On order to show cause why judgment of probate should not be set aside.
[19 NJSuper Page 388] The question is whether, by the terms of N.J.S. 3 A:3-10, the will of decedent is rendered invalid. The issue, raised by a co-executor, is occasioned by apprehension
that arises from the decision of our former Court of Errors and Appeals in Kanzler v. Smith , 123 N.J. Eq. 602 (1938). As to the right of an executor to contest a will, see In re Babcock , 112 N.J. Eq. 374 (E. & A. 1932) and Green v. Blackwell , 32 N.J. Eq. 768 (E. & A. 1880).
The will was executed June 7, 1948. Thereafter, on January 5, 1951, by decree of this court, testatrix formally adopted Benjamin Reed, Jr., the infant beneficiary named in the will. Throughout the period that includes all events relevant to the inquiry testatrix was unmarried, a prior marriage having been dissolved by divorce; and she was without issue. She died January 17, 1952, leaving her surviving, among others, the aforementioned son by adoption. The statute reads:
"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 or leave his wife enceinte of a child which shall be born." (N.J.S. 3 A:3-10.)
It appears to be clear in New Jersey that the leaving of an after-adopted child is within the intent and meaning of the statutory condition: "if, at his death, he leave a child or issue." In re Book , 90 N.J. Eq. 549 (E. & A. 1919), reversed In re Book , 89 N.J. Eq. 509 (Prerog. 1918); In re Alter , 92 N.J. Eq. 415 (Prerog. 1921). The present statute is a re-enactment of R.S. 3:2-15. In the Book case it is the view of the Court of Errors and Appeals that the Wills Act and the statutes of descent and distribution must be construed in pari materia with the Adoption Act, and the court declares:
"* * * the legislative intent to be gathered from a reading of all these statutes was to vest in adopted children all the rights and privileges which by the act concerning wills, the statute of descents, and the statute of distribution had been conferred upon children born in wedlock; that is to say, to place them in the same position as if they had been natural born children of the decedent, so far as those statutes are concerned -- to substitute the lawful children of the decedent, no matter what the source of their origin, in the place of those
born of his body. To give this legislative purpose its full significance, the meaning of the words 'child,' 'children,' and 'issue,' whenever appearing in the various statutes comprising the legislative system embodied therein, when used with relation to the testator or intestate, must be considered to have been enlarged so as to include adopted as well as natural born children within their scope."
The question here submitted has been decided in other jurisdictions (cases infra), but never in this State. It was before the court in the recent case of Guarantee Bank and Trust Company v. Gillies , 8 N.J. 88 (1951), but its determination was found to be unnecessary.
It must be postulated on the authority cited that for all the purposes of this decision the law's equation of adoption and birth is absolute; from which it follows that the equation must be applied fully to the statute and in all its details. Making the two things equal has connotations that are not to be avoided, and which must be followed through. True, Benjamin Reed, Jr., is "provided for" in the will and, of course, he is "mentioned." But is he "provided for or mentioned" as "issue," that is in the interpretive sense? It is plain to me that he is not; and to require anything less than that would be, in a case like this, to pervert the meaning and application of the statute.
In the first place, when we think of a testator's providing for or mentioning future "issue" there is in mind the prospect of the parent and child relation, in the natural sense, and nothing else. And it goes without saying that the prospect is entirely uncomplicated by the possibility of any other relation affecting the persons involved prior to the event whose contemplation is in question. It is entirely different when the dispute concerns not a future birth but a future adoption. In the latter case the nature of the filiation is such that if and when the prospect of it does occur, it may, and usually does, concern one already in being, and toward whom the testator might well have, as testatrix in ...