For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld, Burling and Ackerson. For reversal -- None. The opinion of the court was delivered by Case, J.
The appeal is from a judgment of the Atlantic County Court, Probate Division, and was certified on our motion from the list of the Superior Court, Appellate Division. The judgment confirmed the order of the Surrogate of Atlantic County admitting to probate the last will and testament of John A. Gillies and issuing letters testamentary thereon to Martha Gillies, and determined that Nicholas G. Gillas is not entitled to any portion of and has no interest in the decedent's estate.
The controversy centers on the alleged adoption by the decedent of Nicholas G. Gillas under a decree of the Greek courts and the effect to be given to that decree in the distribution of the decedent's estate.
John A. Gillies and Martha Gillies were husband and wife, domiciled at Cologne, Atlantic County, New Jersey. Mr. Gillies' will, executed October 3, 1945, after giving $2,000 to his brother Nicholas, left everything to his wife, Martha Gillies. In the will was this paragraph:
"It is my wish and I hope that my said wife will adopt one of my nephews, a son of either Demitrios A. Gillies, or George Gillies, my brothers now living in Corinth, Greece, or, if it be her desire, a son of each of my said brothers, provided, of course, that said child or children are minors at the time of my decease, and that he or they will immigrate to this country and provide or procure the necessary consent or consents to his or their adoption by my said wife, to the end that the parents of said child or children shall be divested of all legal rights and obligations due from them to the said child, or from the child to them, and provided further, that the said child or children so to be adopted, by order in such proceedings, be awarded and shall adopt the surname of Gillies as and for their family name or names."
Nicholas G. Gillas is a son of the testator's brother George Gillas, named in the will as George Gillies.
John A. Gillies died at Clearwater, Florida, January 5, 1947. His will was probated in Atlantic County, New Jersey, January 20, 1947, and letters testamentary were issued to Mrs. Gillies. On September 14, 1948, the Guarantee Bank and Trust Company as guardian ad litem of Nicholas G. Gillas filed its petition in the Atlantic County Surrogate's Court seeking to set aside the probate and grant of letters. An order was made calling upon Martha Gillies to show cause why the prayer of the petition should not be granted. It was later enlarged to include the prayer that Nicholas be declared entitled as though John A. Gillies had died without a will. After hearing the judgment under appeal was entered.
The contention of the appellant is that the decedent, by a decree of the Corinth Court of First Instance in the Kingdom of Greece, dated August 29, 1946, in a proceeding initiated by him on March 22, 1946, adopted Nicholas George Gillas (whom we shall call Nicholas), 16-year-old son of the brother George, a resident of Corinth; that under our statute, R.S. 9:3-9, an adopted child becomes entitled on the death of the adopting parent to the same rights of inheritance and distribution as if born in lawful wedlock; that R.S. 3:2-15, providing that a will, made when a testator had no issue living wherein any issue he might have is not provided for or
mentioned, shall be void and the testator be deemed to die intestate if, at his death, he leave a child or issue, applies to an adopted child equally with a natural child, and that inasmuch as Nicholas was not mentioned in the will but was later adopted the decedent must be deemed to have died intestate and his property to have passed to Nicholas in the same manner and to the same extent as though the latter had been born naturally after the execution of the will and had not been provided for or mentioned therein. A copy of the decree was admitted in evidence, together with what is called an "official" translation. Our only knowledge of the contents of the decree comes from that translation.
