This is an action to construe the will of Charles C. Burke who died on May 5, 1924, a resident of Plainfield, New Jersey. His will, dated February 1, 1921, was probated in the Prerogative Court of New Jersey on May 19, 1924. Inter alia , the will established a trust for the benefit of testator's daughter, Augusta B. Benedict, for life. Mrs. Benedict died on February 2, 1957, thereby terminating the trust. She had no natural-born children and was survived by her husband and two adopted children, namely, Carol W. Benedict and Stewart Benedict, Jr. She was also survived by brothers and sisters and the issue of deceased brothers and sisters.
Paragraph "Sixth" of the will provides that upon the death of the testator's daughter (Augusta B. Benedict), the principal of the trust fund, shall be paid over "to her issue then living, if any, * * *," and in case the daughter "shall die without leaving any issue her surviving, then and in that case my said trustees shall convey and pay over the fund so held in trust for her * * * to those persons who, under the laws of the State of New Jersey in effect at the time of her death, would be entitled to take such property if it were all personalty and such daughter had died a resident of New Jersey, owning the same intestate and without leaving a husband her surviving."
The two adopted children of Augusta B. Benedict claim that they are entitled to the principal of the trust fund under paragraph "Sixth" of the will. The balance of said principal, as shown by the trustee's final accounting amounts to approximately $335,000.
However, paragraph "Eighth" of decedent's will provides as follows:
"I hereby declare that in all cases in which in and by this Will, I have referred to children, grandchildren, issue or descendants or to persons who would be entitled to take any property as if in case of an intestacy, I exclude from all and every such classes all persons who might be included therein because of their being adopted children or descendants of or persons claiming through adopted children. The word issue as used in this Will means direct descendants in whatever degree."
The argument that the two adopted children of Augusta B. Benedict (the life tenant) should be paid the principal of the trust fund is based on the reasoning that on a moral and just construction of paragraph "Sixth" of the testator's will, adopted children should have the same standing and receive the same treatment as natural-born children. The adopted children, therefore, according to the argument advanced, are clearly entitled to the principal of the trust fund under paragraph "Sixth" of the will, either as "issue" of the life tenant, or as "persons * * * entitled to take * * *" should the life tenant die without leaving issue her surviving. Continuing the argument, it is then reasoned that paragraph "Eighth" of the will conflicts with paragraph "Sixth" since it attempts to take away from the adopted children what they have already been bequeathed. The conclusion urged upon the court is that the earlier provision must prevail and that paragraph "Eighth" be disregarded. In the event that the court should find no conflict between the two paragraphs of the will, it is then submitted that paragraph "Eighth" of the will is against public policy because it attempts to discriminate against adopted children by excluding them as issue, or next of kin, of their adopting parent.
Granted that the present trend of the law is to eliminate as much as may be possible, the legal distinction between adopted children and natural born children, there is no such public policy as is contended for. A testator may dispose of his estate as he sees fit and may even exclude one or more or all of the members of his own family. So long as a testator possesses testamentary capacity, the courts may not invalidate his will in whole or in part because it does not comport with the courts' ideas of fairness or equality. A testator may exclude the adopted children of his daughter as beneficiaries under his will. He may prefer natural born grandchildren and exclude "adopted" grandchildren. We may disagree with his testamentary plan but there is nothing against public policy in it.
The present adoption act of 1953, N.J.S.A. 9:3-17 et seq. , at 9:3-30(B), has the following language:
"In the construction of any testamentary or other document executed subsequent to the effective date of this act, an adopted child shall be deemed lawful issue of the adopting parent unless such document shall otherwise provide."
The foregoing makes it clear that even under the present act, if the instrument so specifies, adopted children may be excluded ...