Gaulkin, Foley and Collester. The opinion of the court was delivered by Foley, J.A.D.
Respondent appeals from a judgment of the County Court affirming a judgment of the Workmen's Compensation Division which awarded Frank Michael Stellmah, Jr., an infant, dependency benefits provided for in N.J.S.A. 34:15-13.
The undisputed facts, mainly stipulated, are as follows: On June 26, 1961 Frank M. Stellmah, Sr. suffered an accident which arose out of and in the course of his employment by respondent. He died the same day. Surviving were his widow, the petitioner herein, a seven-year-old child of the marriage Susan L. Stellmah, and Frank M. Stellmah, Jr. (Frank), two years and seven months of age.
Frank is not related by blood or marriage to either the petitioner or her deceased husband. He was born in Montreal, Canada, on September 25, 1958, and was placed for adoption
with La Societe D'Adoption et de Protection de L'Enfance in Montreal. In July of 1958 Mr. and Mrs. Stellmah applied to the Catholic Welfare Bureau of Trenton, a state approved adoption agency, for the adoption of a child. In February 1960, through that agency, they were notified by the Societe that a child was available for adoption in Montreal. The Stellmahs went to that city and on February 26, 1960 received Frank. Simultaneously they executed an affidavit of support and a written agreement which stated in part that:
"The Party of the Second Part recognizes that the custody of said child is in view of a future legal adoption. * * *"
Since then Frank has resided continuously in the Stellmah household.
In the normal course of events Frank would have been adopted on or about February 26, 1961, i.e., one year after the placement. However, he developed a speech problem, and approval for adoption was postponed pending the completion of tests which were designed to determine whether the speech difficulty was merely functional in nature, or whether it was due to an organic lesion. The last of the tests was completed on June 2, 1961, and on June 19, 1961, one week prior to the fatal accident, a doctor associated with the Hunterdon Medical Center transmitted to the Catholic Welfare Bureau a report in which he stated that he did not find evidence of any gross nervous system abnormality or deficit, and recommended a thorough physical and psychological examination. However, it was the doctor's opinion that delay of the adoption was not necessary.
Adoption proceedings were commenced in the Montreal Social Welfare Court on August 3, 1961. A "certificate of judgment" was rendered on September 11, 1961, ordering the adoption of the child by Frank M. Stellmah and his wife, but this was after the fatal accident. While it is not an issue in the case, we pause to question the legality or propriety of an award of adoption to a deceased person.
Respondent acknowledged that Stellmah's death was compensable and commenced the payment of dependency benefits to the widow and the infant Susan. However, it denied liability to pay dependency benefits to Frank upon the ground that he was not a legally ...