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Matter of Estate of Cora Talmage Wehrhane

Decided: January 14, 1957.


On appeal from the Superior Court, Chancery Division.

For affirmance -- Justices Heher, Oliphant, Wachenfeld, Burling and Jacobs. For reversal -- Justice Weintraub. The opinion of the court was delivered by Oliphant, J. Jacobs, J. (concurring). Weintraub, J. (dissenting). Jacobs, J., concurring in result.


Cora Talmage Wehrhane executed her last will on January 5, 1925 and passed away two months thereafter, leaving Henry Wehrhane, her husband, and their only child, Dorothy, surviving.

The testatrix directed that the residue of her estate be placed in trust and named her husband a life beneficiary. Upon the latter's death, income was to be paid to Dorothy for her life with the provision that

"Upon the death of my * * * daughter, to pay over [the principal and any accumulations] * * * to the issue of my * * * daughter per stirpes absolutely." (Explanation supplied)

If Dorothy should "die leaving no issue her surviving," the principal was divisible in specified proportions between Dorothy's "husband * * * if living," Doris McGovern, a second cousin of testatrix, and six charitable institutions (now numbering four as a result of mergers).

Dorothy married Henry Lord in 1915. She has borne no children. In 1931, nearly six years after the death of her mother, Dorothy and her husband adopted an eight-year-old son, John Gardiner Lord.

Dorothy is living, divorced and remarried, and is receiving the trust income. Her adopted son John now has a family of his own. He and his children claim to be entitled to the

trust corpus upon Dorothy's death as her "issue." The contention is resisted by the charitable beneficiaries and Doris McGovern. A determination of the question is essential in order that certain other issues raised in an accounting proceeding (instituted by the present trustee) may be resolved. The trial court held that the word "issue" as used in testatrix' will did not include adopted children. John Gardiner Lord and his children filed an appeal to the Superior Court, Appellate Division, and we certified the cause prior to a review below.

All parties are in accord respecting the decisional law of our State that a provision for a "child," "children" or "issue" of another is presumed not to include an adopted child or children. See, e.g., In re Fisler, 131 N.J. Eq. 310 (Prerog. 1942), affirmed 133 N.J. Eq. 421 (E. & A. 1943); Fidelity Union Trust Co. v. Potter, 8 N.J. Super. 533 (Ch. Div. 1950). The rule has general acceptance. 5 American Law of Property (1952), secs. 22.34, 22.36. The same authorities invariably recognize that the presumption may be sufficiently contradicted in the total context of the instrument or the circumstances surrounding and existent at its execution or the death of the testator.

It is argued by John Lord, the adopted son, that the testatrix' will demonstrates a design to give to those persons who would be "nearest and dearest" to her only child Dorothy. For example, should Dorothy die without issue surviving, her husband, whoever he might be, was to share in the corpus; and other specific legacies were given to persons of Dorothy's age group and friends of the latter or children of friends of the testatrix. Emphasis is placed upon the fact that at her mother's death Dorothy had been married over nine years and had borne no children, and that testatrix herself had considered adopting a child at one time.

It appears clear, however, that the word "issue" was employed with something more than a passing consideration. The term in its normal usage connotes progeny to the remotest degree, Stickel v. Douglass, 7 N.J. 274, 277

(1951), or descendants, In re Fisler, supra, 133 N.J. Eq., at page 423, and because it is not confined in this sense to one generation it emphasizes the thought of kinship or blood relationship. 3 Powell on Real Property (1952), sec. 360; cf. 5 N.J. Practice (Clapp on Wills and Administration) (1950), sec. 124, p. 299. And absent a direction to the contrary, distribution to the descendants is always on a per capita basis, share and share alike. Hoyt v. Orcutt, 1 N.J. 454 (1949).

The instrument here was developed by a skillful lawyer who, it would appear, was well acquainted with the law of New Jersey in that the words used ("per stirpes absolutely") expressly controverted the presumption of a per capita distribution. It is fair to assume that equal attention was paid to the accepted understanding of "issue" and its legal consequences as a word of purchase. The legal consequence attaching to the term in 1925 was to exclude adopted children, a presumption which could have been as easily overcome as the rule of distribution merely by expressly including adopted children. L. 1902, c. 92, sec. 4, as amended (R.S. 9:3-9, repealed L. 1953, c. 264), in existence at the time of the execution of the will and at testatrix' death, concerning the effect of a decree of adoption upon rights of inheritance provided, inter alia, that an adopted child shall not be capable of taking property expressly limited to "the heirs of the body" of the adopting parent or parents. This statute deals with capacity to inherit. Although the words "to the heirs of the body," as used in their technical sense as creating a fee tail at common law, would not preclude the bequest in question here, see In re McEwan's Estate, 128 N.J. Eq. 140 (Prerog. 1940), the statute does not pronounce a rule of testamentary construction opposed to the judicial presumption that has always been attached to the word "issue" as a term of purchase and its consequent effect in determining the inclusion or exclusion of adopted children.

