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In re Probate of

Decided: April 25, 1955.

IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF EMMA L. HOLIBAUGH, DECEASED


On appeal from the Monmouth County Court, in the Probate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Justice Wachenfeld. The opinion of the court was delivered by Heher, J.

Heher

The question raised here, res nova in New Jersey, is whether the descent and distribution of the property of an adopted adult is governed by the statute in force when the decree of adoption is entered or at the time of the adopted person's death.

On September 16, 1949, by a decree entered in the old Monmouth County Orphan's Court, a tribunal of competent jurisdiction, one John Bennett adopted Emma L. Holibaugh, then of the age of 56, pursuant to R.S. 1937, 2:39-1 et seq. The adoptive parent died March 2, 1950, leaving a will designating the adopted adult as the residuary devisee and legatee; and the latter died November 13, 1953, without issue, leaving among her effects a paper writing purporting to be her will and testament. On November 24 ensuing, George Walter Holibaugh and Frederick R. Burns, the deceased's brother of the full blood and brother of the half blood, respectively, neither of whom the purported will designated as a beneficiary, interposed a caveat against probate of the instrument; and there was a motion for a "dismissal" of the caveat on the ground that the caveators "have no interest in the result" and so "no legal standing" to enter the caveat. This, on the hypothesis that by force of N.J.S. 2 A:22-3, effective January 1, 1952, supplanting R.S. 1937, 2:39-7, the caveators, even though of the blood and the natural next of kin of the deceased, have no right of inheritance

either from or through the deceased. Judge Simmill granted the motion, 33 N.J. Super. 232 (Prob. Div. 1954); and the caveators' appeal to the Appellate Division of the Superior Court is now here for decision on our own motion.

The issue is thus one of interest and capacity to sue and to invoke the judicial process to inquire into the testamentary sufficiency of the writing. A caveat is not maintainable by a mere volunteer; it is available only to one "who would be injured by the probate of the will" and as such is entitled to an opportunity to be heard on the question. In re Myers' Estate, 69 N.J. Eq. 793 (E. & A. 1906). See also In re Van Doren's Estate, 119 N.J. Eq. 80 (Prerog. 1935); Middleditch v. Williams, 47 N.J. Eq. 585 (E. & A. 1890); In re Coursen's Will, 4 N.J. Eq. 408 (Prerog. 1843).

The earlier statute, R.S. 2:39-7(b), effective when the adoption was decreed, is read as qualifying the natural next of kin of the deceased adopted adult as the inheritors of her intestate property and controlling as the statute in force when the decree of adoption was made, even though the later revision, in effect when the adopted person died, provides otherwise. By the latter it is ordained, N.J.S. 2 A:22-3, that (a) the right of the person adopted, and of such persons as legally represent him on his death, to take and inherit intestate personal and real property from his natural parents and their kindred shall not be altered by the adoption, and (b) in "all other respects, all rights, privileges and obligations due from the natural parents to the person adopted and from the person adopted to them and all relations existing between such person and them shall be at an end, including the right of the natural parents and their kindred to take and inherit intestate personal and real property from and through the person adopted."

The argument is that (a) the "effect and consequences" of a decree of adoption made pursuant to R.S. 2:39-1 et seq. "were not changed by a subsequent repeal of that statute," citing L. 1951, c. 344, providing that "such repeal shall not affect any right now vested in any person pursuant to the provisions" of the title, "nor any remedy" in a pending

action or proceeding thereunder, and so the statute in effect at the time of the adoption determines the takers under the statutes relating to descent and distribution, and (b) the later statute "contains words of futurity and was intended to operate prospectively only" and "does not disturb the effect of prior adoptions." We find these points to be without substance.

Although known to the ancients of Greece and Rome, the right of adoption was unknown to the common law of England. Ross v. Ross, 129 Mass. 243 (Sup. Jud. Ct. 1880); Carpenter v. Buffalo General Electric Co., 213 N.Y. 101, 106 N.E. 1026 (Ct. App. 1914); Re George Walworth's Estate, 85 Vt. 322, 82 A. 7, 37 L.R.A., N.S., 849 (Sup. Ct. 1912); In re Session's Estate, 70 Mich. 297, 38 N.W. 249 (Sup. Ct. 1888); Morse v. Osborne, 75 N.H. 487, 77 A. 403, 30 L.R.A., N.S., 914 (Sup. Ct. 1910). See also Mobley v. Brown, 151 Okl. 167, 2 P. 2 d 1034, 83 A.L.R. 1015. Thus in this country the right itself and its legal consequences are of statutory origin, to serve a socio-familial policy of prime import. Adoption signifies the means by which one may become the child and heir of another. It is in its essence the relational status of parent and child having given legal attributes. Here, for instance, the adopting parent or parents must be at least 15 years older than the person to be adopted. R.S. 2:39-2; N.J.S. 2 A:22-2. Under the Roman civil law, designed as it was to provide for the continuance of the rites of the family cult, the adopted child came under the potestas of his adoptive parents, and was rendered incapable of inheriting from relatives of his own blood. Inst. 1, 9, 12; Dig. 2, 1, 13, 1; Dig. 14, 1; Dig. 14, 4, 1, 4; Co. Lit. 7 b, 237 b. See Ross v. Ross, cited supra. In New Jersey the ...


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