Conford, J.A.D. (temporarily assigned).
In this action plaintiff seeks relief of two kinds: (1) a declaration of the marketability of her title to certain lands and premises situate in the Borough of Chatham, requiring judicial construction for the first time of one of the provisions of L. 1902, c. 92, section 4, as amended by L. 1912, c. 28 (rights of inheritance of minor adopted children), and (2) a judgment directing the defendants Johnson specifically to perform a contract with the plaintiff to purchase the said property. The Johnsons have refused to accept a conveyance on the ground that plaintiff's predecessor in title, Thelma Adams Page, inherited the property as an adopted child and that under the act cited there is a possibility of reverter of title to the "next of kin" of Edna A. Page (sometimes known as Mary Edna Page), adoptive parent of Thelma Adams Page, contingent upon the death of the latter without issue. The next of kin of Edna A. Page have been joined as a class of numerous defendants by order permitting their representation by five named members of the class. R.R. 4:36. They have failed to defend and default has been entered as against them.
The case presents no factual issues but only matters of law. The pretrial order discloses these facts. Prior to September 16, 1920 Edna A. Page, then married to Harry DeB. Page, became vested with title to the premises in question under the name Mary Edna Page. On that day there was entered a decree of the Probate Court of the County of Essex, Commonwealth of Massachusetts, effectuating the adoption by Edna A. and Harry DeB. Page of a female child under the age of 14 years thereafter known as Thelma Adams Page. The child subsequently resided with the Pages at their home in Chatham in this State.
On May 23, 1923 Edna A. Page died intestate, resident in Chatham, survived by her husband and the adopted child Thelma. A sister, Eliza I. Adams, also survived. On September 3, 1924 Harry DeB. Page married the plaintiff. By deed dated March 4, 1935 the adopted child, Thelma Adams Page, unmarried, conveyed the property here involved
to Harry DeB. Page and his wife, plaintiff herein. Subsequently Thelma married and she has two children. Harry died in 1953 survived by his wife, their son and Thelma. The contract of sale referred to was entered into December 31, 1954.
The nature of an estate taken by inheritance depends upon the state of the law as of the time of the death of the intestate, In re Holibaugh's Will , 18 N.J. 229, 235 (1955). The legislation here pertinent, as of 1923, when Edna A. Page died, consists of L. 1877, c. 83 (p. 123), entitled "An Act providing for the adoption of children"; L. 1902, c. 92 (p. 259), which revised the 1877 act without substantial change other than to combine it with provisions for the custody and maintenance of minors in cases of separation and divorce; and L. 1912, c. 28 (p. 53), which contains an amendment not presently material. The 1877 statute, the first in this State to deal with adoption, fixed the jurisdiction and procedure of the courts in proceedings for the adoption of minors and then declared the status and legal relations consequent upon an adjudication of adoption substantially as follows in section 4 thereof (the following verbiage being as set out in the 1912 act):
"* * * and upon the entry of such decree of adoption the parents of the child, if living, shall be divested of all legal rights and obligations due from them to the child, or from the child to them; and the child shall be free from all legal obligations of obedience or otherwise to the parents; and the adopting parent or parents of the child shall be invested with every legal right in respect to obedience and maintenance on the part of the child as if said child had been born to them in lawful wedlock; and the child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock; provided , said child shall not be capable of taking property expressly limited to the heirs of the body of the adopting parent or parents, nor property coming from the collateral kindred of such adopting parent or parents by right of representation; and provided also , on the death of the adopting parent or parents and the subsequent death of the child so adopted, without issue, the property of such adopting deceased parent or parents shall descend to and be distributed among the next of kin of
said parent or parents and not to the next of kin of the adopted child; and provided also , if such adopting parent or parents shall have other child or children, then, and in that case the children by birth and by adoption shall, respectively, inherit from and through each other as if all had been children of the same parents born in lawful wedlock; * * *."
The critical language in the case at hand is that contained in the second proviso quoted. The answering defendants take the position that its effect was to create in the adopted child, Thelma, upon the death of her adoptive mother intestate, only a base or determinable fee in the realty of which Edna A. Page was seized, not a fee simple absolute, subject to the limitation that if she died without issue her surviving, the property should revert to the next of kin of her parent. If that construction is sound, the quantum of the estate inherited by Thelma Adams Page is less than absolute until it is ascertained whether she leaves issue at her death, and plaintiff has no marketable title by Thelma's deed.
Plaintiff argues, however, that the statutory proviso is intended not to qualify the quantum or quality of estate taken by the adopted child but only to govern the devolution of the title if the property is still held, undisposed of, by the child at his death intestate and without issue surviving. In this view of the statute Thelma Adams Page was empowered to convey the fee when she executed her deed to the plaintiff and to her husband in 1935 and the title tendered the defendants Johnson is good. For reasons set out hereinafter the court agrees with the position of the plaintiff.
Defendants do not dispute that the legal relationships declared by the New Jersey adoption statute are here applicable, notwithstanding that the Page adoption proceedings were consummated by the decree of a Massachusetts court. Greaves v. Fogel , 12 N.J. Super. 5 (App. Div. 1951), overruling Frey v. Nielson , 99 N.J. Eq. 135 (Ch. 1926), a result approved in Munson v. Johnston , 16 N.J. 31, 35 (1954). [45 NJSuper Page 103] Defendants rely upon Assmann v. Friedman , 103 N.J. Eq. 147 (Ch. 1928). There a suit for specific performance of a contract of sale of realty was instituted by a vendor whose grantor, as in the case sub judice , had inherited the property as an adopted child. The defense, as here, was that the title was defective because of the alleged statutory contingent reverter. The court held that the construction of the statute was a matter of doubt and it denied relief, applying the rule that "specific performance will not be enforced where there is doubt in the mind of the Court of Chancery as to the marketability of the title." Since the court did not enter upon a determination of the legal issue, its action is a precedent only in respect of the scope of the equitable remedy, not as to the correct construction of the statute. And so far as concerns the remedy the situation at hand is distinguishable in that here there is, in addition to the demand for specific performance, a demand for relief by way of declaration of rights in respect to the title, pursuant to N.J.S. 2 A:16-53 (substantially identical with section 2 of the Uniform Declaratory Judgments Act), providing that "a person * * * whose rights * * * are affected by a statute * * * may have determined any question of construction * * * arising under the * * * statute * * * and obtain a declaration of rights, status or other legal relations thereunder." Since the holders of the alleged outstanding possibility of reverter have been joined as parties to this action and will consequently be bound by the judgment, a determination that the title is marketable and ordering specific performance will ...