On appeal from Division of Taxation, Department of the Treasury.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. 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 Moliterno (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 ...