For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For affirmance -- Justice Hall. The opinion of the court was delivered by Weintraub, C.J. Hall, J. (dissenting). Jacobs, J., concurring in result.
[42 NJ Page 486] The testatrix executed her will in 1897 and died in that year. In the will she provided for Theodora Margery Coe, "who has been living with me nearly all her life and has been maintained and educated by me and has become as a daughter to me, for whom I feel the affection of
a mother to a daughter." Theodora was an infant when she came to the decedent and was ten years old at decedent's death. Decedent never formally adopted Theodora. Theodora married, had no natural children, but did adopt two daughters. The question is whether they take a bequest to "lawful children" of Theodora. The trial court held the adopted daughters of Theodora were not her "lawful children" upon the authority of In re Wehrhane, 23 N.J. 205 (1957). In re Estate of Coe, 77 N.J. Super. 181 (Ch. Div. 1962). We certified their appeal before the Appellate Division acted upon it.
Our first adoption law was enacted in 1877 (c. 83). Its pertinent provisions appeared in R.S. 9:3-9 (since superseded by N.J.S.A. 9:3-30, enacted in 1953, c. 264, § 14), in these terms:
"Upon the entry of a decree of adoption * * * 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 the distribution of personal estate, on the death of such adopting parent or parents, as if born to them in lawful wedlock; subject, however, to the limitations and restrictions hereinafter in this section set forth.
The adopted 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.
If the adopting parent or parents shall have other child or children, 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."
In Wehrhane the testatrix provided for a gift over upon her daughter's death "to the issue of my * * * daughter per stirpes." A bare majority of the court held that the adopted son of the daughter could not take. One member concurred on other grounds, and another dissented. The majority said in part (23 N.J., at p. 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."
The reference to "child" and "children" was dictum since the will spoke of "issue * * * per stirpes," but nonetheless as a trial court the court below in the present case quite properly felt it should abide by the quoted statement.
The pertinent decisions in this State are reviewed at length in the majority and dissenting opinions in Wehrhane and we see no benefit in repeating the discussions in detail. It will suffice to speak in terms of the broad concepts involved.
The majority opinion viewed the quoted provision of the adoption law to establish a rule of inheritance as between the adopting parent and the adopted child, and not "a rule of testamentary construction" (23 N.J., at p. 209). It held the statute cannot control and indeed is not relevant in the interpretation of a will except, we assume, where the testator is the adopting parent, in which event words such as "issue" would be found to include the adopted child in light of the relationship created by the adoption act. But as to instruments executed by "strangers to the adoption," meaning anyone other than the adopting parent, the majority held such words mean only descendants of the blood unless it appears from the instrument or attendant circumstances that adopted children were intended to be included.
As the majority opinion in Wehrhane points out, its result prevails in a majority of the states. Litigation has been prolific, see Annotations, 86 A.L.R. 2 d 12 (1962) and 86 A.L.R. 2 d 115 (1962), and perhaps the very volume ...