The decree is the backbone of appellant's case. Without it the case falls; with it appellant may or may not prevail, depending upon various elements. Objection was and is made to the technicalities of proof, but we think that the decree, for what it is, is sufficiently authenticated. The effect to be given to it remains to be determined. It should be noted, however, that no copy of the full record, exemplified or otherwise, was offered in proof. We leave unanswered the quaere whether a mere recital in a decree that A.B., at the institution of a proceeding, was "present through his attorney-lawyer" and by his petition sought a proclamation of adoption, is everywhere conclusive by international comity of the proposition that A.B. actually brought the suit, regardless of the fact that he was then, theretofore had been, and thereafter remained, a domiciliary of another country and was not then or thereafter in the country where the petition was filed, the proceeding had and the decree rendered. (For a discussion of the right of a defendant to attack a foreign judgment in a suit thereon in this jurisdiction, see Matera v. Hauptmann, 13 N.J. Misc. 483 (Sup. Ct. Circ. 1935)). We have nothing but the decree itself, amplified by a declaration of consent, which we shall mention in detail, taken in New York. The declaration of consent may not be enlarged into a consent to jurisdiction. [8 NJ Page 93] On its face the decree proclaimed that the decedent did, as alleged, adopt Nicholas; but there are internal indications which point toward, or at least are not inconsistent with, the contention of respondent that neither she nor the decedent sought or knowingly consented to a Greek decree of adoption. Although the decree does not include a transcript of the proceedings, it does, with some fullness, show the course of them. It begins by stating that the applicant "John Athanas. Gillas" was "present through his Attorney-lawyer Agath. Panaghiotides" and that by his petition addressed to the court he asked "that Nicholas G. Gillas be proclaimed his adoptive son, in accordance with provisions of Articles 1632 and following of the Civil Code in force." That petition is not before us, and we have no knowledge of its existence or of its form or substance except from the recitals of the decree. There is no recital that it was signed by the applicant in person and there is no recital or proof that M. Panaghiotides, the attorney who undertook to file the petition, was working under authority from our decedent. Mrs. Gillies testifies that she received and filed her husband's correspondence and that she never saw any letter or envelope bearing the name of Agath. Panaghiotides. Decedent assuredly was not there in person. That is important because it is only by the allegations imputed to the petition that Gillies is brought in as a party to the cause. The efficacy of the petition is greatly impaired in that the prayer is alleged to have been for the proclamation of adoption "in accordance with provisions of Articles 1632 and following of the Civil Code." Theodore Sakellariadas, a citizen of Greece and the secretary of the Greek General Consulate in New York City, testifying in behalf of the present appellant as an expert in Greek law, said that the designated statutory provisions had no relation to the law of adoption and that the pertinent article was number 1576. Inasmuch as the Kingdom of Greece has no common law, and is, according to the proofs, strictly a code state, we fail to understand how the petition, so providing and remaining unamended, could be made the basis for a
judgment not comprehended by code sections upon which it rests. The extent to which the decree became potentially a judgment against Mr. Gillies may be measured by the reach of the remedy here sought, namely, the transfer of a major portion of his estate contrary to the provisions of his will. The thought may be expressed in another way: if the court at Corinth had jurisdiction to decree upon Gillies the relationship of adoptive father, effective here, then it had the authority, exercised by the same decree, to determine the applicability of our laws concerning the distribution and inheritance of decedent's estate, since our adoption laws and our distribution and inheritance laws are to be read together, and on the question of comity the two may not be severed. (On the general construction of our statutes from which this statement of the law is deducible see In re Book, 90 N.J. Eq. 549 (E. & A. 1919) and In re Alter, 92 N.J. Eq. 415 (Prerog. 1921)).
The next recital in the decree is that "Decision No. 206/46 of the said court was issued ordering as per contents of same." What that decision directed we do not know as the numerals are not met with again. Possibly they are a misprint for "Decision 208/46" which we next find stated as the authority for obtaining a "declaration which ought to be made in the presence of the Greek Consul General in New York of the United States of North America, appointed by the latter and aforesaid decision of the court as an introducing official for the case under consideration, by the applicant and his wife to the effect that they consent to adopt Nicholas G. Gillas * * *." The decree recites further proceedings in the Greek courts, including the taking of testimony there; also the receipt of a copy of the declaration, already mentioned, the incidents of which we shall presently discuss, taken before the Greek Consul General in New York which, according to ...