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Nickell v. Gall

Decided: March 24, 1966.

PATRICIA AGNES NICKELL, PLAINTIFF,
v.
CLAIRE M. GALL, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF CONSTANCE M. ZACK, DECEASED, AND AS EXECUTRIX OF THE ESTATE OF MARY MAYAUSKAS, ALSO KNOWN AS MARY MAJOSKA, DECEASED, ET AL., DEFENDANTS



Mintz, J.s.c.

Mintz

This matter is before the court on defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted. R.R. 4:12-2(e).

Plaintiff in her complaint seeks to establish that she is the sole heir at law of decedent Constance M. Zack, who died intestate in Essex County on October 23, 1964. Plaintiff is decedent's sole natural child. Besides plaintiff, he was survived by three sisters and a brother, one of whom was appointed administratrix of his estate.

Plaintiff in 1928, when she was approximately two years old, was adopted by her aunt and uncle, Agnes and Charles Dunlap. In accord with the laws of that time, the adoption decree cut off all existing rights, privileges and duties between plaintiff and decedent "except for the right of inheritance." The adoption statute in effect in 1928 (L. 1902, c. 92, as amended) expressly reserved this right of inheritance.

In 1953 the New Jersey Legislature enacted as part of new adoption legislation N.J.S.A. 9:3-30, which provides:

"A. The entry of a judgment of adoption shall terminate all relationships between the child and his parents, and shall terminate all rights, duties, and obligations of any person which are founded upon such relationships, including rights of inheritance under the intestate laws of this State; * * *.

B. The entry of a judgment of adoption shall establish the same relationships, rights, duties and obligations between the child and the adopting parent as if such child were born to such adopting parent in lawful wedlock. In applying the intestate laws of this State, an adopted child shall have the same rights of inheritance as if born to the adopting parent in lawful wedlock. 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."

Defendants contend that plaintiff's rights of inheritance by intestacy were terminated by the 1953 statutes. They argue that In re Holibaugh's Will, 18 N.J. 229 (1955), is dispositive of the issue here presented. Holibaugh concerned the exact same situation but under the adult adoption statute. The court there held that the statutes in effect at the time of decedent's death controlled as to intestate succession and that the right to inherit property in the future is not a vested right. The court said:

"* * * The Legislature has power to change the course of descent, and such change will operate instantly upon all estates which may subsequently descend. The law existing at the time of descent cast governs the right to inherit. A mere expectation of property in the future is not considered a vested right, and hence 'the rules of descent are held subject to change in their application to all estates not already passed to the heir by the death of the owner.' Cooley, Const. Lim. (6 th ed.) 439. Wunderle v. Wunderle, 144 Ill. 40, 33 N.E. 195, 199, 19 L.R.A. 84 (Sup. Ct. 1893). See also McCormick v. Hall, 337 Ill. 232, 168 N.E. 900 (Sup. Ct. 1929), 66 A.L.R. 1062." (at p. 235)

Plaintiff urges that Holibaugh is distinguishable in that the language of this statute, particularly the repealer provision, N.J.S.A. 9:3-34, shows a different legislative intent

than in the adult adoption statute, the subject of consideration in Holibaugh. N.J.S.A. 9:3-34, entitled "Repeal of Prior Law," applicable to ...


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