy. James and Bertha at the time resided in the City of Newark, had been married for 20 years and were childless. It was necessary to institute the proceedings in Italy rather than New Jersey as it would not have been possible to bring the child here because of the United States immigration laws requiring a foreign child to be first adopted before being admitted to this country.

The adoption proceedings were instituted by a lawyer in Italy who was given a power of attorney for that purpose. In connection therewith, James and Bertha filed various moving papers with the Court of Appeal in Potenza in satisfaction of the requirements of the law of Italy regulating the cause. Among the documents filed were certificates as to the character of the petitioners and affidavits as to their ability to provide for the child's welfare.

On February 8, 1951, a decree was duly entered by the Court of Appeal of Potenza approving and granting the adoption of Maria. It is conceded this court had jurisdiction and that the decree rendered was good and valid in Italy and fully recognized by its courts.

In October 1951 Bertha journeyed to Italy and, upon application to the American Consul there, the United States Department of Immigration and Naturalization, taking cognizance of the Italian adoption decree, granted permission to bring Maria to America. Upon their arrival in America in December 1951, Maria took up residence with James and Bertha in their home in Newark, where she lived as their natural child, receiving the love, care and devotion customarily bestowed upon a child. James died on March 23, 1954 and since his death Maria has continued to reside with Bertha at the same address.

James having died intestate, Bertha became the duly qualified administratrix of her deceased husband's estate. In this capacity, she executed and filed a report and appraisal of the estate with the Transfer Inheritance Tax Bureau, listing the beneficiaries of the estate herself, as wife of the decedent, entitled to dower in the real estate and one-third of the personalty, and Maria, the adopted daughter of the deceased, entitled to the real estate, subject to the dower rights of Bertha, and two-thirds of the personalty.

An examiner of the bureau, upon reviewing the facts recited above, determined Maria was not entitled to any share in the estate of James and issued a tax assessment against the estate in the amount of.$328.63. From the levy so made the present appeal is taken.

Since the act of 1902, the statute law of our State governing the adoption of children has specifically accorded such children the right of inheritance from their adoptive parents. N.J.S.A. 9:3--9. The dedicated purpose of the statute is to clothe the adopted child with all the rights of a natural child in regard to the descent and distribution of property under our law. In re Book's Will, 90 N.J.Eq. 549, 107 A. 435 (E. & A.1919). The statute embodies the fundamental public policy of this State with respect to the status and welfare of adopted children.

Admittedly, the claim made on behalf of Maria to a share in James' estate is, quantitatively, the share to which she would be lawfully entitled as a natural child of the deceased. See N.J.S. 3A:4--2, N.J.S.A. The bureau, however, rejected the claim, based upon a finding that Maria had not resided with her adoptive parents prior to the granting of the foreign adoption decree. The bureau therefore determined, and urges here, that the Italian court's decree cannot be sustained in this State since our law requires a child to live continuously in the home of the prospective parents for not less than one year prior to the hearing of a petition for adoption, N.J.S.A. 9:3--5, a requirement not found in the Italian law.

This conclusion was motivated by our decision in Guarantee Bank & Trust Co. v. Gillies, 8 N.J. 88, 83 A.2d 889 (1951), as the examiner for the bureau cited it in his findings of fact. There we held that an adoption decree granted by a court at Corinth, Greece, under circumstances more fully stated hereafter, would not be recognized in allowing the adopted child to inherit property of a New Jersey decedent.

Prior to any legislation on the subject, it was firmly established in our decisional law that adoption decrees entered in foreign jurisdictions would be upheld here as to the descent and distribution of New Jersey property under our laws. In re Finkenzeller's Estate, 105 N.J.Eq. 44, 146 A. 656 (Prerog.1929) affirmed 107 N.J.Eq. 180, 151 A. 905 (E. & A.1930); Greaves v. Fogel, 12 N.J.Super. 5, 78 A.2d 719 (App.Div.1951). Our course in this respect was fully in accord with the prevailing view among American jurisdictions. See Greaves v. Fogel, supra, 12 N.J.Super. at page 9, 78 A.2d 719; Restatement of the Law, Conflict of Laws, § 143; 1 Am.Jur., Adoption of Children, § 67.

No question of full faith is involved so far as the adoption decrees of sister states are concerned, but we can, consistent with our federal constitutional obligations under the Full Faith and Credit Clause, refuse to recognize foreign adoption decrees for inheritance purposes as the laws of New Jersey alone control the descent and distribution of the property of its decedents. Hood v. McGehee, 237 U.S. 611, 35 S.Ct. 718, 59 L.Ed. 1144 (1915). However, we have rejected the provincial approach and, in accord with traditional concepts of comity and in the exercise of due regard for the welfare of the adopted child, have accorded recognition to foreign adoption decrees for inheritance purposes, subject only to two conditions which pertain generally to the recognition of any foreign judgment: (1) that the foreign court had jurisdiction to fix the status of the child with respect to the adoptive parents, and (2) that the recognition of the foreign decree will not offend the public policy of our own State. In re Finkenzeller's Estate, supra, 105 N.J.Eq. at page 46, 146 A. 656.

The judgments and decrees of foreign nations are recognized and enforceable here on like principles. Caruso v. Caruso, 106 N.J.Eq. 130, 138--139, 148 A. 882 (E. & A.1929); Romanchick v. Howard Savings Institution, 118 N.J.L. 606, 608, 194 A. 185 (E. & A.1937); Ritchie v. McMullen, 159 U.S. 235, 16 S.Ct. 171, 40 L.Ed. 133 (1895); Ingenohl v. Walter E. Olsen & Co., Inc., 273 U.S. 541, 47 S.Ct. 451, 71 L.Ed. 762 (1927); see 50 C.J.S., Judgments, § 904.

It is conceded here that the Court of Appeal of Potenza had jurisdiction to grant the decree of adoption. The bureau, in challenging the decree, relies solely on the ground that it violates the public policy of our adoption laws. The bureau interprets our decision in the Gillies case, supra, to hold that the public policy of New Jersey, as expressed in N.J.S.A. 9:3--5, precludes us from recognizing a foreign adoption decree where the one-year prior residence requirement imposed by our adoption law is not complied with. An examination of the facts and our opinion in the Gillies ca...