The surrounding circumstances are equally fruitless in sustaining the contention of John Lord. There is no indication

that Dorothy was incapable of bearing a child. At her mother's death she was but 29 years of age. There is no indication that she had ever considered adopting a child in her mother's lifetime. Not until five years after her mother's death did she consider the possibility. In short, we are not presented with a situation where the benefactor knew of the adoption when the will was drawn, In re McEwan's Estate, supra; In re Upjohn's Will, 304 N.Y. 366, 107 N.E. 2 d 492 (Ct. App. 1952), or even after the will was executed and prior to death, Bray v. Miles, 23 Ind. App. 432, 54 N.E. 446, 55 N.E. 510 (Ind. App. 1899); cf. Restatement of Property, sec. 287, comment (d) (1940).

At the hearing below expert opinion was offered to demonstrate that today societal regard for the family relationship is based upon sociological environment rather than biological connection, that the common impulse of our time is to accept adopted children into the same realm of family affinity as the natural born, suggesting thereby that the issue sub judice should be resolved in this light. Attention is invited to a rule of construction incorporated in L. 1953, c. 264 (N.J.S.A. 9:3-30) which would presumptively include adopted children as lawful issue in all testamentary documents executed after the date of the enactment.

The difficulty in the latter argument is two-fold. First, it assumes that the testatrix and her lawyer gave no more than cursory thought to the words "issue * * * per stirpes absolutely," which were used to direct the disposition of the major proportion of her estate. As previously noted, this assumption is not warranted, and it may be further observed that if testatrix had determined to benefit those who would be "nearest and dearest" to her daughter Dorothy the modus operandi of the versed scrivener would have been a power of appointment. Secondly, the societal attitude of today is not a barometer of public opinion 30 years past, and it is fundamental that in seeking the testamentary design we are to gravitate about the date of the document. Blauvelt v. Citizens Trust Co., 3 N.J. 545, 552, 553 (1950). This is strikingly demonstrated by Dr.

Montagu (John Lord's expert witness) who, in response to a query whether the attitude toward adopted children had changed in the last 26 years, replied, "It certainly has."

The decision below must be affirmed, not only in view of the words used to express the desire of the testatrix, but also, were it to be concluded that she did not consider the possibility of adopted children, in view of the presumption long recognized in this State that a bequest to the "issue" of another does not include adopted children. As stated by Chief Justice Gibson of Pennsylvania in Moore v. Smith, 9 Watts 403 (Pa. Sup. Ct. 1840), in referring to a rule of construction:

"It is a guide to certainty of result where it is necessary to choose betwixt suppositious intents in cases where it is nearly certain that there was no intent at all; and it, therefore, frustrates the testator's purpose as seldom as any other which could be employed."

Lastly, there was no error in the exclusion of the testimony of Margaret Logie, who, from all that appears, would have added nothing to the testimony of Dr. Montagu, the expert who developed the present day thoughts concerning adoption.

The judgment will be affirmed.

JACOBS, J. (concurring).

To conform with modern concepts, the Legislature has wisely provided that in the construction of any testamentary or other document (executed on or after January 1, 1954) "an adopted child shall be deemed lawful issue of the adopting parent unless such document shall otherwise provide." N.J.S.A. 9:3-30. However, as the majority opinion indicates the settled judicial presumption, in New Jersey as well as elsewhere throughout the country, has been to the contrary where, as here, the testatrix was a stranger to the adoption; and that has long been the general understanding of the legal profession which presumably has often acted in its light. See 1 Kocher, New Jersey Probate Law 805 (1916); Clapp, 1 Wills and Administration in New Jersey, § 66 (1937); 5 N.J. Practice (Clapp, Wills and Administration), § 124 (1950); cf. 5

American Law of Property, §§ 22.34, 22.36 (1952). In the instant matter the will was executed many years ago and is therefore not affected by the statutory change in the rule of construction. Accordingly, I reluctantly join in the affirmance of the judgment below.

WEINTRAUB, J. (dissenting).

Cora Talmage Wehrhane died on March 13, 1925, leaving a will dated January 5, 1925. Her only child, Dorothy Wehrhane Lord, adopted John Gardiner Lord by a judgment of our former Essex County Orphans' Court on January 14, 1931. The adoption accordingly occurred about six years after Mrs. Wehrhane's death, and she in fact never knew John. Dorothy had married about ten years before her mother's death. She has never had natural issue. The question is whether John is "issue" of Dorothy within the meaning of Mrs. Wehrhane's will.

Mrs. Wehrhane's estate, except for her residence, consisted of personalty valued at about $1,100,000 as of her death, and the corpus of the trust created by her will with accumulations is presently in the approximate sum of $1,600,000.

After some specific dispositions, Mrs. Wehrhane created the trust for her husband for life (he died in 1950), then for her daughter Dorothy for life (she ...

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