Eastwood, Jayne and Smalley. The opinion of the court was delivered by Jayne, J.A.D.
It sometimes seems almost lamentable that the clandestine moral laxities of a popularly respected man are not permanently interred with his bones. But money talks. It can destroy the vows of secrecy and demolish trust and gratitude. It is the cause of many astonishing somersaults. However, judges are not expected to be pulpiteers, and it is law in relation to facts rather than sentimentality that must guide the administration of justice in our courts.
One Henry Welsh Rogers died testate at the age of 75 on January 22, 1951, leaving an estate in excess of $1,000,000.
His last will, dated July 18, 1950, designated Josephine Chesney Sorensen (now Mrs. Virgil McCann) the life beneficiary of the substantial residue of his estate. Previous litigation concerning the estate may be found reported in 15 N.J. Super. 189 (Cty. Ct. 1951) and in 13 N.J. 508 (1953).
In the determination by the bureau of the Division of Taxation of the amount of transfer inheritance tax properly to be assessed upon the taxable interests transmitted by the decedent to Mrs. McCann, whom we shall for convenience and clarity hereafter distinguish as Josephine, the representatives of the decedent's estate advocated that Josephine should be recognized either as the illegitimate child of the decedent comprehended by L. 1934, c. 244, p. 704; R.S. 54:34-2; vide, Rogers, Trans. Inh. Tax, p. 148, § 366, or as a child to whom the decedent stood for the requisite period in the mutually acknowledged relation of a parent within the import of R.S. 54:34-2.1, and that the transfer should be assessed with the same exemption and at the same rate as a like transfer to a child of a decedent born in lawful wedlock.
Thus occasioned, an inquiry was conducted by an investigator of the division at which witnesses were orally interrogated and exhibits submitted. Upon a study of the record so comprised and evidently of some additional items of relevant information already in the files of the division, the supervisor resolved that the essential factual basis of the claim of the representatives of the estate had not been adequately established. The tax assessment was made accordingly. It is from that determination that the representatives of the estate and Josephine, the life tenant, prosecute the present appeal.
Rather than expel the scent of gold from her nostrils and forego a claim for this relatively inconsequential monetary advantage, leaving the memories of her deceased mother and of her affectionate and generous benefactor unsullied, Josephine preferred the endeavor to establish that her mother, Mrs. Chesney, had been an adulteress, the husband, Mr. Chesney, a cuckold, and the decedent a seducer.
In acquainting ourselves with the information divulged to sustain the claim for the tax reduction we have recognized that a strict obedience to the rules of evidence would exclude much of it.
It is conceded that Josephine is the daughter of Adeline Schultz Chesney, who at the time of Josephine's birth on June 7, 1911 was the lawful wife of Martin Chesney. Josephine alone states that her mother and Mr. Chesney had been separated for several years before her birth. To suppose that Josephine possessed any prenatal knowledge of such a detachment of her mother and her husband is purely illusory. It is also evident that at the time of Josephine's conception and birth the decedent was likewise married. Perhaps significantly the marriages of both were dissolved by divorce in 1918.
The information imparted solely by Josephine generates the rational inference that from the inception of her capacity to remember, her mother and the decedent were playmates, yea, bedmates on the periodical occasions of the decedent's visits to her mother's home. As president of the International Red Cross the decedent was a traveler over wide stretches of the globe. The decedent probably maintained Mrs. Chesney and Josephine. Incidentally, it leaked out at the hearing that Josephine had engaged in a rash and adventurous marriage at the age of 16, the annulment of which the decedent financed.
Upon Mrs. Chesney's death on May 1, 1929 the decedent was duly appointed the guardian of Josephine. She was then 18 years of age and she thereupon became an associate member of the decedent's quarters, residing with him about six months of the year and at a girls' club in New York at his expense the remaining portion of ...