Charlotte A. Coe ("testatrix") died on September 8, 1897 leaving a last will and testament dated September 1, 1897 which was duly admitted to probate. The National Newark and Essex Banking Company of Newark ("bank"), substituted trustee under said will, applies for instructions as to the proper method of distributing the corpus of the trust and for approval of its final account. This action was prompted by the death on September 13, 1960 of Theodora Margery Coe Tipton, the life tenant under the testamentary trust ("life tenant").
Part of the trust estate consists of land ("Coe parcel") located at the southwest corner of Washington and Plum Streets, Newark, New Jersey, and designated by testatrix in paragraph Fifth of her will as "my houses and lots on Plum Street."
Philip J. Bowers & Co. ("Bowers") instituted the second action seeking specific performance of an agreement to purchase the Coe parcel. Bowers and/or its assignee R.H. Macy & Co., Inc. ("Macy") are in possession of the Coe parcel under a 1925 lease entered into by their assignor, Aetna Realty Company, the former trustee and certain remaindermen then existing under the Coe will. The lease, inter alia , provides for the purchase of the Coe parcel at the termination of the life estate at a price to be determined by appraisal of the land plus $5,000, the agreed value of the building thereon at the time of the making of said lease agreement. The lease was renewed in 1955 wherein the provision for sale in the 1925 lease was ratified and confirmed. Some of the defendants in the Bowers action answered that they are not bound by their ancestors' signatures on the 1925 lease, and since they are not signatories to the 1955 lease, they are not obliged
to convey their interests in the subject property to Bowers. The bank suit and the Bowers suit were consolidated for trial.
Following the original pretrial conference some of the defendants raised the point that the Coe parcel had been augmented by one-half of the bed of the former Plum Street, abutting thereon, upon the vacation of that street by the City of Newark in 1950. As a result, the administratrix of the life tenant's estate and certain remaindermen asserted counterclaims against the bank, alleging failure to charge and collect additional rent from Bowers or Macy with respect to the street bed section of the Coe parcel.
The bank denied these charges, but nevertheless asserted a third-party claim against Bowers and Macy to the effect that if the bank were liable to the counterclaiming defendants, any recovery should rightly be borne by Bowers and Macy, who at all times have been in possession of the Coe parcel.
At the supplemental pretrial conference it was agreed that certain preliminary issues be severed for trial. These issues, presently considered, relate to the construction of the Coe will, including a determination as to which defendants have an interest in the Coe parcel, the extent of same, and whether the adopted children of Theodora Margery Coe Tipton are entitled to a $50,000 bequest.
The life tenant came to live with testatrix and her husband Theodore as a child. She was raised by them but never formally adopted in testatrix's lifetime. Theodore Coe lawfully adopted the life tenant on January 27, 1899. He died on April 20, 1916.
The life tenant married Arthur C. Tipton on September 3, 1907 and thereafter lawfully adopted two daughters, to wit, Theodora Coe Tipton (Warren) on July 10, 1916, and Margaret Ann Tipton (Coles) on September 6, 1935 ("adoptees"). The life tenant had no natural children.
The pertinent provision in the Coe will under which the adoptees claim the $50,000 bequest is paragraph Fourth in
which testatrix left the residue of her estate in trust and directed her trustees to pay one-half of the net income to her husband, Theodore Coe, during his life or until his remarriage, and the remaining one-half to the life tenant during her life. It further provided that:
"Upon the death or remarriage of my said husband and the death of said Theodora Margery Coe, I order and direct that my said trustees, or the survivor, or survivors, of them shall hold the sum of Fifty Thousand Dollars, of the corpus of my estate, in trust, for the lawful children of the said Theodora Margery Coe, to pay the income for their maintenance, support and education during their minority, and to pay over their respective shares of the corpus to such of them as reach the age of twenty-one years, upon their attaining that age; and if no child of the said Theodora Margery Coe survives to attain the age of twenty-one years, then I order that the said corpus shall be distributed as hereinafter provided."
The judicial function in construing a will is to ascertain and give effect to the probable intention of the testatrix. In ascertaining her subjective intent, primary emphasis is given to her dominant plan and purpose when read and considered in the light of the surrounding facts and circumstances. Fidelity Union Trust Co. v. Robert , 36 N.J. 561 (1962).
In the case of In re Wehrhane , 23 N.J. 205 (1957), the court concluded that the word "issue" as used in that will did not include adopted children, and in the course of its opinion stated at page 208:
"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."
Justice Jacobs in the concurring opinion observed that:
"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. * * *"
In the case sub judice the will of the testatrix was executed in 1897 and is therefore not affected by the cited statutory change in the rule of construction.
The prior decisions on this subject are extensively reviewed in the persuasive dissenting opinion in Wehrhane of Chief Justice Weintraub (then Justice). He refers to the enactment in 1877 of the Adoption Law, L. 1877, c. 83; R.S. 9:3-9, which "embodied a common recognition that parental and filial bonds are essentially equal, whether the affiliation be biological or sociological, and provided for inheritance by adopted children in harmony with that common understanding." In re Wehrhane, supra , at page 214. The Chief Justice is of the view that an adopted child should take unless an intent to exclude is patent.
In opposition to the claim of the adoptees it is urged that the life tenant was never adopted by the testatrix, that after her death the surviving husband adopted the life tenant, and that years later the adoptees were adopted by the life tenant. Thus it is asserted that the testatrix was a "stranger to the adoption." In re Fisler , 131 N.J. Eq. 310 (Prerog. 1942), affirmed 133 N.J. Eq. 421 (E. & A. 1943); Ahlemeyer v. Miller , 102 N.J.L. 54 (Sup. Ct. 1925), affirmed 103 N.J.L. 617 (E. & A. 1927). The fact that in paragraph Second of the will testatrix bequeathed jewelry to the life tenant and stated that she "has become as a daughter to me, for whom I feel the affection of a mother to a daughter," does not help the cause of the adoptees. The New Jersey Adoption Act
(L. 1877, c. 83) had been in existence for 20 years preceding the death of testatrix. Yet the testatrix never adopted the life tenant. This, it is urged, may indicate that while the testatrix held great affection for the life tenant, she did not think in terms of family augmentation by adoption. If she did not have such intentions with respect to the life tenant, then it is argued that she did not intend to include the latter's adoptees within the description of "lawful children." (In Wehrhane there was testimony indicating that testatrix herself had considered adopting a child at one time.)
It is further observed that in Wehrhane the disinheritance of the adopted son disinherits a grandchild in favor of a stranger whom her natural daughter might marry, a second cousin six steps removed and charities. In the instant case the disinheritance of the adoptees enures essentially to the benefit of grandnephews and grandnieces.
The adoptees urge that the life tenant, the primary beneficiary, was only a foster child of the testatrix. Hence, the testatrix had no preference for collateral blood descendants, some of whom she never knew. Although testatrix did not adopt the life tenant, she regarded her as a "daughter" and so described her in the will. It is further urged that in Wehrhane the court was concerned with the term "issue" and hence that decision is not controlling. The term "issue" may evidence an intent to include only blood relatives, whereas the term "children" is less restrictive. Attention is also directed to the particular provision in the Adoption Law, L. 1877, c. 83, which invests the adopted child with certain rights of inheritance and makes such adopted child the lawful child of the adopting parent. In re Book , 90 N.J. Eq. 549 (E. & A. 1919). While In ...