For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Schettino, J.
This is an appeal from a judgment of the Appellate Division, 88 N.J. Super. 131 (App. Div. 1965), which had reversed the Hunterdon County Court's affirmance of a judgment of the Workmen's Compensation Division awarding death benefits under N.J.S.A. 34:15-13 to a child who was allegedly adopted in the Province of Quebec, Canada. We granted certification on plaintiff's application, 45 N.J. 587 (1965).
Because of the unusual nature of the case we set forth the facts at length. On June 26, 1961 Frank M. Stellmah, Sr. suffered an accident which admittedly arose out of and in the course of his employment with respondent, Hunterdon Cooperative G.L.F. Service, Inc. He died that same day leaving surviving him the petitioner, Laila M. Stellmah, his wife, and a seven-year-old daughter, Susan. His widow claimed death benefits under N.J.S.A. 34:15-13 for herself, her daughter and her "adopted" son, Frank M. Stellmah, Jr. At the time of his death Frank M. Stellmah, Sr. was earning $105 per week.
Respondent paid the required medical, hospital and funeral expenses and also paid to the widow and her daughter "40% of wages" as required by N.J.S.A. 34:15-13(b). But respondent refused to pay such benefits to Frank M. Stellmah, Jr. on the grounds that he was not "legally adopted" within the meaning of N.J.S.A. 34:15-13(g) which defines "dependents", to whom death benefits must be distributed as including:
"* * * any or all of the following who are dependent upon the deceased at the time of accident or the occurrence of occupational disease,
or at the time of death, namely: Husband, wife, parents, stepparents, grandparents, children, stepchildren, grandchildren, child in esse, posthumous child, illegitimate children, brothers, sisters, half brothers, half sisters, niece, nephew. Legally adopted children shall, in every particular, be considered as natural children."
Thereafter, petitioner brought a Workmen's Compensation Court action claiming death benefits for Frank, Jr. as the "legally adopted" son of Frank M. Stellmah, Sr.
It is stipulated that Frank, Jr. is not related by blood or marriage to either decedent or his widow. He was born in Montreal, Canada, on September 25, 1958. He was placed for adoption with La Societe D'Adoption et de Protection de L'Enfance in Montreal in the Province of Quebec, Canada.
In July, 1958, the Stellmahs applied to adopt a child through the Catholic Welfare Bureau, Trenton, an agency approved under N.J.S.A. 9:2-13(a) for the placement of children with adopting parents. In February 1960 they were notified by the Societe through the Trenton Bureau that a male child was available for adoption in Montreal. On February 24, 1960 the Stellmahs went to Montreal where they obtained custody of Frank, Jr. by executing an affidavit of support and a written agreement with the Societe, as Party of the First Part, dated February 29, which stated:
"1 degree THE PARTY OF THE SECOND PART [Stellmah] hereby agrees to take custody of a child born on the 25th day of September 1958 * * *.
2 degree THE PARTY OF THE SECOND PART recognizes that the custody of the said child is in view of a future Legal Adoption."
The child was brought to New Jersey, immigrating by virtue of a visa as a "non-quota immigrant", 8 U.S.C. § 1101 (a) (27) (C) (1952) as amended (Supp. IV, 1957).
The adoption should have become final on or about March 1, 1961 under the Quebec Adoption Law, R.S.Q. 1941, c. 324, § 13, which provides that after a probationary period of one year after a custody agreement is signed, the adoptive
parents should apply to the Social Welfare Court for a judgment of adoption.
However, the child developed a speech defect and approval of the adoption was postponed by the Trenton Catholic Welfare Bureau so that the Stellmahs could have Frank, Jr. examined to determine whether the defect was organic, i.e., a nerve system or brain disorder, or merely psychological. The examination was accomplished at the Hunterdon Medical Center by Dr. Avrum Labe Katcher, Director of Pediatric Services, who reported on June 19, 1961 that there was no evidence of any gross central nervous system abnormality or defect. Doctor Katcher advised the immediate completion of the adoption procedure. Thus, on June 19, 1961 the Stellmahs were in an immediate position to complete the adoption procedure. One week later Frank, Sr. died from his work-connected injuries.
The adoption proceedings were nevertheless continued and on August 3, 1961 -- some five weeks after decedent's death -- a hearing was had in the Social Welfare Court which rendered a judgment of adoption on September 11, 1961. Although no records are maintained as to what transpired at the hearing,*fn1 the judgment contains the following statement:
"Judgment has been rendered on the eleventh day of September 1961 ordering the adoption by FRANK MICHAEL STELLMAH, Skilled Worker and LAILA MARION SMULL, his wife, * * * of FRANK MICHAEL STELLMAH, Jr. * * *."
A new birth certificate was issued by the Presbytere de Saint-Jacques (repository of the register of Civil Status for the child) on September 20, 1961.
Respondent does not question the legality of this adoption but contends that, as the effective date of the adoption was some eight weeks after the ...