Decided: June 22, 1964.
IN THE MATTER OF THE ESTATE OF WALTER A. SELTMANN, DECEASED. MONTCLAIR NATIONAL BANK AND TRUST COMPANY, PLAINTIFF-RESPONDENT,
ELAINE C. BARNWELL, CLAIMANT-RESPONDENT, AND JOSEF FREDERICK SELTMANN, CLAIMANT-APPELLANT
For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- Justice Hall. Hall, J. (dissenting).
[42 NJ Page 498]
The testator executed his will in 1936 and died shortly thereafter. The question is whether a child adopted by the testator's son is a "child" of the son within the meaning of the will. On motion for summary judgment the trial court held the adopted child was not, relying upon In re Wehrhane, 23 N.J. 205 (1957). We certified the appeal before argument in the Appellate Division.
The case is controlled by the opinion filed today in In re Coe, 42 N.J. 485 (1964), and for the reasons there given the judgment must be reversed. The respondent, who is the natural daughter of the testator's son, states that she has competent evidence to show the testator did not intend her adopted brother to take, and asks that if the judgment should be reversed, she be afforded an opportunity to offer proof she did not present because it was unnecessary in the light of the trial court's ruling. She should be afforded that opportunity. We of course intimate no view as to what evidence, if any, is admissible to that end.
The judgment is reversed and the matter remanded for further proceedings not inconsistent herewith.
HALL, J. (dissenting).
I would affirm the judgment for the reasons expressed in the dissenting opinion filed today in In re Coe, 42 N.J. 485 (1964).